91 So. 277 | Miss. | 1922
delivered the opinion of the court.
The appellant was indicted and convicted of the crime of robbery and sentenced to serve a seven-year term in the penitentiary. From which judgment he prosecutes this áppeal.
The material averments of the indictment are as fol- ' lows:
“That Vernon Brady, on the 6th day of September, 1921, in the county and district aforesaid in and upon one Wesley Hopkins feloniously did make an assault and him the said Wesley Hopkins did then and there feloniously put in bodily fear Of immediate injury to his person, and ten dollars and forty cents of good and lawful money of the United States of America, of the value of ten dollars and forty cents, of the property of the said Wesley Hopkins, and one pocketknife, of the value of one dollar and fifty cents, of the property of the said Wesley Hopkins, from the person and against the will of the said Wesley Hopkins, then and there feloniously and violently did take, steal, and carry away, against the peace and dignity of the state of Mississippi.”
There was a demurrer filed and overruled to this indictment, and the first assignment of error is predicated upon this action of the court. While the demurrer contains several grounds, the one upon which the appellant insists the court should have sustained the indictment is as follows :
“Said indictment attempts to charge in one count two separate and distinct methods of robbery.”
While it is true that robbery may be committed in either one of these two ways, namely, by violence to the person or by putting the person in fear of immediate injury to his person, yet it is also true that, where robbery is committed by doing both of these acts, namely, by the use of personal violence and putting such person in fear of immediate injury to his person, there is but one crime charged, namely, that of robbery. The method of committing the robbery Avas by the means described in both parts of the statute. While either would have been robbery, yet the use of both only makes the party doing both acts guilty of the one crime of robbery. The conjunctive conjunction “and” is used in the indictment. The indictment in this case comes squarely under the rule announced in Bishop’s Criminal Procedure, vol. 1, section 436, which reads as follows:
“A statute often makes punishable the doing of one thing, or another, sometimes thus specifying a considerable number of things. Then, by proper and ordinary construction, a person Avho in one transaction does all, violates the statute but once, and incurs only one penalty. Yet he violates it equally by doing one of the things. Therefore the indictment on such a statute may allege, in a single count, that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction ‘and’ where the statute has ‘or,’ and it will not be double,*585 and it will be established at the trial by proof of any one of them.”
This rule is quoted with approval in Jimerson v. State, 93 Miss. 685, 46 So. 948, which is directly in point. It therefore follows that the court was correct in overruling the demurrer.
It is also insisted that the state failed to proye the venue. The testimony upon this question is as follows:
“Q. Where did that take place (referring to the alleged robbery) ? A. Terrapin Bridge.
“Q. Is that in Jones county? A. Yes.
“Q. Second district, state of Mississippi? A. Yes.”
It is the contention of the appellant that Jones county is in the Second chancery court district and the second supreme court district of the state, and that these questions and answers could have meant these districts, as well as the Second judicial- district of Jones county. We think, hoAvever, from the context the Second district referred to was the second judicial district of Jones county, state of Mississippi.
It is also urged that the court was in. error in refusing instruction No. 3, requested by the appellant. This instruction reads as follows:
“The court instructs the jury that, if there are two reasonable theories arising out of the.evidence of this case, one favorable to the state and the other favorable to the defendant, it is the duty of the jury to accept the one favorable to the defendant, although the one favorable to the state is the more reasonable and supported by the stronger evidence.”
Under the testimony in this case, the person who was robbed identified this appellant as one of the two men who robbed him. While this refused instruction was approved by the court in the case of Thompson v. State, 83 Miss. 287, 35 So. 689, since that time it has been held at least three times that it was not error to refuse it. In fact, the giving of this instruction in these later cases has been disapproved. These cases are Runnels v. State,
Without setting forth in detail the facts testified to by the man who ivas robbed, suffice it to say that, from his testimony, the jury were warranted in believing that this appellant and another man robbed him, both by putting him in fear of some immediate injury to his person, and also by violence to his person.
We find no errors in the action of the trial judge. The judgment of the lower court is affirmed.
Affirmed.