dissenting.
Appellant Coleman left the supermarket after pocketing some film and not paying for it. As he exited, a clerk who had seen the pocketing, pointed Coleman out to Smith, the store manager. Smith had not seen the pocketing. Coleman had left and was standing in the middle of the sidewalk outside the store when Smith, who had followed him, emerged through the doors and said, “Excuse me, sir, is there anything you forgot to pay for?” Appellant turned to confront Smith with weapon in hand, pointed it at Smith, and said, “Do you want some of this?” Smith raised his hands and said, “No problem,” and backed away, reentering the store. Smith watched from inside the store as appellant walked into the parking lot and left in a car. Smith testified that he got no closer than two feet when he approached appellant. This is, I believe, a fair synopsis of the testimony which went most strongly against appellant.
In Shinn v. State (1878), 64 Ind. 13 (distinguished in Eckelberry v. State (1986), Ind., 497 N.E.2d 233), two con men working the sidewalk, engaged a man in conversation, and persuaded him to show his money. One of them was Shinn. Shinn’s accomplice snatched the money from the hapless victim’s hand and gave it to Shinn, who took off running with it. The victim sought to pursue Shinn, but was knocked down by the accomplice. Getting loose, the victim caught Shinn; Shinn, the victim, and the accomplice engaged in a tussle. This Court said that there had been no taking of the money by force or fear, and perforce no robbery.
In much the same manner here, Smith, the store manager, pursued and caught up to appellant outside the store on the sidewalk. The knife threat by appellant which immediately followed, like the immediate blow to the victim by the accomplice in Shinn, was preceded by the taking of the film, and perforce there was no taking from Smith by force or fear as charged and no robbery. This ease is not distinguishable from Shinn, and the same result should obtain here.
SELBY, J., concurs.