concurring in part and dissenting in part.
I agree that the district court’s adjudications of juvenile delinquency should be affirmed in regard to Count I and Count II. I respectfully dissent from the majority’s affirmance in regard to Count III.1
I.
I agree with the majority’s statement that “[rjobbery, under § 2111, is the taking of anything of value from the person or presence of another by force and violence or by intimidation.” At 782. The crime of robbery, as the majority correctly paraphrased Section 2111, is directed against the taking of property from a particular person or in the presence of another particular person by force and violence, or by intimidation. See at 782. Three essential elements must be proven beyond reasonable doubt in order to establish a violation of Section 2111: First: The act or acts of taking, from the person or presence of another, anything of value; Second: The act or acts of taking such property or money by force or violence, or by means of intimidation; and Third: Doing such act or acts willfully. See 2 Devitt & Blackmar, Federal Practice and Jury Instructions, § 44.03 (3d ed. 1977).2
The question of when a defendant may have employed force, violence or intimi*783dation in order to take property from or in the presence of a particularly named person or persons is a factual question that must, in my view, be supported by the evidence in a particular case. Norris v. United States, 152 F.2d 808 (5th Cir.1946), cert. denied, 328 U.S. 850, 66 S.Ct. 1118, 90 L.Ed. 1623 (1946),3 makes clear that the common law crime of robbery and the various federal statutory offenses of robbery have substantially the same essential elements. Most significantly, for purposes of this case, Norris added that the “violence or putting in fear must be at the time of the act or immediately preceding it.’’ (Emphasis added). Id. at 809.
I turn now to how I believe the principles stated should be applied to the factual circumstances of this case.
II.
Count III alleged that the defendant “became a juvenile delinquent in that he did willfully and unlawfully by force and violence and by intimidation, take from the person and presence of Mary Marcella Cot-tier, Rose Marie Cottier and Clifford Allen Grass, things of value, that is, a towing chain, handyman jack, toolbox with tools and assorted grocery items, property of Bert Cottier, Mary Marcella Cottier and Rose Marie Cottier, in violation of 18 U.S.C. §§ 1153 and 2111.”
The district court made an express finding that “the tool box, ... was taken by the Defendant willfully and unlawfully and by force and violence and by intimidation from the presence of the persons in the pickup, including Marcella Cottier, Rose Marie Cottier and Clifford Allen Grass____” (Tr. 178). I agree with the majority’s statement that the district court found Lori Ann Cottier’s testimony to be “particularly credible” for the reason that it found that she was the only witness that had not been drinking and that it “relied principally on [her testimony] in making [its] findings of fact.” At 781.
I do not, however, agree with the majority’s conclusion that Lori Ann’s “testimony establishes all the elements of a violation of 18 U.S.C. § 2111.” At 782. It is my view that the government failed to adduce sufficient evidence to support any findings of fact that at the time W.T.T. took the toolbox, he did so (1) “by force and violence, or by intimidation,” or (2) “from the person or presence of another,” both of which are essential elements of a Section 2111 robbery offense.4
III.
A.
It is to be noted as a preliminary matter that the district court did not make a lesser *784included offense finding of larceny in regard to Count III in the manner that it made lesser included offense findings in regard to Counts I and II.5 In regard to both Count I and Count II, the district court concluded that the evidence did not support a finding that W.T.T. had assaulted Grass “with a deadly weapon” or that W.T. T.’s alleged assault resulted “in serious bodily injury.” The district court recognized, of course, that Lori Ann had testified that the defendant had a knife in his hand at some time during the general melee.
It concluded, however, that the defendant could be found guilty only of the lesser included offenses in regard to both Count I and Count II. The district court appropriately explained that “it is one thing to find that the Defendant had a knife in his possession, but it is yet another thing to find that he actually stabbed Mr. Grass.” (Tr. 175).6
The fact that the record may contain, sufficient evidence to support a finding that W.T.T. committed the lesser offense of larceny, as I believe it does, does not answer the question of whether the record contains sufficient evidence to support the district court’s finding that at the time the defendant took the toolbox, he did so “by force and violence and by intimidation from the presence of the persons in the pickup.” (Tr. 178). I do not believe that the evidence adduced was sufficient to support such a finding.
B.
In spite of the substantial variance in the testimony of the drunken witnesses, excepting only Lori Ann, it is reasonably clear that Grass was not “in the pickup” (as the district court found) at the time the toolbox was taken.7
The majority does not cite any page of the transcript to support the statement made in its discussion of Count III that “[when] ... W.T.T. took the toolbox ... Grass was either crawling through the cab of the truck or collapsed on the ground beside Rose Cottier.” At 782. (Emphasis added). I find nothing in the record to support such a statement. Certainly the district court did not make any finding of fact in that regard. The only testimony I find in the transcript about Grass crawling through the cab was that given by Lori Ann when she testified in response to the district court’s questions that after Grass had been stabbed by someone “he crawled out of the pickup and he crawled over to my Mom, Rose. He crawled over to her and he laid there____” (Tr. 134).
The only testimony Lori Ann gave in regard to the time when the toolbox may have been taken was given in connection with her testimony in regard to when she *785left the scene to call the police. She testified that:
A. ... my Mom was, she was laying on the ground and she was crying. [Grass] laid down beside my Mom [and] was trying to make my Mom get up and run [and] he pulled her across that fence ... So I started running and we went to call the cops.
Q. Before you left, had the items been removed from the pickup, the groceries and everything else?
A. Yes.
(Tr. 119).
Lori Ann’s affirmative answer to the government’s leading question, in my view, simply supports an implicit finding of fact that the toolbox was taken at some unidentified time before Lori Ann left to call the police. Her testimony does not, in my view, support a finding of fact that at the time the toolbox was taken, it was taken “from the presence of the persons in the pickup,” as the district court found.
For there is no question that Eose Cottier was not “in the pickup.”8 Nor was there any evidence where Marcella Cottier may have been at any time. Certainly no one testified that she was, in fact, in the pickup. And there was no evidence that Grass was crawling through the cab at the time the toolbox was taken. For the time the toolbox was taken was never established by anyone's testimony.
C.
Nor do I believe that Lori Ann’s testimony can be said to support a finding of fact that at the time the defendant took the toolbox, he did so “by force and violence and by intimidation" as alleged in Count III.9 Lori Ann did not testify that anyone was in the pickup when the toolbox was taken. Nor did she testify that the defendant had a knife in his hand at the time he took the toolbox or that he at any time brandished the knife in the presence of the particular persons named in Count III when the toolbox was taken.
Neither Lori Ann nor any other witness testified that Mary Marcella Cottier, Eose Marie Cottier or Clifford Allen Grass, the particular persons named in Count III, were, in fact, intimidated by the defendant when he took the toolbox or that the defendant, in fact, took the toolbox from the person and presence of those persons by force and violence.
So far as the record is concerned, W.T.T., in the confusion and chaos of the general melee, could have simply lifted the toolbox out of the pickup without directing any force, violence, or intimidation toward anyone. The fact Grass and Eose Cottier were beaten during the course of that general melee does not, in my view, establish that W.T.T. beat them in order to be able to take the toolbox from the pickup truck.
I cannot believe that Congress intended that a person should be convicted of a violation of Section 2111 and subjected to a fifteen-year sentence unless the government establishes beyond reasonable doubt that the taking of the property was, in fact, accomplished by force and violence or by intimidation.
IV.
I do not believe that the majority’s partial quotation of a sentence, at 782, from the Ninth Circuit’s per curiam opinion in United States v. Burns, 701 F.2d 840, 843, (9th Cir.) (per curiam), cert. denied, 462 U.S. 1137, 103 S.Ct. 3123, 77 L.Ed.2d 1375 *786(1983), supports its conclusion that the district court must have implicitly made a Count III finding that the persons in the pickup failed to retain possession of the toolbox because they had been, in fact, “overcome by violence or prevented by fear” from doing so. At 782.10 For I believe the factual circumstances presented in that case are clearly distinguishable from those presented in this case.
Burns involved two almost simultaneous robberies in Indian country. The first involved the robbery of a smoke shop; the second robbery “also occurred in the smoke shop, in the midst of the first robbery.” Id. at 841. Burns described the second robbery as follows: “Burns approached the victim, Fillmore and, at gunpoint, demanded the keys to Fillmore’s car. After Fillmore told Burns that the keys were in the car, Burns left the shop and stole the keys and the car.” Id.
Certainly under those factual circumstances, I believe it obvious that there was sufficient evidence to support the instruction given in Burns under which the jury could find, as it did, that Fillmore’s car was taken by force and violence or by intimidation within the meaning of Section 2111. There can be little doubt that the jury determined under the district court’s instruction that Fillmore, in fact, feared that he would be shot if he followed the defendant out of the smoke shop and attempted to keep the defendant from taking his car.11
The Burns court was primarily concerned with whether it was required to follow the earlier Ninth Circuit per curiam opinion in United States v. Culbert, 548 F.2d 1355 (9th Cir.1977) (per curiam), rev’d on other grounds, 435 U.S. 371, 98 S.Ct. 1112, 55 L.Ed.2d 349 (1978), the reasoning of which Burns recognized had been consistently rejected by other circuits, citing United States v. Alessandrello, 637 F.2d 131, 144-45 (3d Cir.), cert. denied, 451 U.S. 949, 101 S.Ct. 2031, 68 L.Ed.2d 334 (1980); United States v. Hackett, 623 F.2d 343, 345 *787(4th Cir.), cert. denied, 449 U.S. 902, 101 S.Ct. 273, 66 L.Ed.2d 132 (1980).12
I have no quarrel with Burns; that case, in my view, is clearly distinguishable on its facts from this case. The record in this case, as I read it, does not contain any evidence to support a finding that at the time W.T.T. took the toolbox, he did so either by force, violence, or by intimidation from the person or in the presence of either Marcella Cottier, Rose Marie Cottier or Clifford Allen Grass, the three persons named in Count III, or, indeed, from any other person.
There was, in my view, sufficient evidence that may have supported a lesser offense finding of larceny. W.T.T., however, was not charged with larceny; nor did the district court make such a finding in regard to Count III. The district court’s Count III robbery finding should, in my view, be reversed.
V.
For the reasons stated, I would affirm the district court’s adjudication of juvenile delinquency made in connection with Count I and Count II and reverse the adjudication made in regard to Count III. Under principles stated in Scruggs v. United States, 450 F.2d 359, 364 (8th Cir.1971), in which the defendant was improperly sentenced under Section 2113(d), I would also vacate the sentence imposed by the district court and remand the case for imposition of a new sentence to be based solely on the district court’s findings as made in Count I and Count II.
. The sufficiency of the evidence question presented in regard to Count III is important for the reason the district court, acting pursuant to 18 U.S.C. § 5037, committed the juvenile to custody until he becomes twenty-one years old. A sentence of that length could not be imposed under either of the adjudications made under Count I or Count II.
. 67 Am.Jur.2d, Robbery § 14, p. 65, states that the "general rule is that it is essential, to constitute robbery, that the property in question be *783taken from the person of another, or from his possession in his presence, a characteristic distinguishing robbery from larceny.” That work also states that to support "a charge of robbery, the taking of the property must be achieved by force or violence, or by putting the victim in fear. The force or intimidation employed is the essence of the offense.” Id. § 22, pp. 76-77. And, in its specific discussion of "actual force or violence,” it is stated that "the force or violence element essential to robbery was lacking where the defendant allegedly scattered the contents of the victim’s purse on the sidewalk and took money and keys while the victim was fighting with another individual and where there was no evidence that the defendant participated with the other individual in a common scheme or plan to batter victim.” Id. § 23, p. 78.
. Norris was cited with approval by the Eighth Circuit in Bradley v. United States, 447 F.2d 264, 274 n. 19 (8th Cir.1971), vacated on other grounds, 404 U.S. 567, 92 S.Ct. 746, 30 L.Ed.2d 722 (1972).
. Although Count III of the amended information alleged that the defendant took “a towing chain, handyman jack, toolbox with tools and assorted grocery items,” inquiry is necessarily narrowed to the toolbox. For that was the only property the district court found that W.T.T. took from the pickup. Indeed, Lori Ann testified that Tim Brewer "took the handyman jack” and that she saw “Moon take some of the groceries.” (Tr. 118-19). There was no testimony that anyone took the “towing chain.” The district court expressly stated that "I don’t feel at all inclined to make any finding against the defendant based on the groceries.” (Tr. 176).
It is thus clear that the only evidence that the district court considered to be credible established that persons other than the defendant took three of the four items that the defendant was charged with taking.
. Certainly the district court could have done so. For, as stated in United States v. Belt, 516 F.2d 873, 875 (8th Cir.1975), “‘[i]t is beyond dispute that larceny is a necessarily a lesser included offense of the crime of robbery.’" The offense of larceny is included in 18 U.S.C. § 1153.
. The record, as I read it, does not support the implication in the majority opinion that the district court’s Count I and Count II lesser offense findings were based on its acceptance of Lori Ann’s testimony that "she saw W.T.T. use the knife on Grass,” at 781, and her testimony "as to his use of the knife on Grass." Id. at 782. The district court’s Count I and Count II lesser offense findings obviated the necessity of its making any finding in regard to the sharply disputed factual question of whether Grass had, in fact, been stabbed or whether he received his wound when he crawled under a barbed wire fence. Indeed, the majority recognized that Dr. Israel refused to express an opinion that Grass' wound was, in fact, a stab wound. At 781-82.
I believe that it is obvious that if the district court had, in fact, accepted Lori Ann’s testimony in regard to W.T.T.’s "use of the knife on Grass,” it would have found that the defendant had committed the aggravated offenses charged in Count I and Count II rather than finding that he only committed the lesser included offenses in regard to both those counts.
. The majority accurately stated in its discussion of Count I and Count II that “Grass was jacking up the pickup” when he was first assaulted, citing Tr. 109; that after Rose Cottier got out of the pickup and was thereafter knocked to the ground in a separate fight of her own, “Grass moved to protect her, lying on top of her,” citing Tr. 112; and that Grass thereafter unsuccessfully tried to get back “into the pickup,” citing Tr. 114-115. At 781.
. Lori Ann testified that at the time Clifford Allen Grass was being knocked to the ground, "Carol and Ollie ... was calling on my Mom, Rose Cottier, to get out [of the pickup truck] and fight them.” (Tr. 110). She further testified that her mother accepted that challenge and that thereafter "Ollie and [my] mother and Carol Tuttle were fighting at the same time this thing was going on with Clifford.” (Tr. 111).
. In regard to that separate essential element of a Section 2111 robbery offense, the majority simply noted Lori Ann’s testimony that "Grass and Rose Cottier had been beaten” and concluded that, thus, "her testimony establishes all the elements of a violation of 18 U.S.C. § 2111.” At 782.
. The sentence from which the majority partially quoted related to an instruction given by the district court. In regard to the instruction given, Burns concluded that it "was a correct statement of the law under the circumstances presented here” for the trial court to have "instructed the jury that property is in the presence of a person if it is ‘so within his reach, inspection, observation or control, that he could if not overcome by violence or prevented by fear, retain his possession of it.’” 701 F.2d at 843. (Emphasis added).
The government primarily cited Burns to support its argument that "[t]here is no requirement in a robbery case that the Government call the actual owner of the property to testify that he did not give the Defendant permission to take his property. The statute does not require that the taking be directly from the owner of the property.” Appellee’s Brief at 10. I do not believe that the district court's failure to find that the "towing chain, handyman jack, toolbox with tools and assorted grocery items” were, in fact, "the property of Bert Cottier," as alleged in the amended information, was in any way fatal.
I, of course, disagree with the government's secondary argument that the circumstances presented in Burns “is exactly the situation present in the case at bar,” id. at 785, for the reasons stated in the text.
. The principles applied to the facts in Burns were applied in United States v. Dixon, 469 F.2d 940 (D.C.Cir.1972). In that case Dixon and his co-defendant Smith positioned themselves on either side of one Cloey, knowing that Cloey had an envelope containing $500 in cash in his pocket. Smith stuck a pistol in Cloey’s side and said “Let me have it." Cloey attempted to toss the envelope to a stranger. Dixon knocked the stranger down before he could catch the envelope; the envelope fell on the sidewalk; Dixon picked it up and ran.
The Court of Appeals raised the following question sua sponte at oral argument, "whether Dixon’s act of picking up the envelope which Cloey attempted to throw to a stranger constituted a taking ‘from [Cloeys] person or immediate actual possession’ within the meaning of the robbery statute." Id. at 942. It answered in the affirmative concluding that "the episode for which appellants were convicted was a robbery rather than a larceny" for the reason that it was "plain that but for the deadly force displayed by appellants, Cloey would not have rid himself of the envelope.” Id. at 943.
An entirely different case would have been presented if the envelope had sailed out of sight through the cracks of a grating covering a below surface window well and was not retrieved by either Smith, Dixon, or Cloey. If some person, unassociated with Smith and Dixon, later retrieved the envelope from the window well by putting a piece of chewing gum on a stick, such a person would be guilty of larceny rather than robbery even if Cloey had been beaten as well as intimidated by Smith and Dixon.
. It is interesting to note that the Eighth Circuit had earlier rejected the reasoning upon which Culbert was based in Brinkley v. United States, 560 F.2d 871 (8th Cir.) cert. denied, 434 U.S. 941, 98 S.Ct. 435, 54 L.Ed.2d 302 (1977). Culbert apparently was not cited to the Brinkley court.