dissenting.
I regret that I cannot concur in the court’s conclusion that there was no evidence that the petitioners intended to deprive the Forest Pony Keg’s owner of his fifty dollars.
Notwithstanding “the intermingled nature” of Mr. Tuccinardi and his employer,1 Petitioner Farr, who testified in his own behalf at the robbery trial, did not assert that he thought the money belonged to anyone other than the owner of the store. Petitioners’ counsel made no such claim either, and I find nothing in the record to suggest that the petitioners supposed Mr. Tuccinardi kept his own money in the store’s cash register.
The record shows that Petitioner Farr, at least, knew that Mr. Tuccinardi was not self-employed. At the very outset of the robbery trial Mr. Farr’s lawyer told the court that when Mr. Farr first spoke with Mr. Tuccinardi in the pony keg, “Mr. Tuccinardi told Mr. Farr, ‘Come back Sunday. My boss will be back in town ... and I’ll have the money for you.’ ” (Emphasis supplied.) On cross-examination Mr. Tuccinardi confirmed that he had told Mr. Farr “I get paid on Fridays.” That was not the testimony, obviously, of someone who was self-employed — and Mr. Farr himself testified “I was not acquainted with the owner of the pony keg.” Mr. Farr was acquainted with Mr. Tuccinardi, a sometime client, and knew that Mr. Tuccinardi was a “deadbeat,” not a man of property.
Mr. Farr conceded, on cross-examination, that he had no knowledge of Tuccinardi *1269having any proprietary interest in the pony keg. All Mr. Farr knew was what he had been told by a mutual acquaintance; namely, that Mr. Tuccinardi was working and living at the pony keg, “and that he was making enough money that he ought to be able to pay me off within a reasonable time.” Mr. Tuccinardi testified, without contradiction, that in fact he had no ownership interest in the Forest Pony Keg and was not the owner of the fifty dollars taken from the cash register. There is not a scintilla of evidence to suggest that the petitioners thought otherwise, or to indicate that they believed the store’s owner had authorized Mr. Tuccinardi to dip into the till for his own purposes.
Although Mr. Tuccinardi claimed that Mr. Farr had been told to come in for his money on Monday, July 4, it would have been reasonable for the state trial judge to accept Mr. Farr’s testimony that Tuccinardi had told him to come in on Sunday, July 3. When Mr. Farr did so — accompanied, this time, by two other men — Mr. Tuccinardi tried to pretend that the Fourth was the appointed day. In fact, as Mr. Farr may be presumed to have divined, Tuccinardi had no intention of paying the debt at all. Under the circumstances, it would hardly have been surprising for Mr. Farr to lose his temper — and that seems to be precisely what happened. “I got very angry with him” when Tuccinardi said he did not have the money, Mr. Farr testified, and “there was a lot of name-calling.” The record indicates that Petitioner Tipton, one of the men Mr. Farr had brought with him,2 “got very heated,” grabbed Mr. Tuccinardi by the chin or around the neck, and threatened both to tear up the store and to take Mr. Tuccinardi out in the parking lot and “whoop” him. After Petitioner Tipton’s hand had been “slapped away” by the third man in the trio, as Mr. Farr testified, Tuccinardi said “Well, I’ll pay you fifty dollars”; he then turned to the cash register, took out the money, and gave it to Mr. Farr. If there is no reason to suppose that Mr. Farr intended to take the store owner’s money before it was offered to him, neither is there any reason to suppose he intended to reject the offer when he accepted it.
Mr. Tuccinardi said he did not need a receipt, but Mr. Farr, as he testified, “wanted a written acknowledgment of how much [Tuccinardi] still owed me.” Mr. Farr got a piece of paper and wrote the date on it, followed by the words “Received of Ralph Tuccinardi $50. Balance due: $150.” Mr. Farr then signed his name and insisted that Mr. Tuccinardi do likewise. There is no dispute about the fact that Mr. Tuccinardi did sign the paper — “under duress,” as he claimed — and there is no dispute that Mr. Farr took this acknowledgment of indebtedness away with him. He did not offer to give Mr. Tuccinardi a copy, nor did Tuccinardi request one.
Mr. Tuccinardi had a fellow employee call the police when the men left the store, and two police officers responded promptly. Tuccinardi told the officers where Mr. Farr lived. The officers went to Mr. Farr’s house and found him and Mr. Tipton there. A computer check disclosed “some capiases” on Petitioner Tipton; he was arrested and taken to the police station. Asked at this time “Why did you grab Mr. Tuccinardi around the neck?” Mr. Tipton replied, according to the officer, “I was just trying to help out a friend.”
After declining to say anything further without his attorney being present, Mr. Tipton telephoned Mr. Farr and asked him to come to the station. A police officer testified that he then got on the line and told Mr. Farr “We want to talk to you also in reference to this incident.” Mr. Farr went to the police station, was advised of his rights, and in the course of the ensuing conversation told the police that Mr. Tipton had “grabbed” Mr. Tuccinardi. “[T]his,” Mr. Farr was quoted as saying, “is the only way I can collect from a deadbeat.” When asked “Couldn’t you go to civil court?” Mr. Farr replied, according to the police officer, “sometimes that’s too slow ... I don’t have the time.”
Having reviewed the record of the bench trial at which the petitioners were convict*1270ed, Judge Spiegel, the United States District Judge who denied the petitions for habeas corpus, concluded that “a rational trier of fact could have found the element of intent present in this case” and could rationally have found the petitioners “either guilty or not guilty.” Judge Spiegel, in my view, was right.
It is true that the crime — if it was a crime — was not a particularly heinous one, and the consequences of the conviction were severe; Mr. Tipton has spent a substantial period of time in prison, and although Mr. Farr has not suffered that indignity, the felony conviction led to the loss of his license to practice law. Judges can readily sympathize with someone like Mr. Farr, a certified member of “the company of educated men and women,” and the temptation to be magnanimous here is hard to resist. As Judge Spiegel’s decision correctly intimates, however, our role is a very limited one — and regardless of how we might have preferred to see the case decided at the criminal trial level, our sympathies ought to be immaterial if the trial record contains evidence on which a rational fact-finder could have concluded that the petitioners were guilty. We are not a court of first instance, and we are not even an Ohio court of error; our sole function is to determine whether the robbery convictions violated the Due Process Clause of the United States Constitution. I can discern no such constitutional violation.
If Mr. Tuccinardi had been a teller in a bank or a cashier in a supermarket, and if he had been confronted at his place of employment by someone threatening to “tear up” the place if he did not immediately make payment on a personal debt, surely it would have been no defense to a charge of robbery that the debt collector did not care whether the debtor paid with his own money or his employer’s. That being so, I am not prepared to say that the debt collector has a constitutionally mandated defense if the debtor happens to occupy living quarters somewhere on the premises where he works. If Mr. Tuccinardi had been a live-in domestic servant — a handyman or gardner occupying quarters at his employer’s home, for example — I do not see why, as a matter of law, the accident of his residence would have justified a taking of the employer’s property. The facts of this case (which none of us can interpret with the authority of a trial judge who actually heard the testimony, of course) do not strike me as sufficiently different from those hypothesized to justify the conclusion that the State of Ohio violated the Federal Constitution in convicting Messrs. Farr and Tipton of robbery.3 I would have affirmed the denial of the writs.
. About all that was really intermingled, as far as the record discloses, was Mr. Tuccinardi’s habitat and his workplace. Mr. Tuccinardi testified that he occupied a basement apartment in the beverage store, or "pony keg," where he was employed, but the reader ought not infer that Mr. Tuccinardi and his employer were Siamese twins, or even abnormally intimate friends.
. Mr. Farr’s girlfriend, who remained outside in the car, testified she "thought that [the men who went in with Mr. Farr] were going in to buy beer," but it turned out they bought nothing: what their intention may actually have been is anyone’s guess.
. I attach no significance to the fact that the complaints by which the criminal proceedings were initiated were signed by Mr. Tuccinardi, the man on the scene, rather than by his employer, of whose whereabouts we know nothing. It was Mr. Tuccinardi who sent for the police, and it was the police, according to their testimony at the probable cause hearing that resulted in Mr. Farr's being bound over for the grand jury, who took Mr. Tuccinardi to the police station to sign the complaints. There was no reason for Mr. O'Neil, the owner of the pony keg, to sign a complaint after Mr. Tuccinardi had already done so, and it is not inconceivable that Mr. O’Neil (who was said to have owed Mr. Tuccinardi an indeterminate amount for ten days of work performed over the preceeding two or three weeks) could recoup his loss in any event by deducting fifty dollars from Mr. Tuccinardi’s pay. No such recoupment could turn a robbery into a loan after the fact, however.