State v. Presley

44 So. 827 | Miss. | 1907

Calhoon, J.,

delivered the opinion of the court.

The indictment for robbery is under Code 1906, § 1361. There was trial, conviction, and then a motion in arrest of judgment and for discharge. The grounds of the motion were because (1) the indictment is fatally defective, in that it does not charge an assault; (2) because it does not charge an intent to rob or'steal; (3) because it does not allege a larceny; (4) because it does not charge that the person robbed was “ put in fear’7; (5) because it does not charge that the taking was “ against the will. The court sustained this motion, and ordered the defendant discharged from further answering that indictment, but held him under his bond to answer another indictment if found by the grand jury.

In so far as it concerns the merits of this case, the language of the indictment is that the defendant “unlawfully, feloniously, forcibly, and violently did rob and steal and take from the person of William M. Knight certain personal property of said Knight, to-wit, one pistol, worth $10 and $2 in silver money of the United States currency, and all of the aggregation value of $12, contrary,” etc. Of course, it is not necessary that the person robbed should have been put in fear where the goods were taken from his person. Smith v. State, 82 Miss., 793; 35 South., 178. Taking the property from, and by violence to, the person is one thing under the statute, and putting the person in fear of injury is another.

The omission of the word “ assault ” is not fatal here, because the charge is of acts which are in fact an assault. An assault is a conclusion of law from acts done, and our statute on robbery does not make it necessary to aver it technically, nor did the common law.

The violence is sufficiently charged, if it were necessary, and according to 2 Bishop on Criminal Procedure, § 1004, an indictment without it may be good if the meaning is otherwise conveyed. The same authority in § 1005 distinctly says that “putting in fear” is essential only where there is no force; and so Mr. Bishop says in § 1006 that the term “ against his will ” is not essential. In the case before us we think the indictment charges a condition of things manifestly against the will of the party robbed. Technical law is good law under proper circumstances, but not where it shocks common sense. One cannot “ unlawfully, feloniously, forcibly, and violently ” rob and steal from the person of another, without its being against his will; and here it cannot be said that, though -that is an infallible argument that it was against the will, still it is not perfectly charged. Such a doctrine cannot be invoked where the terms of the statute are otherwise duly covered. The exact language of a statute need not be used, where what is tantamount is fully set out.

The ruling below in our opinion was incorrect, and we reverse it, and remand the case, with instructions to the court below to sentence the accused on the conviction under the indictment against him.