STATE v. SNOWDEN

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Docket Number

No. 30155.

Attorney(S)

W.D. Conn, Jr., Assistant Attorney-General, for the state. It will be noted, by reference to section 1126, of the Code of 1930, that robbery is defined as the felonious taking of 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. The indictment in this case charges that appellee and others feloniously assaulted R.W. Johnson with a deadly weapon and put him in fear of bodily harm and of immediate injury to his person and took from him certain money in his presence and against his will and then and there feloniously, unlawfully and violently, did take, steal and carry away, etc. The indictment appears to me, not only not susceptible to the construction placed upon it by appellee, but that it charges a robbery under the provisions of the statute above referred to. Considering this indictment in the light of State v. Presley, 91 Miss. 377, 44 So. 827, it appears that the indictment here is in all respects good and valid as charging a robbery under the provisions of section 1126 of the Code of 1930. The indictment set out in the opinion of this court in the case of Webster v. State, 146 Miss. 682, 11 So. 749, is almost identical with the indictment in this case and the court held that indictment good. M.V.B. Miller and J.V. Gipson, both of Meridan, for appellee. The basic principle of English and American jurisprudence is that no man shall be deprived of life, liberty, or property without due process of law; and notice of the charge or claim against him, not only sufficient to inform him that there is a charge or claim, but so distinct and specific as clearly to advise him what he has to meet, and to give him a fair and reasonable opportunity to prepare his defense, is an indispensable element of that process. Fontana v. United States, 262 Fed. 283; State v. Traylor, 56 So. 524. The proper way to describe property charged to be stolen in a robbery and to identify the same is shown by a reference to Bishop on Directions and Forms (1 Ed.), 513 and 514 and see 1 Wharton on Precedents of Indictments, and Pleas, p. 410. This court is definitely committed to the proposition that the gist of robbery is the felonious taking as in larceny, and that there can be no robbery without the indictment charging larceny with that degree of certainty required in a larceny indictment. Jones v. State, 95 Miss. 121, 48 So. 407. An omission in an indictment for a felony going to the very essence of the offense renders it void and subject to attack at any time. Cook v. State, 72 Miss. 517. Intent to steal must be alleged and proven. Jones v. State, 95 Miss. 121, 48 So. 407, 21 Ann. Cas. 1137. In the case of Rains v. State, 36 Me. 532, it was held "A charge of larceny is always included in a charge of robbery. The indictment therefore, should contain all the allegations essential in larceny, with the added matter that makes the larceny robbery. 3 Bishop's New Criminal Procedure, p. 1865. The indictment should describe the property taken by robbery substantially the same as in larceny. An information describing the money as "twenty-five dollars in money, the property of John Bond;" without any excuse for not giving a better description, is fatally defective. An indictment describing the property taken as (certain money and one silver watch chain) is sufficient. Section 775, page 217, Criminal Law and Procedure by Hughes. Robbery is a common-law crime and in an indictment for same all elements must be specifically set out. State v. England, 86 So. 728. A defective indictment cannot be cured by intendment or presumptions. Cook Case, 72 Miss. 519, 520, 521; Riggs v. State, 26 Miss. 51. In quite a number of cases this court is committed to the proposition that unless the property, as well as the owner of the same, is clearly described in the indictment for embezzlement, false pretenses, larceny and burglary that the indictment is fatally defective, and of course the same would hold true in an indictment for robbery. Hughes v. State, 20 So. 838, 74 Miss. 369; State v. Ellis, 59 So. 841, 102 Miss. 541. In burglary the ownership of the building burglarized must be alleged and it is not sufficient to charge the ownership in a partnership name unless the indictment sets forth the names of the several partners. This requirement is essential to the validity of the indictment and is for the protection of the citizen, and a conviction on such indictment cannot be upheld. Hampton v. State, 54 So. 722; Wright v. State, 94 So. 716, 130 Miss. 682.

Judges

Anderson, J., delivered the opinion of the court.

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STATE v. SNOWDEN et al.

1. INDICTMENT AND INFORMATION.

Formal and technical words of statute defining offense are dispensable in indictment.

2. INDICTMENT AND INFORMATION.

Indictment, if charging offense certainly and substantially in language equivalent in meaning to statutory language defining offense, is sufficient.

3. INDICTMENT AND INFORMATION. Allegations of indictment for robbery held sufficient, though not following statutory form ( Code 1930, section 1126).

Indictment alleged in substance that defendant "unlawfully and feloniously" made assault with pistol on complaining witness, put him "in fear of bodily harm and of immediate injury to his person," and took about six dollars in lawful money of the United States from him, and "in the presence of and against the will of" the complaining witness took money, contrary to the form of the statute in such case made and provided.

4. ROBBERY.

Indictment charging robbery "of about six dollars lawful and legal money and tender of the United States of America of the value unknown" held sufficient allegation of amount (Code 1930, section 1126).

5. ROBBERY.

Allegation in indictment for robbery that money was feloniously taken, stolen, and carried away by putting owner in fear held sufficient to charge intent to steal (Code 1930, section 1126).

Anderson, J., delivered the opinion of the court.

Appellees, Laval Snowden, Rex Ritcher, and Burkett May, were indicted by the grand jury of Lauderdale county of the crime of robbing one R.W. Johnson of the sum of about six dollars. Appellees demurred to the indictment, and the demurrer was sustained. From that judgment the state prosecutes this appeal.

The indictment, leaving off the formal parts, is in this language:

"That Laval Snowden, Rex Richter, and Burkett May in said county, on the ____ day of ____ A.D., 1932, in and upon R.W. Johnson unlawfully and feloniously did make an assault with a deadly weapon, to-wit a pistol, and him the said R.W. Johnson, did then and there unlawfully and feloniously put in fear of bodily harm and of immediate injury to his person, and about six dollars lawful and legal money and tender of the United States of America of the value unknown to the grand jurors of the property of the said R.W. Johnson, in the presence of and against the will of the said R.W. Johnson, and then and there feloniously, unlawfully, and violently did steal, take and carry away contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Mississippi."

Appellees' attack on the indictment is based on the following grounds: (1) The indictment does not follow the statutory form; (2) it fails to charge appellees with the larceny of any amount of money; and (3) it fails to charge an intent to steal. The robbery statute is in this language: "1126. — (Code of 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."

The formal and technical words of the statute are dispensable in an indictment. If the offense charged is certainly and substantially described in language equivalent in meaning to the language of the statute, it is sufficient. Kline v. State, 44 Miss. 317, 2 Morris St. Cases 1695; Roberts v. State, 55 Miss. 421; Harrington v. State, 54 Miss. 490; State v. Presley, 91 Miss. 377, 44 So. 827; Richburger v. State, 90 Miss. 806, 44 So. 772; State v. Traylor, 100 Miss. 544, 56 So. 521; State v. May, 147 Miss. 79, 112 So. 866; Wexler v. State (Miss.), 142 So. 501. We think the indictment in this case meets that requirement.

The indictment charges the larceny of "about six dollars lawful and legal money and tender of the United States of America of the value unknown to the grand jurors, etc." This allegation as to the amount is sufficient.

The charge in the indictment that the money was feloniously taken was sufficient to charge an intent to steal. Allegation that defendant did feloniously take, steal, and carry away property by putting the owner in fear is sufficient to allege intent to steal. Webster v. State, 146 Miss. 682, 111 So. 749.

Reversed and remanded.

STATE v. SNOWDEN et al.

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