BOGGAN ET AL. v. STATE

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Docket Number

No. 32293.

Attorney(S)

R.F.B. Logan and John W. Barbee, of Hernando, for appellants. The defendants were charged with robbery with deadly weapons, as provided in chapter 328, Laws of 1932, and notwithstanding this charge in the indictment, the state asked for and was granted the following instruction, to-wit: "The court instructs the jury for the state that if they believe from the evidence in this case beyond a reasonable doubt that the defendants, Buccine Boggan, Cliff Boggan and Charline Boggan, at or about the time testified to by the witnesses in this case, did willfully, unlawfully and feloniously take the personal property of William `Bill' Harris, to-wit: the $31.60, in his presence and against his will by violence to his person or by putting the said William `Bill' Harris in fear of immediate injury to his person, then the jury will find the defendant guilty of robbery without firearms and the form of your verdict may be: `We, the Jury, find the defendants guilty of robbery without firearms.'" Under the above instruction the defendants were really tried and convicted under section 1126 of the Code of 1930, which is in words and figures as follows, to-wit: Every person who shall feloniously take the personal property of another, in his presence or from his person and against his will, by violence to his person or by putting such person in fear of some immediate injury to his person, shall be guilty of robbery. This court in the case of Talley v. State, 164 So. 771, has decided this question in favor of the defendants. In this case Justice GRIFFITH speaking for the court, among other things, said: "Without prolonging the discussion or laying down any qualifications or distinctions in respect to the point last mentioned, we deem it sufficient to recur to the fact that the appellant was indicted under one statute and was prosecuted under another and a different statute; wherefore, his motion to exclude and for a peremptory charge should have been sustained. Reversed and appellants discharged." The court erred in overruling defendant's motion when the state rested to exclude the evidence and direct the jury to find the defendants not guilty. The verdict of the jury is contrary to the law and evidence in this case and we respectfully submit that this case should be reversed and these defendants discharged. Webb M. Mize, Assistant Attorney General, for the state. The contention of the appellants is that the indictment was drawn under chapter 328 of the Laws of 1932 and that the defendants were convicted under section 1126 of the Code of 1930. Chapter 328 of the Laws of 1932 created a new statute on robbery and did not repeal any of the existing statutes on robbery. Therefore, in this case the appellants were indicted for the highest degree of robbery and were convicted of robbery in a lesser degree. So far as we have been able to ascertain there are no Mississippi cases on this proposition under robbery. However, there is a long line of cases under homicide to the effect that a defendant having been convicted of manslaughter on evidence which would sustain conviction of murder cannot complain of the giving of a manslaughter instruction at the request of the state. Calicoat v. State, 131 Miss. 169, 95 So. 318; Blaylock v. State, 148 Miss. 1, 113 So. 627; Taylor v. State, 148 Miss. 713, 114 So. 823. Evidence tending to prove guilt must be considered most favorable to the state in determining propriety of refusal to direct a verdict of not guilty and also on determining whether to reverse on insufficiency of evidence. Redwine v. State, 149 Miss. 741, 115 So. 889; Pruitt v. State, 163 Miss. 235, 140 So. 683; Johnson v. State, 168 So. 479; Chisholm v. State, 168 So. 479. The evidence in the case was conflicting. There were numerous circumstances that were not agreed on by state's witnesses and defendant's witnesses. Therefore, an issue was made for the jury and the instructions requested by the defendants that were refused by the court below are properly refused, as a verdict on conflicting evidence will stand. Evans v. State, 159 Miss. 561, 132 So. 563; Kelly v. State, 158 Miss. 808, 131 So. 272.

Judges

Smith, C.J., delivered the opinion of the court.

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BOGGAN et al. v. STATE.

1. CRIMINAL LAW.

Where evidence for state, which jury believed, justified conviction of robbery, defendants' request for directed verdict of not guilty was correctly denied.

2. ROBBERY.

Statute dealing with robbery from person by deadly weapon and providing for possible death penalty did not repeal former statutes not mentioning deadly weapon and providing for imprisonment for term not over fifteen years, since later statute simply provided for greater punishment for commission of crime by use of deadly weapon (Code 1930, secs. 1126, 1128, 1280; Laws 1932, chap. 328, sec. 1).

3. INDICTMENT AND INFORMATION.

In robbery prosecution under indictment charging robbery with deadly weapon, accused could be found guilty of robbery without firearms under statute providing that accused may be found guilty of inferior offense, or other offense, commission of which is necessarily included in offense with which he is charged in indictment, since indictment under statute punishing robbery from person by deadly weapon includes all elements of crime defined by statute not mentioning deadly weapon (Code 1930, secs. 1126, 1128, 1280; Laws 1932, chap. 328, sec. 1).

Smith, C.J., delivered the opinion of the court.

This is an appeal from the conviction of robbery, the defense being an alibi. The evidence for the state, which the jury believed, justifies the verdict as to all the appellants; consequently the appellant's request for a directed verdict of not guilty was correctly denied. The indictment alleged that the robbery was committed by means of an assault with a deadly weapon, to-wit, a pistol. The evidence for the state as to the use of the weapon was in conflict.

The court below, in an instruction for the state, permitted the jury to "find the defendants guilty of robbery without firearms," and a verdict was returned accordingly.

The statutes pertinent are as follows:

Section 1126, Code 1930. — "Every person who shall feloniously take the personal property of another, in his presence or from his person and against his will, by violence to his person or by putting such person in fear of some immediate injury to his person, shall be guilty of robbery."

Section 1128, Code 1930. — "Every person convicted of robbery shall be punished by imprisonment in the penitentiary for a term not more than fifteen years."

Section 1, chapter 328, Laws 1932. — "That every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery and, upon conviction, shall be punished by death if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at death, the court shall fix the penalty at imprisonment in the penitentiary for any term not less than three years."

The last of these statutes does not repeal the two former, but simply provides for a greater punishment than does section 1128 for the commission of a crime by the use of a deadly weapon. An indictment under chapter 328, Laws 1932, includes all the elements of the crime defined by section 1126 of the Code. Section 1280, Code 1930, provides that "On an indictment for any offense the jury may find the defendant guilty of the offense as charged, or of any attempt to commit the same offense, or may find him guilty of an inferior offense, or other offense, the commission of which is necessarily included in the offense with which he is charged in the indictment, whether the same be a felony or misdemeanor, without any additional count in the indictment for that purpose." This statute controls here; and the court committed no error by ruling in accordance therewith.

Affirmed.

BOGGAN et al. v. STATE.

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