dissenting:
As I see it, the controlling question on this appeal is whether the judgment order under which Pettus is being restrained of his liberty is invalid, null and void. The indictment is sufficient in form and substance to charge common law robbery. However, the evidence does not justify a conviction for robbery, and the judgment order fails to show that Pettus was found guilty of that crime. The issue is raised by petitioner’s assignment of error that “there could be no conviction for forceful or strongarmed (sic) robbery, since the taking of the shotgun occurred prior to the assault upon the guard.”
The evidence is not in conflict. It shows that Pettus was a convict “trusty” working with a detail of the State Convict Road Force on November 15, 1957. The detail was in charge of W. F. Harris, an armed guard. Questioned by the Attorney for the Commonwealth, Harris testified as follows:
“I was sitting there — we were eating lunch — I had the shotgun laying across my lap, and I was eating. He (Pettus) was sitting over there to the side of me. The trusty (Pettus) was sitting to the side of me, the gang was then down in front of me, and of course, I was watching them. The gun went out of my lap and I looked back and he had it. He jumped back, threw the gun on me and told me not to move. I jumped up and grabbed the gun and before I could get it away from him — Scruggs (another convict) took the service gun and went to the truck and forced the truck driver and foreman out, and Frank Dale went to the other side of the truck, got in, and all five of them left.”
*912The above testimony clearly shows that the taking of the shotgun from Harris was accomplished before any violence toward or intimidation of Harris occurred. All that it does show is that a shotgun was stolen, and that subsequently under the presentation of the firearm and a threat, the prisoner escaped, — a larceny followed by an assault. The guard could not have been put in bodily fear prior to the theft of the shotgun, and he does not claim that he was, because the gun was taken by stealth.
In a long line of cases we have repeatedly held that to constitute the offense of common law robbery, there must be a “takmg with intent to steal, of the personal property of another from his person or in his presence, against his will, by violence or intimidation.” (Emphasis added.) Houston v. Commonwealth, (1890) 87 Va. 257, 264, 12 S. E. 385, 387; Butts v. Commonwealth, (1926) 145 Va. 800, 811, 133 S. E. 764; Maxwell v. Commonwealth, (1936) 165 Va. 860, 864, 183 S. E. 452, 454; Falden v. Commonwealth, (1937) 167 Va. 549, 554, 189 S. E. 329; Fleming v. Commonwealth, (1938) 170 Va. 636, 639, 196 S. E. 696; Jones v. Commonwealth, (1939) 172 Va. 615, 618, 1 S. E. 2d 300; Mason v. Commonwealth, (1958) 200 Va. 253, 254, 105 S. E. 2d 149; 46 Am. Jur., Robbery, § 19, page 148. See Annotations to Virginia Code, 1950, § 18-163; 1960 Repl. Vol. § 18.1-91 and 1966 Cum. Supp. § 18.1-91.
Also see Pierce v. Commonwealth, 205 Va. 528, 532, 138 S. E. 2d 28.
In Maxwell v. Commonwealth, supra, 165 Va., at page 864, and Fleming v. Commonwealth, supra, 170 Va., at page 639, we said:
“Therefore, to constitute the crime of robbery in Virginia, all of the elements essential at common law must exist.”
In Mason v. Commonwealth, supra, 200 Va., the defendant, Mason, was charged with the robbery of one, Grimes, “by violence and intimidation, and by the threat and presentation of firearm.” The evidence showed that Mason broke and entered a storeroom of Grimes and picked up a portable television set, which he handed to a confederate. Grimes appeared on the scene and hit Mason with a board. Mason then threw a radio at Grimes, fired four times at the latter with a pistol, and then fled. Upon that evidence, he was found guilty of common law robbery. On appeal, the late Mr. Justice Miller said this in 200 Va., supra, at pages 255 and 256:
“The precise question presented is whether the violence toward or intimidation of Grimes by throwing the radio at him or by the threat and presentation of firearms preceded or was contemporaneous *913with the taking, or whether the violence toward or intimidation of Grimes was subsequent to the taking. If the violence or intimidation preceded or was concomitant with the taking, the offense of robbery is established; if the taking was accomplished before the violence toward or intimidation of Grimes, then it was not robbery.
“The following general statement found in 46 Am. Jur., Robbery, § 19, p. 148, is pertinent to the question before us:
“ ‘The violence or intimidation must precede or be concomitant or contemporaneous with the taking. Hence, although the cases are not without conflict, the general rule does not permit a charge of robbery to be sustained merely by a showing of retention of property, or an attempt to escape, by force or putting in fear. The above doctrine has found frequent application where force or intimidation has been exercised after the property came into the defendant’s hands by stealth * # ”
In the opinion of the majority, it is said that: “In some manner not clearly shown, Pettus got possession of the gun from the guard, * * *.” According to the evidence of the guard, the sole witness to the occurrence, the shotgun was taken without violence or intimidation, when he was looking the other way. The Commonwealth suggests in its brief that the shotgun was obtained by trickery. In the argument, it is suggested that the attention of the guard was directed to a rabbit in the near vicinity, and when the guard turned to look at the rabbit, Pettus took the shotgun. Neither in the evidence, nor in the suggestions, does it appear that violence, intimidation or putting the guard in bodily fear, was present before the firearm was stolen.
In Johnson v. Commonwealth, (1873) 24 Gratt. (65 Va.) 555, 561, it was held that where there was a variance between the allegata and the probata in a judgment convicting the accused of grand larceny, the judgment was erroneous; and, therefore, null and void.
Here, it is contended that the error was harmless because Pettus pleaded guilty to the indictment for robbery. Pettus, 34 years old and uneducated, knew no more as to what constituted the elements of common law robbery than a billy goat or the rabbit which was said to have been his innocent accomplice.
The record indicates that there was considerable confusion in the minds of the court officials as to the nature of the offense charged in the indictment. On the back of that instrument there is the endorsement “Larceny and Assault,” and the caption of the judgment order reads “Felony — Larceny and Assault.” The judgment order recites *914that the court found Pettus “guilty of a felony (larceny and assault) as charged in the indictment.” The word “robbery” is not mentioned in the indictment nor in the judgment order. Cf. Taylor v. Commonwealth, 207 Va. 326, 332, 150 S. E. 2d 135. It is a maxim of construction that the mention of one thing implies the exclusion of another. The above record may account for the contention of counsel for Pettus that the indictment “alleged two felonies in one count.” However that may be, “larceny and assault” is unknown as an offense in Virginia, either as a misdemeanor or as a felony.
I hesitate to refer to the contention of Pettus that he was denied the aid of effective counsel at his trial upon the indictment for robbery. The facts that no exception was taken to the judgment of conviction, no appeal from the judgment, or writ of error was applied for by his court-appointed counsel, Overstreet, and that Pettus was not informed of his right to petition for an appeal or writ of error, speak more eloquently than words as to lack of effective legal assistance.
Since we are told in the brief of the Attorney General that the two-year sentence imposed on Pettus for escape was completed on May 2, 1961 and that the eight-year sentence imposed on him for robbery, which he is now serving, will expire on March 13, 1967, a decision of this case in his favor will not likely have any great effect so far as he is concerned. However, my purpose is to show my adherence to the definition of common law robbery long accepted by this Court.