Durham v. Commonwealth, 198 S.E.2d 603 (Va. 1973). · Go Syfert
Durham v. Commonwealth, 198 S.E.2d 603 (Va. 1973). Cases Citing This Book View Copy Cite
“in 8 usca4 appeal: 20-7131 doc: 55 filed: 03/27/2023 pg: 9 of 13 virginia, . . . there is no statutory definition of robbery.”
181 citation events (89 in the last 25 years) across 7 distinct courts.
Strongest positive: United States v. Joseph Williams (ca4, 2023-03-27)
Treatment trajectory · 1973 → 2026 · click a year to view as-of
1973 1999 2026
Top citers, strongest first. 50 distinct citers.
discussed Cited as authority (verbatim quote) United States v. Joseph Williams
4th Cir. · 2023 · signal: see also · quote attribution · 1 verbatim quote · confidence high
in 8 usca4 appeal: 20-7131 doc: 55 filed: 03/27/2023 pg: 9 of 13 virginia, . . . there is no statutory definition of robbery.
discussed Cited as authority (rule) Destinee Shanae Newman v. Commonwealth of Virginia
Va. Ct. App. · 2025 · confidence medium
It is defined as ‘the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation.’” Ali v. Commonwealth, 280 Va. 665, 668 (2010) (quoting Durham v. Commonwealth, 214 Va. 166, 168 (1973)).
discussed Cited as authority (rule) United States v. Jarohn Parham
4th Cir. · 2025 · confidence medium
The Supreme Court of Virginia has thus defined Virginia robbery as “the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation.” Williams, 64 F.4th at 153–54 (citing Durham v. Commonwealth, 198 S.E.2d 603, 605 (Va. 1973)).
discussed Cited as authority (rule) Willie Jackson Farley, III v. Commonwealth of Virginia
Va. Ct. App. · 2024 · confidence medium
Robbery Robbery “is defined as ‘the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation.’” Ali v. Commonwealth, 280 Va. 665, 668 (2010) (quoting Durham v. Commonwealth, 214 Va. 166, 168 (1973)).
cited Cited as authority (rule) Maurice Wendell Thrower, Sr. v. Commonwealth of Virginia
Va. Ct. App. · 2024 · confidence medium
It may occur momentarily.” Durham v. Commonwealth, 214 Va. 166, 169 (1973)).
discussed Cited as authority (rule) Xavier Antcnio Gilbert v. Commonwealth of Virginia
Va. Ct. App. · 2023 · confidence medium
Robbery “Robbery at common law is defined as ‘the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation.’” Commonwealth v. Anderson, 278 Va. 419, 424 (2009) (quoting Durham v. Commonwealth, 214 Va. 166, 168 (1973)).
discussed Cited as authority (rule) Edward William Coles, Jr. v. Commonwealth of Virginia
Va. Ct. App. · 2022 · confidence medium
Intent “may occur momentarily” and “does not have to exist for any particular length of time.” Commonwealth v. Jones, 267 Va. 284, 289 (2004) (quoting Durham v. Commonwealth, 214 Va. 166, 169 (1973)).
cited Cited as authority (rule) United States v. Terry White
4th Cir. · 2022 · confidence medium
Accordingly, Section 18.2-58 is not dispositive of the question presented, because “we look to the common law for [the crime’s] definition.” Durham v. Commonwealth, 198 S.E.2d 603, 605 (Va. 1973).
cited Cited as authority (rule) White v. United States
Va. · 2021 · confidence medium
Durham v. Commonwealth, 214 Va. 166, 168 (1973).
cited Cited as authority (rule) United States v. Terry White
4th Cir. · 2021 · confidence medium
Accordingly, Section 18.2-58 is not dispositive of the question presented, because “we look to the common law for [the crime’s] definition.” Durham v. Commonwealth, 198 S.E.2d 603, 605 (Va. 1973).
discussed Cited as authority (rule) Dana Miguel Keith v. Commonwealth of Virginia
Va. Ct. App. · 2020 · confidence medium
Robbery “is defined as ‘the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation.’” Ali v. Commonwealth, 280 Va. 665, 668 (2010) (quoting Durham v. Commonwealth, 214 Va. 166, 168 (1973)).
discussed Cited as authority (rule) Benjamin David Chastang v. Commonwealth of Virginia
Va. Ct. App. · 2020 · confidence medium
Accordingly, our analysis focuses on those restrictions. - 11 - after the thief had seized the property in question was part of a robbery); Durham v. Commonwealth, 214 Va. 166, 169 (1973) (holding that when an “owner of personal property, or another having custody or constructive possession of the same, interposes himself to prevent a thief from taking the property, and the force and violence used to overcome the opposition to the taking is concurrent or concomitant with the taking, the thief’s action constitutes robbery”).
discussed Cited as authority (rule) Taiveon Antionio Tucker v. Commonwealth of Virginia
Va. Ct. App. · 2020 · confidence medium
Robbery “is defined as ‘the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation.’” Ali v. Commonwealth, 280 Va. 665, 668 (2010) (quoting Durham v. Commonwealth, 214 Va. 166, 168 (1973)). -6- Initially, appellant argues that there was no evidence, direct or circumstantial, of a “taking.” He contends that his interaction with Mayo was a consensual transaction for the exchange of drugs.
discussed Cited as authority (rule) Jahsen Heard v. Commonwealth of Virginia
Va. Ct. App. · 2018 · confidence medium
It is defined as ‘the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by -7- violence or intimidation.’” Ali v. Commonwealth, 280 Va. 665, 668 , 701 S.E.2d 64, 66 (2010) (quoting Durham v. Commonwealth, 214 Va. 166, 168 , 198 S.E.2d 603, 605-06 (1973)).
discussed Cited as authority (rule) John Edward Hardin v. Commonwealth of Virginia
Va. Ct. App. · 2017 · confidence medium
The “fact[]finder may ‘believe [a defendant’s statements] in whole or in part, as reason may decide.’” Vasquez v. Commonwealth, 291 Va. 232, 251 , 781 S.E.2d 920, 931 (2016) (quoting Durham v. Commonwealth, 214 Va. 166, 169 , 198 S.E.2d 603, 606 (1973)).
discussed Cited as authority (rule) Marquez Rah-Shaun Perkins v. Commonwealth of Virginia
Va. Ct. App. · 2017 · confidence medium
At common law, robbery “is defined as ‘the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation.’” Ali v. Commonwealth, 280 Va. 665, 668 , 701 S.E.2d 64, 66 (2010) (quoting Durham v. Commonwealth, 214 Va. 166, 168 , 198 S.E.2d 603, 605 (1973)).
discussed Cited as authority (rule) Victoria Elizabeth Dufresne v. Commonwealth of Virginia
Va. Ct. App. · 2016 · confidence medium
It is defined as “the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation.” Durham v. Commonwealth, 214 Va. 166, 168 , 198 S.E.2d 603, 605-06 (1973) (quoting Jones v. Commonwealth, 172 Va. 615, 618 , 1 S.E.2d 300, 301 (1939)). - 10 - Larceny, a common law crime, is defined as the unlawful taking of another’s property without his permission and with the intent to permanently deprive the owner of that property.
discussed Cited as authority (rule) Victoria Elizabeth Dufresne v. Commonwealth of Virginia
Va. Ct. App. · 2016 · confidence medium
It is defined as “the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation.” Durham v. Commonwealth, 214 Va. 166, 168 , 198 S.E.2d 603, 605-06 (1973) (quoting Jones v. Commonwealth, 172 Va. 615, 618 , 1 S.E.2d 300, 301 (1939)). - 10 - Larceny, a common law crime, is defined as the unlawful taking of another’s property without his permission and with the intent to permanently deprive the owner of that property.
discussed Cited as authority (rule) Victoria Elizabeth Dufresne v. Commonwealth of Virginia
Va. Ct. App. · 2016 · confidence medium
It is defined as “the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation.” Durham v. Commonwealth, 214 Va. 166, 168 , 198 S.E.2d 603, 605-06 (1973) (quoting Jones v. Commonwealth, 172 Va. 615, 618 , 1 S.E.2d 300, 301 (1939)). - 10 - Larceny, a common law crime, is defined as the unlawful taking of another’s property without his permission and with the intent to permanently deprive the owner of that property.
discussed Cited as authority (rule) Terrell Jermaine Whitley v. Commonwealth of Virginia
Va. Ct. App. · 2013 · confidence medium
At common law, robbery “is defined as ‘the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation.’” Ali v. Commonwealth, 280 Va. 665, 668 , 701 S.E.2d 64, 66 (2010) (quoting Durham v. Commonwealth, 214 Va. 166, 168 , 198 S.E.2d 603, 605 (1973)).
examined Cited as authority (rule) Quaiyim Amin El-Shabazz, s/k/a Qaiyim Amin El-Shabazz v. Commonwealth of Virginia (3×) also: Cited "see"
Va. Ct. App. · 2012 · confidence medium
“The degree of asportation necessary to constitute a taking under the common law definition of robbery need only be slight.” Durham v. Commonwealth, 214 Va. 166, 168 , 198 S.E.2d 603, 606 (1973).
discussed Cited as authority (rule) Price v. Commonwealth
Va. Ct. App. · 2012 · confidence medium
The Supreme Court of Virginia rejected this argument, concluding that the phrase “ ‘ “of the personal property of another, from his person or in his presence” has been broadly construed to include the taking of property from the custody ... or ... the constructive possession of ... another.’ ” Id. at 440, 414 S.E.2d at 281 (quoting Durham v. Commonwealth, 214 Va. 166, 168 , 198 S.E.2d 603, 605-06 (1973)).
discussed Cited as authority (rule) Stanley Germiah Oliver v. Commonwealth of Virginia
Va. Ct. App. · 2012 · confidence medium
The Supreme Court of Virginia rejected this argument, concluding that the phrase ““‘of the personal property of another, from his person or in his presence” has been broadly construed to include the taking of property from the custody . . . or . . . the constructive possession of . . . another.’” Id. at 440, 414 S.E.2d at 281 (quoting Durham v. Commonwealth, 214 Va. 166, 168 , 198 S.E.2d 603, 605-06 (1973)).
discussed Cited as authority (rule) Carldine Preston Cheatham v. Commonwealth of Virginia
Va. Ct. App. · 2011 · confidence medium
Robbery is defined as “‘the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation.’” Ali v. Commonwealth, 280 Va. 665, 668 , 701 S.E.2d 64, 66 (2010) (quoting Durham v. Commonwealth, 214 Va. 166, 168 , 198 S.E.2d 603, 605 (1973)).
discussed Cited as authority (rule) Steven Paul Carlstrom v. Commonwealth of Virginia
Va. Ct. App. · 2011 · confidence medium
Intent “‘may occur momentarily,’” and “‘does not have to exist for any particular length of time.’” Commonwealth v. Jones, 267 Va. 284, 289 , 591 S.E.2d 68, 71 (2004) (quoting Durham v. Commonwealth, 214 Va. 166, 169 , 198 S.E.2d 603, 606 (1973)). “‘Intent may, and often must, be inferred from the facts and circumstances of the case, including the actions of the accused and any statements made by him.’” Carter, 280 Va. at 105 , 694 S.E.2d at 594 (quoting Stanley v. Webber, 260 Va. 90, 96 , 531 S.E.2d 311, 315 (2000)).
discussed Cited as authority (rule) Ali v. Com.
Va. · 2010 · confidence medium
It is defined as "the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation." Durham v. Commonwealth, 214 Va. 166, 168 , 198 S.E.2d 603, 605 (1973).
discussed Cited as authority (rule) Smith v. Commonwealth
Va. Ct. App. · 2010 · confidence medium
The trier of fact is not required to accept a party’s evidence in its entirety, Barrett v. Commonwealth, 231 Va. 102, 107 , 341 S.E.2d 190, 193 (1986) (citing Belton v. Commonwealth, 200 Va. 5, 9 , 104 S.E.2d 1, 4 (1958)), but is free to believe and disbelieve in part or in whole the testimony of any witness, Rollston v. Commonwealth, 11 Va.App. 535, 547 , 399 S.E.2d 823, 830 (1991) (citing Durham v. Commonwealth, 214 Va. 166, 169 , 198 S.E.2d 603, 606 (1973); Upshur v. Commonwealth, 170 Va. 649, 655 , 197 S.E. 435, 437 (1938)).
discussed Cited as authority (rule) Shaquilla Shanell Brown v. Commonwealth of Virginia
Va. Ct. App. · 2009 · confidence medium
Similarly, the fact finder is not required to believe all aspects of a defendant’s statement or testimony; the judge or jury may reject that which it finds implausible, but accept other parts which it finds to be believable. -9- Durham v. Commonwealth, 214 Va. 166, 169 , 198 S.E.2d 603, 606 (1973).
discussed Cited as authority (rule) Emonnie O. Crichlow v. Commonwealth of Virginia
Va. Ct. App. · 2009 · confidence medium
Furthermore, “[t]he phrase ‘. . . of the personal property of another, from his person or in his presence . . .’ has been broadly construed to include the taking of property from the custody of, or in the actual or constructive possession of, another.” Johnson, 215 Va. at 496 , 211 S.E.2d at 72 (quoting Durham v. Commonwealth, 214 Va. 166, 168 , 198 S.E.2d 603, 605-06 (1973)).
cited Cited as authority (rule) Williams v. Com.
Va. · 2009 · confidence medium
It may occur momentarily.'" Jones, 267 Va. at 289 , 591 S.E.2d at 71 (quoting Durham v. Commonwealth, 214 Va. 166, 169 , 198 S.E.2d 603, 606 (1973)).
discussed Cited as authority (rule) Com. v. Anderson
Va. · 2009 · confidence medium
Durham v. Commonwealth, 214 Va. 166, 168 , 198 S.E.2d 603, 605-06 (1973) (citations omitted). [When] the owner of personal property, or another having custody or constructive possession of the same, interposes himself to prevent a thief from taking the property, and the force and violence used to overcome the opposition to the taking is concurrent or concomitant with the taking, the thief's action constitutes robbery.
cited Cited as authority (rule) Steven S. Martin v. Commonwealth of Virginia
Va. Ct. App. · 2009 · confidence medium
Durham v. Commonwealth, 214 Va. 166, 169 , 198 S.E.2d 603, 606 (1973).
cited Cited as authority (rule) Christopher Lee Bentley v. Commonwealth
Va. Ct. App. · 2005 · confidence medium
Durham v. Commonwealth, 214 Va. 166, 169 , 198 S.E.2d 603, 606 (1973).
cited Cited as authority (rule) Temeaka M. Harris v. Commonwealth
Va. Ct. App. · 2003 · confidence medium
Durham v. Commonwealth, 214 Va. 166, 169 , 198 S.E.2d 603, 606 (1973).
discussed Cited as authority (rule) Jeffrey Scott Kibler v. Commonwealth
Va. Ct. App. · 2002 · confidence medium
The trial court was entitled to - 4 - disbelieve Kibler's testimony and assume he was lying to cover his guilt. "[T]he fact finder is not required to believe all aspects of a defendant's statement or testimony; the judge or jury may reject that which it finds implausible, but accept other parts which it finds to be believable." Pugliese v. Commonwealth, 16 Va. App. 82, 92 , 428 S.E.2d 16, 24 (1993) (quoting Durham v. Commonwealth, 214 Va. 166, 169 , 198 S.E.2d 603, 606 (1973)).
discussed Cited as authority (rule) Gary Clements Ridley v. Commonwealth
Va. Ct. App. · 2002 · confidence medium
"Inferences may be drawn from proven facts so long as they are reasonable and justified." Durham v. Commonwealth, 214 Va. 166, 169 , 198 S.E.2d 603, 606 (1973) (citing Webb v. Commonwealth, 204 Va. 24, 34 , 129 S.E.2d 22, 29 (1963)).
examined Cited as authority (rule) Jaquane Antre Hines v. Commonwealth of Virginia (3×) also: Cited "see"
Va. Ct. App. · 2002 · confidence medium
Durham v. Commonwealth, 214 Va. 166, 169 , 198 S.E.2d 603, 606 (1973).
cited Cited as authority (rule) Robert Jerome Brown, II v. Commonwealth of Virginia
Va. Ct. App. · 2000 · confidence medium
"The degree of asportation necessary to constitute a taking under the common law definition of robbery need only be slight." Durham v. Commonwealth, 214 Va. 166, 168 , 198 S.E.2d 603, 606 (1973).
discussed Cited as authority (rule) Felicia Gregg O'Brien, a/k/a Felicia K. Gregg v. CW
Va. Ct. App. · 1998 · confidence medium
If from the confession itself, or other evidence, it appears to a rational - 3 - mind that a part is not true, a jury does not have to accept it." Durham v. Commonwealth, 214 Va. 166, 169 , 198 S.E.2d 603, 606 (1973).
cited Cited as authority (rule) Donald D. Lewis, etc. v. Commonwealth
Va. Ct. App. · 1996 · confidence medium
Durham v. Commonwealth, 214 Va. 166, 169 , 198 S.E.2d 603, 606 (1973).
discussed Cited as authority (rule) Leroy McKinley Spencer, Jr. v. Commonwealth
Va. Ct. App. · 1996 · confidence medium
"The degree of asportation necessary to constitute a taking under the common law definition of robbery need be only slight." Turner v. Commonwealth, 221 Va. 513, 528 , 273 S.E.2d 36, 45 (1980), cert. denied, 451 U.S. 1011 (1981) (quoting Durham v. Commonwealth, 214 Va. 166, 168 , 198 S.E.2d 603, 606 (1973)).
discussed Cited as authority (rule) Harris v. Commonwealth (2×)
Va. Ct. App. · 1996 · confidence medium
Darnell v. Commonwealth, 12 Va.App. 948, 957 , 408 S.E.2d 540, 545 (1991) (larceny); Durham v. Commonwealth, 214 Va. 166, 168 , 198 S.E.2d 603, 605 (1973) (robbery).
cited Cited as authority (rule) Todd Emerson Tebault v. Commonwealth
Va. Ct. App. · 1996 · confidence medium
Durham v. Commonwealth, 214 Va. 166, 169 , 198 S.E.2d 603, 606 (1973).
cited Cited as authority (rule) Bobby F. Collins v. Commonwealth
Va. Ct. App. · 1995 · confidence medium
Durham v. Commonwealth, 214 Va. 166, 169 , 198 S.E.2d 603, 606 (1973).
cited Cited as authority (rule) Kenneth E. Viar v. Commonwealth
Va. Ct. App. · 1995 · confidence medium
Durham v. Commonwealth, 214 Va. 166, 169 , 198 S.E.2d 603, 606 (1973).
discussed Cited as authority (rule) Jackson v. Commonwealth
Va. Ct. App. · 1995 · confidence medium
Robbery “is defined as ‘the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation.’ ” Durham v. Commonwealth, 214 Va. 166, 168 , 198 S.E.2d 603, 605 (1973) (citation omitted).
examined Cited as authority (rule) Pugliese v. Commonwealth (3×) also: Cited "see"
Va. Ct. App. · 1993 · confidence medium
Durham v. Commonwealth, 214 Va. 166, 169 , 198 S.E.2d 603, 606 (1973).
cited Cited as authority (rule) Rollston v. Commonwealth
Va. Ct. App. · 1991 · confidence medium
Durham v. Commonwealth, 214 Va. 166, 169 , 198 S.E.2d 603, 606 (1973); Upshur v. Commonwealth, 170 Va. 649, 655 , 197 S.E. 435, 437 (1938).
discussed Cited as authority (rule) Person v. Commonwealth
Va. Ct. App. · 1990 · confidence medium
Hairston v. Commonwealth, 2 Va. App. 211, 214, 343 S.E.2d 355, 357 (1986) (quoting Crawford v. Commonwealth, 217 Va. 595, 597 , 231 S.E.2d 309, 310 (1977)); see also Bunch v. Commonwealth, 225 Va. 423, 439-40 , 304 S.E.2d 271, 280-81 , cert. denied, 464 U.S. 977 (1983); Durham v. Commonwealth, 214 Va. 166, 168 , 198 S.E.2d 603, 605-06 (1973).
discussed Cited as authority (rule) Kenneth Williams v. Robert R. Kelly, Warden (2×)
4th Cir. · 1987 · confidence medium
In lieu of direct evidence, Virginia law is satisfied by “[inferences ... drawn from proven facts so long as they are reasonable and justified.” Durham v. Commonwealth, 214 Va. 166, 169 , 198 S.E.2d 603, 606 (1973).
Luther Durham, Jr.
v.
Commonwealth of Virginia
Record 8193.
Supreme Court of Virginia.
Aug 30, 1973.
198 S.E.2d 603
Billy J. Tisinger ( David G. Simpson; Harrison & Johnston, on brief), for plaintiff in error., Linwood T. Wells, Jr., Assistant Attorney General (Andrew P. Miller, Attorney General, on brief), for defendant in error.
I'Anson.
Cited by 77 opinions  |  Published
I’Anson, J.,

delivered the opinion of the court.

Luther Durham, Jr., [1] defendant, was tried by a jury for the murder of Mrs. Annie Snow, convicted of murder of the first degree, and was sentenced to life imprisonment. We denied his petition for a writ of error to the judgment. After defendant’s successful habeas corpus proceeding in the United States District Court for the Western District of Virginia, he was again tried for the offense in the court below, found guilty by a jury of murder of the first degree, and his punishment was fixed at life imprisonment. He was sentenced accordingly, and he is here on a writ of error to that judgment.

The sole question before us is whether the evidence was sufficient to warrant the trial court’s instruction that a homicide committed[*167] in the commission of, or an attempt to commit, robbery is murder of the first degree.

The evidence shows that on February 25, 1963, Mrs. Snow and her daughter, Mrs. Waltine Hoover, were found stabbed to death in the Hoover home near Double Toll Gate, in Frederick County, Virginia.

The only evidence as to the actual commission of the crimes was given by the defendant in his written and oral confessions or admissions.

On June 23, 1964, defendant, while an inmate at the Virginia State Penitentiary, voluntarily made a written statement implicating himself and another in the commission of the crimes. In this statement, which was introduced in evidence without objection, Durham declared that he and Otha Howard, who had in his possession a knife with a 3- to 3 H-inch blade, traveled by automobile to the Hoover home with the intent to “break in, in other words, to commit larceny.” He said they arrived at the Hoover home between 1:30 and 2:00 p.m. on February 25, 1963; that they parked the car in front of the house and both got out and went to the front door; that he knocked on the door three times but no one answered; that he “jimmyed” the door lock and both of them entered the house; that having found no one inside, he went back to the car for a sack and, upon returning, found Mrs. Snow lying in the hallway of the house on the first floor; that she had been “cut all to pieces” from six or seven stab wounds, and appeared to be dead; and that after hearing screams from an unseen woman he quickly left the premises in Howard’s automobile but returned approximately ten to fifteen minutes later to pick him up.

Defendant revisited the Hoover home while in the custody of the police on July 14, 1964. The testimony relating to this visit revealed that defendant called attention to the fact that the lock on the front door had been changed. Defendant also said at that time that he remembered going part of the way up the stairs and seeing the screaming lady (Mrs. Hoover) on the upstairs landing with Howard holding her with one hand and a knife in the other.

A police officer, who investigated the homicides less than an hour after they had occurred, testified that he found Mrs. Snow’s body lying in the dining room of the home, and that he was unable to see any wounds on her body until artificial respiration was attempted. He found Mrs. Hoover’s body on the upstairs landing.

[*168] There was no evidence that anything had been actually taken from the house. But a television set and a chair in the living room had been moved from their usual places.

Our inquiry is to determine whether Mrs. Snow was killed during the commission of, or an attempt to commit, robbery.

Code § 18.1-21 provides:

“Murder by poison, lying in wait, imprisonment, starving, or by any wilful, deliberate, and premeditated killing, or the commission of, or attempt to commit . . . robbery ... is murder of the first degree. All other murder is murder of the second degree.”

In Virginia the punishment for robbery is fixed by Code § 18.1-91, but there is no statutory definition of robbery. Hence we look to the common law for its definition. Butts v. Commonwealth, 145 Va. 800, 811, 133 S.E. 764, 767 (1926); Mason v. Commonwealth, 200 Va. 253, 254, 105 S.E.2d 149, 150 (1958).

Robbery at common law is defined as “the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation.” Jones v. Commonwealth, 172 Va. 615, 618, 1 S.E.2d 300, 301 (1939); Mason v. Commonwealth, supra, 200 Va. at 254, 105 S.E.2d at 150. The phrase “of the personal property of another, from his person or in his presence” has been broadly construed to include the taking of property from the custody of, or in the constructive possession of, another. Falden v. Commonwealth, 167 Va. 542, 545, 189 S.E. 326, 328 (1937); State v. Butler, 27 N.J. 560, 589, 143 A.2d 530, 547 (1958).

The degree of asportation necessary to constitute a taking under the common law definition of robbery need be only slight. Green v. Commonwealth, 133 Va. 695, 699, 112 S.E. 562, 563 (1922).

In Mason v. Commonwealth, supra, 200 Va. at 256, 105 S.E.2d at 151, we said:

“The violence or putting in fear, to constitute the essential element in robbery, must precede, or be concomitant with, the taking of the property from the person or presence of the owner. No violence, no excitation of fear, resorted to merely for the purpose of retaining a possession already acquired, or to effect escape, will, in point of time, supply the element of force or intimidation, an essential ingredient of the offense.”

[*169] Where the owner of personal property, or another having custody or constructive possession of the same, interposes himself to prevent a thief from talcing the property, and the force and violence used to overcome the opposition to the taking is concurrent or concomitant with the taking, the thief’s action constitutes robbery. State v. Butler, supra, 27 N.J. at 591, 143 A.2d at 547, 548; State v. Culver, 109 N.J. Super. 108, 112, 262 A.2d 422, 425 (1970); Brown v. State, 61 So. 2d 640 (Fla. 1952), cert. denied, 345 U.S. 913 (1953); State v. Burzette, 208 Iowa 818, 222 N.W. 394 (1928).

Defendant urges that since his confession, which is the only evidence presented as to the actual commission of the crime, shows that the homicide was committed while attempting to commit larceny, there was no intent to commit robbery and it cannot be inferred that the homicide occurred concurrently or concomitantly with the commission of or attempt to commit robbery. We do not agree.

Confessions are to be weighed like all other evidence and a jury may believe them in whole or in part, as reason may decide. If from the confession itself, or other evidence, it appears to a rational mind that a part is not true, a jury does not have to accept it. Upshur v. Commonwealth, 170 Va. 649, 655, 197 S.E. 435, 437 (1938).

An intent to commit robbery does not have to exist for any particular length of time. It may occur momentarily. Whether such an intent did exist is to be determined from the particular facts and circumstances of the acts committed.

Inferences may be drawn from proven facts so long as they are reasonable and justified. Webb v. Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29 (1963).

While defendant’s confession shows that he and Howard broke and entered the Hoover home with the intent to commit larceny, the jury did not have to accept the statement in its entirety if they did not believe it, especially in light of other evidence and later statements by the defendant which conflicted with his written confession.

It appears logical and reasonable to infer that while Howard and the defendant were in the process of carrying out their intended act of stealing, Mrs. Snow surprised the thieves by her appearance in the room, and their intention changed from the commission of larceny to robbery to accomplish their original purpose by overcoming her interference with the taking, and the homicide was committed in the course thereof. The putting in fear and violence were concurrent or concomitant with the larceny or attempt to commit lar[*170] ceny and indicate an intent to commit, or an attempt to commit, robbery. There could have been no motive for the killing of Mrs. Snow other than her interference with the taking of the property by her appearance on the scene or for fear of her subsequent identification of the thieves.

This is not a case where a homicide is committed for the purpose of retaining possession of property already acquired or to effect an escape. Hence it is clearly distinguishable from the facts in Mason v. Commonwealth, supra.

The instruction complained of was in the language of the statute and was warranted under the evidence. The judgment of the court below is

Affirmed.

1

. Also known as Luther Junior Durham.