Petty v. StatePetty v. State
The defendant was indicted for attempted robbery in the first degree. Sentence was twelve years’ imprisonment. This case is reversed and the cause remanded because the indictment did not charge any offense.
The indictment, in pertinent part, charged that the defendant
“did, with the intent to commit the crime of Robbery 1st Degree, Section
13A-8-41 of the 1975 Code of Alabama, attempt to commit said offense, in violation of Title13A-4-2 of the 1975 Code of Alabama, . . .”
This indictment charges that the defendant violated the attempt statute by attempting to commit the crime of robbery in the first degree.
Alabama‘s attempt statute is found in
“Section
“(a) A person is guilty of an attempt to commit a crime if, with the intent to commit a specific offense, he does any overt act towards the commission of such offense.”
Robbery in the first degree is defined in Section
“Section
“(a) A person commits the crime of robbery in the first degree if he violates section
13A-8-43 and he:
“(1) Is armed with a deadly weapon or dangerous instrument; or
“(2) Causes serious physical injury to another.”
(emphasis added)
By statutory definition, robbery in the third degree is a lesser included offense of robbery in the first degree.
“Section
“(a) A person commits the crime of robbery in the third degree if in the course of committing a theft he:
“(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; or
“(2) Threatens the imminent use of force against the person of the owner or any person present with the intent to compel acquiescence to the taking of or escaping with the property.”
(emphasis added)
Of significance is the phrase “in the course of committing a theft” which is defined to embrace “acts which occur in an attempt to commit or the commission of theft, or in immediate flight after the attempt or commission.” Section
Because the definition of robbery has been enlarged and expanded by the new criminal code, “the former offense of assault with intent to rob has been merged into the present offense of robbery.” Marvin v. State, 407 So. 2d 576, 579 (Ala. Cr. App. 1981). For this same reason the former crime of attempted robbery now constitutes robbery. Section
The Attorney General recognizes that “the shadow of Reed v. State, 372 So. 2d 872 (Ala. Cr. App. 1978), reversed, 372 So. 2d 876 (Ala. 1979), looms over the instant case.” We find the principles of Reed indistinguishable, and therefore, its application controlling.
In Reed, our Supreme Court found that the statutory offense of bribery included the attempt to bribe. The court specifically held that because the statute defined bribery — a felony — to include attempts to bribe, an accused charged for the felony of bribery could not be convicted of a misdemeanor under the general attempt to commit a crime statute. Reed, 372 So. 2d at 877.
As in Reed, we hold that the statute of robbery in the third degree subsumes all activities and conduct which may be characterized as an attempt to commit robbery. The statute defines the crime of robbery as including the attempt to commit robbery and requires no actual theft or asportation of property.
As in Reed, 372 So. 2d at 878, it is pertinent to inquire: What possible set of circumstances would fall short of the proscribed conduct of Section
A trial under an indictment so defective that no valid conviction can be rendered will not support a plea of former jeopardy and the defendant may be reindicted. Williams v. State, 333 So. 2d 613, 614 (Ala. 1976). The judgment of the circuit court is reversed and the cause remanded.
REVERSED AND REMANDED.
All Judges concur.