Penal Code section 211 defines robbery as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” This code section was enacted in 1872 and has remained unchanged since that date.
It is significant that the section requires the taking be from the possession of another, and makes no reference whatever to ownership of the property.
The question here, then, is whether the defendant may assert ipse dixit his belief that he was entitled to an unpaid debt taken from another by force or fear as a defense to a charge of robbery, and by extrapolation as a defense to a charge of murder committed in the course of a robbery. While there is some authority suggesting this query be answered in the affirmative (People v. Devine (1892) 95 Cal. 227 [30 P. 378] ; People v. Vice (1863) 21 Cal. 344; People v. Stone (1860) 16 Cal. 369),1 there has been no explicit holding of this court on the issue.
*577Thus, the question is ultimately one of basic public policy, which unequivocally dictates that the proper forum for resolving debt disputes is a court of law, pursuant to legal process —not the street, at the business end of a lethal weapon. Had this defendant been entrusted with the contents of the deceased ’s wallet, and had he appropriated them to his own use, believing he was entitled to keep the funds in payment of wages or a debt, that belief would have furnished him no defense to a charge of embezzlement (Pen. Code, § 511; People v. Proctor (1959) 169 Cal.App.2d 269, 277 [337 P.2d 93]). By parity of rationale, the claim of offset denied to the trusted employee who dips into the company eashbox should be denied to one who, like this defendant, enforces his demands at gunpoint. To hold otherwise would be to constitute him judge and jury in his own cause.
It is significant that the basic cases permitting forcible recaption of property one believes his own were decided before the turn of the century. Stone, decided in 1860, involved larceny of a wagon and team; Vice, 1863, involved a faulty indictment; Devine, 1892, involved larceny of property actually in the defendant’s possession, and in that context the court said one cannot intend to steal property which he believes to be his own.
In a bucolic western scene or in the woolly atmosphere of the frontier in the nineteenth century, the six-shooter may have been an acceptable device for do-it-yourself debt collection. If the law permitted a might-makes-right doctrine in that milieu, it is of dubious adaptability to urban society in this final third of the twentieth century.
I would rely upon the specific provisions of Penal Code section 211, which raise no issue of ownership of property forcibly taken, but only its possession. Here, possession of the money was in the deceased, and when it was taken from him by means of force, the crime of robbery was committed.
However, even under the opinion of the majority that the defense theory was legally tenable and should have been submitted to the jury, I do not believe the error, if any, was of *578sufficient gravity to require a reversal of the murder count. (Cal. Const., art. VI, § 13 ; People v. Watson (1956) 46 Cal.2d 818, 836 [211 P.2d 243].)* 2
I would affirm the judgment.
Me Comb, J., concurred.
Appellant’s petition for a rehearing was denied February 8, 1967. McComb, J., was of the opinion that the petition should be granted.
People v. Rosen (1938) 11 Cal.2d 147 [78 P.2d 727, 116 A.L.R. 991], involved a robbery after a dispute over the fruits of a gambling episode. While the court referred to ownership of the property, it based its con*577elusion on the weight of authority which, it said (at p. 150), “supports the conclusion that the intent to steal is lacking in such a ease, for the law recognizes no title or right to possession in the winner . . . the winner gains no title to the property at stake nor any right to possession thereof. . . .” (Italics added.) People v. Sheasbey (1927) 82 Cal.App. 459 [255 P. 836], involved recaption of property sold on installment payments, and the court spoke (at p. 463) of “ownership or at least the right of possession. ’ ’
The defendant’s testimony was riddled with internal inconsistencies and incongruities. It was inconsistent with the several conflicting accounts he gave to the police after being advised of his constitutional rights. It was inconsistent with other salient evidence established apart from his testimony and his extrajudicial statements: the curious fact that the gun he used and the car in which he rode, purportedly to collect a debt, were both stolen; the sinister fact that before he arrived at the house there was a telephone call in an obvious effort to determine whether anyone was in the Anderson home and the caller hung up without identifying himself when Locklear answered the call; the chilling fact that the defendant’s car moved slowly down the street "stopping and cheeking ’ ’ while Locklear hid in the bushes after his flight from the house.