dissenting.
Robert Montsdeoca was convicted, of robbing W. H. Lamacks of $60.00 “by force, violence and assault and putting in fear,” Montsdeoca not being then and there armed with a dangerous weapon.”
*91Tracy was indicted and convicted as being “present, aiding, inciting, assisting and abetting tbe said Robert Montsdeoca. ’ ’
It appears from the testimony that a man named Lemsecks, (possibly the same man who is named in the indictment “Lamacks”) was driving through the country in a Ford car. He had a bottle with some “shine” in it, and had drunk about half of it. Sometime in the afternoon he drove his car a short way off the main road, stopped it and fell asleep. While asleep, the defendants and one Gabe White drove up in a car and stopped. Montsdeoca and-Tracy got out, Montsdeoca saying, he “would go over and see what was the matter with that man and have some fun, or something like that.” They took hold of Lemsecks by the shoulder or arm and woke him up.
He testified that when they wakened him, Montsdeoca “commanded” a little bit of shine that he had in the car.. Montsdeoca then said “he was an officer, and if he would give him $100.00 he would turn him loose. ’ ’ Lemsecks replied that he did not have $100.00, but he would give him a check, which he declined to accept. Lemsecks then took $60.00 in U. S. Currency from his pocket and handed it to Montsdeoca.
In his direct examination Lemsecks stated that he did not believe Montsdeoca was an officer, and was, therefore, not influenced by the threat of arrest.
At the preliminary hearing that was held a few days after the occurrence, he testified that he thought Montsdeoca was an officer, and his threats to arrest him influenced him in giving up his money. This was brought out on cross-examination as appears from the following excerpts: “Did or did you not at that time and place in *92answer to this question, give the following answer? How did you come to give them that money Mr. Lemsecks? and you answered A. He claimed he had me.under arrest and would turn me loose if I would give him the money. Were you influenced by that to think he had the right to arrest you? A. Yes, I did not know who he was. Q. Did you give those answers? A. Yes. A. Did you further answer Q. What did you think they were arresting you for? Thai shine in your car? A. Yes. A. Yes.
“Q. Did you say you would not like him to take you before the judge or words to that effect? A. I don’t remember exactly whether I did’ or not. A. Your memory was fresher then than now? A. Yes. Q. Would you say you did not answer the question this way; Q. Who woke you up? A. Montsdeoca. Q. What did he do to you? A. He said he was an officer and had me under arrest and would take me before the Judge and I said I would not like to do that and he said if I would give him $100.00 he would turn me loose. Q. Is that right? A. Yes, that is it. Q: How did you say he woke you up ? A. Caught me by the shoulders and shook me. Q. Both shoulders? A. Yes. Did you in answer to this question at that preliminary hearing give this answer, ‘What did he say to you to wake you up? A. He came up and shook my arm. Q. Did you so answer at that time ? A. He took me by the shoulders and arms this way (Indicating).”
‘‘ ‘What was it that caused you to turn over to them your money and your watermelons? Answer: He claimed to have me'under arrest. Did you answer that way? A. Yes. Q. And then ‘And it was because of your fear of having your liberty restrained that caused you to part with your property,’ and did you answer that question .‘Yes sir?’ A. Yes.”
*93The Justice of the Peace before whom the preliminary examination was held, testified as follows: “Q. I will ask you this question: Was the following question asked at that preliminary hearing, to which Mr. Lemseeks answered as follows: ‘How did you come to give them that money Mr. Lemseeks?’ And his answer was ‘He claimed that he had me under arrest and would turn me loose if I gave him the money,’ Q. Is that the answer, that you understood him to give in answer to that question ? A. It is. ’ ’
“Q. Then in answer to this question, will you say that the following is the answer he gave “Were you influenced by that statement that he had a right to arrest you,’ and his answer was ‘Yes I did not know who he was? A. Yes lie made that answer to that question.”
“Q. And was not this question asked, to which he answered as follows: Q. ‘What did he do to you,’ He said he was an officer and said he had me under arrest and said he was going to take me before the Judge and I said I yould not like for him to do that and he said if I would give him $100.00 he would turn me loose? A. Yes I remember positive he made that statement. Q. Was not this question also asked ‘What did he do to you to wake you up’ A. ‘He came up and shook my Arm?’ A. Yes I think he did. Q. Your notes show that statement was made? A. Yes. Q. State whether or not the following question was given at that- time and whether or not. the following is, not his answer to .same. ‘Q. Did he put the switch key in.before you give up the $60.00?’ and his answer, ‘He put it in about a minute before I handed over the sixty dollars?’ A. Yes.”
Lamacks testified that the $60.00'was in his pockets, and he “took it out and handed it to them.”
*94In answer to this leading question by the State Attorney, ‘ ‘ State to the jury whether or not you were in bodily fear at that time,” he answered: “Yes, I was.” And on cross examination he said: “I certainly was in fear;” and on being asked if “that was fear of being arrested for having moonshine in your possession,” he replied, “And also I did not know what they would do to me. ’ ’
The picture that the testimony presents, shows Lamacks asleep in his car about one hundred yards off the brick road. Three men drive up and see him, and one proposes to “go over and see what is the matter with that man, and have some fun.” Two of them get out and go to the ear, and one takes him by the arm or shoulder and shakes him to awaken him; they discover he has “shine” in his car, and they represent themselves as officers of the law, and tell him they have him under arrest, but they will turn him loose if he gives them $100.00. He offers to give them a check, which they decline; he then takes $60.00 out of his pocket and hands it to one of them.
■Lemseeks testified that Tracey taking the switch key out of the car, but he put it back. He testified on the preliminary hearing that Tracey placed it back before he gave them the money, but on the trial he says it was afterwards.
His testimony, however, on another point, supports the statement that Tracey put the key back before the money was handed to Montsdeoca. He testified that ‘after he told Tracey who he was, he tried to get Montsdeoca to let him go.’ “He said it two or three times.” The prosecutor seemed desirous of exonerating Tracey, and in. several places in his testimony he repeats that Tracey tried to get Montsdeoca to let him go. Just how that could be done, if Tracey still had the key, he does not attempt to explain, *95and the conclusion is that the key had been put back before the money was handed over. Montsdeoca testified, “Q. You would not say Tracey said let him go, before you parted with your property would you? A. Yes, he said let him go. Q. Before you turned over anything? A. Yes.”
Taking this switch key from the.car, the majority of the court holds to be a “violent and forceful taking possession of the automobile.” Even if at best, the taking of the switch key, was a constructive “taking possession of the car,” the only force used, was such as would be necessary to remove this little key from the lock. Hardly ‘ ‘ violent. ’ ’
The question involved is whether Lamaeks took the money out of his pocket and gave it to Montsdeoca through fear of being arrésted for having moonshine in his possession, or whether he did it through fear of personal injury or bodily harm, induced by such words, gestures or manner of the defendant or either of them, as in common experience would be “likely to create an apprehension of danger and induce one to part with his-property for the safety of his person.” Simmons v. State, 41 Fla. 316, 25 South Rep. 881.
If the former, it would not be robbery under the common law, or under the law laid down by this court. /
In the Simmons case, supra, this court said: ‘ ‘ The statute does not define what circumstances shall constitute ‘putting in fear ’, but this expression is evidently used in a technical sense, and we must ascertain its meaning by reference to the common law definition of robbery from whence it is derived. Turner vs. State, 1 Ohio St. 432; Clary v. State, 33 Ark. 561. At common law robbery was ‘the felonious and forcible taking of property of another from his person or in his presence, against his will, by violence or by putting in fear.’ I Wharton’s Crim. Law, Sec. 846; 2 Russell on *96Crimes (9th ed.) *98. The putting in fear, or intimidation, was considered the equivalent of constructive violence, and the demands of the law were met by proof of fear excited with respect to apprehend injuries to the person, property or character. 2 Russell on Crimes (9th ed.) 113. Though there need be no great degree of terror or affright for personal safety excited in the person robbed, the fact must be attended with such circumstances of terror or intimidation, such threatening by word, gesture or manner, as in common experience are likely to create an apprehension of danger and induce one to part with his property for the safety of his person. 2 Russell on Crimes, *113; I Hawkins Pleas of the Crown (8th ed.) 128. The terror which would lead the person robbed to apprehend an injury to his character was never deemed sufficient to support an indictment for robbery except in the particular instance of its being excited by means of insinuations against, or threats to destroy, the character by accusations of sodomitical practices. 2 Russell on Crimes (9th ed.) *118; 1 Wharton’s Crim. Law, Sec. 852; 2 Bishop’s New Crim. Law, Sec. 1173.”
There were no threats to do personal injury or bodily harm to Lemsecks by either of these parties. He says he was in “bodily fear,” but there are no’ circumstances shown; no “word, gesture or manner” by either of these parties, “likely to create an apprehension of danger and induce one to part with his property for the safety of his person.”
He attempts to justify what he calls his “bodily fear,” by adding ‘ ‘ and I did not know what they would do to me. ’ ’
The fear contemplated by the statute and described by Mr. Justice CARTER, in Simmons v. State, supra, must arise from words or actions on the part of the supposed *97robbers, and not his lack of knowledge of “what might be done to him.
If not knowing what a person might do, were sufficient to arouse the fear that is an essential element in robbery, any beggar who gets a dole from his benefactor, could be convicted of this crime, because the person who gave him the money could truthfully swear that he did not know what the beggar “might do to him,” if he refused.
In the case under consideration, there were no menaces, no threatening words or acts, nor were there such circumstances of terror or intimidation, as would induce a person to part with his property for the safety of his person, other than the fear of arrest for violating the prohibition laws.
Obtaining money from another under threats to circulate reports against the character of the victim is not robbery, unless the threats relate to sodomitieal practices.
In making this exception, the law recognizes that certain things may be so atrocious as to make them out of the general rule.
The courts have not yet said that personating a prohibition officer- for the purpose of extorting money from another, will take the act out of the general class of threats of arrest, but the evil is a growing one, and it may increase to a degree that will require them to differentiate'this class of threats from ordinary threats of arrest, and to put the taking of money or other property from a person under threat of arrest for violation of prohibition laws, within the purview of the statute.
There being no testimony competent to establish that the money was obtained from Lemsecks by threatening acts, words or gestures, such as would have caused him to appre.*98bend personal injury at the bands of the defendant, I think the judgment should be reversed.
Taylor, J., concurs.