Opinion
No. 40138.
May 28, 1956.
1. Robbery — evidence — insufficient to sustain conviction.
Headnote as approved by Hall, J.
APPEAL from the Circuit Court of Bolivar County; ED H. GREEN, Judge.
Alexander, Feduccia Alexander, Cleveland, for appellant.
I. Some degree of participation in the criminal act must be shown in order to establish criminal liability.
II. To aid and abet the commission of a crime, the defendant must do something that will incite, encourage or assist the perpetrator in the commission of a crime.
III. Mere presence at the scene and approval thereof does not make the defendant a participant in the crime.
IV. A conspiracy to commit a crime must be shown by word, act or deed on the part of the defendant, or it must be shown that the defendant counselled, commanded or influenced the commission of the crime.
Collation of authorities: Harper v. State, 83 Miss. 402, 35 So. 573; Owen v. State, 80 Miss. 510, 32 So. 152; Bruce v. State, 138 Miss. 382, 103 So. 133; Cochran v. State, 191 Miss. 273, 2 So.2d 822.
V. Directed verdict should be granted where evidence is insufficient to show participation in crime, even though accused may have received some of goods stolen. Mullen v. State, 202 Miss. 795, 32 So.2d 874; 46 Am. Jur. 151.
VI. Instruction for State erroneous where it is misleading, assumes facts, and stresses presence to denote participant in the crime. Crawford v. State, 133 Miss. 147, 97 So. 534; Hemphill v. State, 222 Miss. 516, 76 So.2d 512; Marble v. State, 194 Miss. 386, 15 So.2d 693; Harper v. State, supra.
VII. In prosecution for robbery, jury had no right to capriciously disregard the testimony of the accused. Bailey v. State (Ala.), 8 So.2d 202.
VIII. The State's attorney may not cross-examine or inquire into the defendant's criminal record where such record is entirely too remote in point of time and where the accused has had an opportunity to reform, and to permit the said State's attorney to do so is error. Winn v. State (Tex.), 113 S.W. 918; Hanks v. State (Tex.), 117 S.W. 150; Bogus v. State (Tex.), 114 S.W. 823; Wesley v. State (Tex.), 85 S.W. 802; Vick v. State (Tex.), 159 S.W. 50; Anno. 6 A.L.R. 1641-43.
IX. Duty of Trial Court to provide suitable and comfortable quarters for jury to deliberate their verdict. John H. Price, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. The jury were justified in believing that appellant was an active participant in the crime of armed robbery with Bolton and Grigsby.
II. It was unnecessary that the State rely solely upon the fact that the accused receive some of the stolen money in order to sustain a conviction.
III. The instruction given the State appearing on page 86 of the record is not erroneous.
IV. In this prosecution, the jury had every right to disregard the testimony of the accused.
V. The State's attorney did not exceed his authority in inquiring into the defendant's criminal record.
VI. The failure of the Court to provide the jury with spacious and comfortable quarters in which to deliberate their verdict is not reversible error.
Collation of authorities: Woodward v. State, 180 Miss. 571, 178 So. 469; Jones v. State, 178 Miss. 636, 174 So. 546; Mack v. State, 17 So.2d 200; Sec. 1693, Code 1942.
Lonnie Lenzy was jointly indicted with Angus E. Bolton and Horace Grisby for the robbery of Tom Levingston of $170.00. A severance was granted and Lenzy was tried separately and convicted and sentenced to the penitentiary for a term of fifteen years, from which he appeals.
There is no substantial dispute in the evidence. It shows that the appellant was employed in the freight warehouse of the C.B. Q. Railroad in Chicago. His employment was part time only, and in his spare time he was engaged in shining shoes. It seems that his shoeshine stand was on the sidewalk. He owned a 1951 Plymouth automobile which was kept parked in the street at the curb adjacent to his shoeshine stand and was used as a waiting spot for customers who desired to be served. He became acquainted with Grisby at this shoeshine stand and in the latter part of May 1955 Grisby approached him with reference to renting the car to make a trip to Mississippi, where he desired to visit his father who lived in Greenville. They agreed on a price of $50.00 for the trip with Grisby paying all expenses. Lenzy was born in Georgia and had never been to Mississippi and he was to make the trip with Grisby. When they were ready to leave Grisby informed Lenzy that he wished to go by Gary, Indiana, and pick up a friend who had a brother living in Mound Bayou, Mississippi. They left Chicago late on the last Friday night in May and went to Gary, Indiana, where they picked up Bolton. The two of them paid Lenzy the $50.00 agreed on for the trip and they all departed for Mississippi. Each one drove a part of the time. They arrived in Memphis, Tennessee, late Sunday with a bursted exhaust pipe and they remained over until Monday to get this repaired in Memphis. They left Memphis about 3 or 4 P.M. on Monday and came on to Mississippi, travelling on U.S. Highway No. 61. They needed gasoline when they arrived at Shelby, Mississippi, and Grisby bought the gasoline for the car and made inquiry as to where they could obtain some whiskey. They had been drinking some along the way, but none of them were drunk. They were told that there was a liquor store on Highway 61 about 2 miles north of Cleveland, Mississippi. They had driven all of Friday night and Saturday night and were sleepy. Bolton was driving the car when they left Shelby and Grisby was riding on the front seat with him. Lenzy was riding on the back seat and went to sleep. Bolton and Grisby found the liquor store and turned the car around and headed it back north and parked it by the side of the highway about 200 yards from Levingston's liquor store. Grisby and Bolton both had guns but Lenzy did not know this and he had no gun himself. Grisby and Bolton got out of the car and went in the liquor store and held up and robbed the proprietor of approximately $176.00. Lenzy was asleep on the back seat of the car during all of this procedure. They came back to the car after the robbery, having bought a half-pint of liquor at the beginning of the robbery. They threw this bottle on the back seat and it struck Lenzy and awakened him. They then drove north and in the meantime Levingston had notified the authorities of the robbery. The officers set up a road block just south of Clarksdale and the three of them were apprehended there and were shortly carried back to Levingston's liquor store above Cleveland. Levingston promptly identified Bolton and Grisby as the two who had robbed him but he said that he had never seen Lenzy before. All three of the prisoners were searched and Bolton and Grisby had more money on them than the amount taken in the robbery. Lenzy had $100.00 on his person which he stated consisted of some money that he already had before leaving Chicago amounting to between $45.00 and $55.00 plus the $50.00 which Grisby and Bolton had paid him.
Neither Grisby nor Bolton testified in the case. Lenzy testified that he knew nothing of the robbery, was asleep at the time, did not know that either of his companions possessed a gun and did not hear them talk about any robbery or make any plans toward a robbery and he denied fully all connection with it. His statement is reasonable and is not contradicted by any of the physical facts or by any testimony in the case. His only crime seems to be that he rented his car to two criminals and was riding on the back seat with them when they were caught. A proper request was made for a peremptory instruction, which was refused by the trial court and the case submitted to the jury. (Hn 1) We have carefully examined the record and we are of the opinion that the requested peremptory instruction should have been granted as there was no evidence of any nature to connect the appellant with this crime. The judgment of the lower court will therefore be reversed and the appellant discharged.
Reversed and appellant discharged.
McGehee, C.J., and Lee, Ethridge and Gillespie, JJ., concur.