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Smith v. State

The trial court should have charged on theft by taking as the lesser included offense of armed robbery because the defendant's testimony that he merely took money from the victim's jewelry box on his way out of her house conflicted with her claim that he threatened to kill her if she did not give him money.

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Clarence E. Smith was charged with armed robbery, terroristic threats and kidnaping. He was acquitted of armed robbery, kidnaping, and terroristic threats, but convicted of the lesser offense of robbery, and sentenced to serve 12 years.

On the night of May 2, 1996, Smith and Norris Galbert drank a few beers together at Galbert’s home. Smith was a neighbor and had been to Galbert’s house at least once before. Smith testified that they ran out of beer and that Galbert gave him $40 to go to the store and buy more. Smith also testified he took $10 from Galbert’s jewelry box to buy himself a different type of beer. Galbert testified to a different version of events. Galbert testified that she declined Smith’s request to buy more beer, and he asked to use her restroom. Galbert testified that Smith returned from the restroom with his hand in his pocket, told her he had a gun, and forced her into her bedroom where he took approximately $100 from her wallet and a ring and watch off her dresser. In addition, Galbert testified that Smith threatened to kill her if she did not give him $500.

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