Smith v. State

82 Miss. 793 | Miss. | 1903

Whitfield, C. J.,

delivered the opinion of the court.

The indictment is founded on section 1284 of the Code of 1892, which is as follows:

“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 indictment, in its charging part, is as follows: “Present that Edward Smith and Richard Smith feloniously in and upon the body of one Boone Irby an assault making, did then and there put him, the said Boone Irby, in bodily fear and danger with the intent the goods and chattels and personal property then and there on the person of the said Boone Irby then and there to feloniously steal, rob, seize, take, and carry away; and then and there five dollars, lawful money of the United States, of the value of five dollars, the personal property of the said Boone Irby, then and there being found, did” unlawfully and feloniously seize, rob, steal, take, and carry away.” The first instruction for the state follows the indictment literally. It is obvious, from a comparison of the statute with the indictment and-first charge for the state, that the offense described in the statute is not set out in either. Neither states that the persons said to be robbed were “put in fear of some immediate danger to their persons,” or “that the personal property was taken from their persons.” This is not a case of robbery by taking the personal property “in the presence” of the party alleged to have been robbed. The thing attempted to be charged is that the robbery was committed by taking the property from the person by putting the person in immediate fear of injury to his person. Tet both these essential averments are omitted from the indictment and said first instruction. This is a statutory offense, and the language of the statute should be strictly pursued.

Reversed and remanded.