Summary
In Odom v. State, 172 Miss. 687, 161 So. 141, a robbery case, a felony, the motion for a new trial was heard in the absence of a defendant in custody.
Summary of this case from Hamburg v. StateOpinion
No. 31634.
May 6, 1935. Suggestion of Error Overruled June 10, 1935.
1. CRIMINAL LAW.
Rule that, where there is an unlawful assemblage to commit a particular crime, one who of his sole volition goes outside of main purpose and commits another crime in no way related to mutually contemplated crime, he only is liable, does not apply if the crime so committed was the actual and probable consequence of the common purpose, and even though none of the parties intended at the outset to do the thing constituting that particular crime.
2. ROBBERY.
Where evidence showed that defendant and codefendants assaulted victim, not for purpose of robbing him of his pistol, but for purpose of driving him out of his employment as a guard at a mill where a strike was in progress, defendant was nevertheless liable for robbery committed, since robbery was the reasonable outgrowth of defendants' unlawful purpose.
3. ROBBERY.
Evidence held to sustain conviction for robbery.
4. CRIMINAL LAW.
To entitle defendant to new trial based on facts existing before and during trial, defendant and counsel must make affidavit or testify under oath that they were ignorant of such facts until after trial.
5. CRIMINAL LAW.
In prosecution for robbery of mill guard during strike, defendant held not entitled to new trial on ground that public mind was highly inflamed against strikers of which defendant was one, and on that account he failed to get an impartial trial, where it did not appear that matters relied upon were unknown to defendant and his counsel before trial was entered upon.
6. CRIMINAL LAW.
In prosecution for robbery, that one juror purchased copy of newspaper reporting trial held not ground for new trial, where paper contained nothing prejudicial to accused, and merely stated facts known to every one, juror was not shown to have read account, and defendant and counsel did not testify under oath or make affidavit that they were ignorant of such matters during trial.
7. CRIMINAL LAW.
In prosecution of striker for robbery of guard during strike, that two jurors asked for protection from violence of mob of union workers, reported to be marching on town, when verdict of guilty was announced, held not ground for new trial, since jurors, had they been influenced by fear of violence, would have returned verdict of acquittal.
8. CRIMINAL LAW.
Defendant held entitled to waive right to be present on hearing of motion for new trial in felony prosecution, where it was not shown that he was prejudiced thereby (Code 1930, section 1276; Const. 1890, section 26).
APPEAL from circuit court of Attala county.
HON. J.F. ALLEN, Judge.
Pearl Odom was convicted of robbery, and he appeals. Affirmed.
Guyton Thornton, of Kosciusko, and J.E. Franklin, of Jackson, for appellant.
The appellant was not accorded in this case that fair and impartial trial which section 26 of our Constitution guarantees to him.
Magness case, 103 Miss. 30, 60 So. 8; Cartwright v. State, 71 Miss. 82, 14 So. 526; Sprinkle v. State, 102 So. 844, 137 Miss. 731; Holifield v. State, 132 Miss. 446, 96 So. 306; Davis v. State, 132 Miss. 448, 96 So. 307.
On the morning of September 28th, the evidence having all been then submitted, Mr. Bell, one of the jury bailiffs, purchased for Dan Rimmer, a juror, the Commercial Appeal, in which was the article found on page 316 of the record. This article is headed: "Striker Being Tried for Beating Officer — Militiamen Guard Court During Hearings." This article is headed that the National Guard was guarding the court during this trial — a statement without fact. The appellant did not know that this information, false and incompetent, had reached the jury, and had no opportunity to controvert it as a fact or object to its competency. But it was a potent aid in cementing in the minds of the jury the belief that the sentiment manufactured in secret caucus and camouflaged by a cut-and-dried mass meeting was true beyond a reasonable doubt.
Ross R. Barnett and P.Z. Jones, Jr., both of Jackson, for appellant.
The jury was not instructed as to what are the elements of the crime of robbery. That is, the jury was not told what it takes to commit robbery.
16 C.J. 968; William v. Bates, 90 So. 886; Dedeaux v. State, 87 So. 664; Gates v. State, 135 So. 185; Poe v. State, 132 So. 92.
An instruction is erroneous which assumes to state all the elements of the crime, but omits one or more of them, or which refers the jury to the indictment for information to ascertain any of the essential elements.
16 C.J. 968; Upton v. State, 108 So. 287; Thompson v. State, 130 So. 112; Lane v. State, 70 So. 982; Cummins v. State, 110 So. 206; Y. M.V.R.R. Co. v. Cornelius, 95 So. 90; Southern R.R. Co. v. Ganong, 55 So. 355; 2 Thompson on Trial (2 Ed.), sec. 2327; Martin v. State, 142 So. 16.
The jury so far as this record shows never knew that before it could convict Pearl Odom it had to be shown and it had to believe that Pearl Odom with intent committed the robbery with which he stood accused.
Hale v. State, 16 So. 387.
If there is any doubt as to the propriety of an instruction, that doubt should be resolved in favor of the accused.
Gambrell v. State, 46 So. 198.
The verdict was contrary to the law and the evidence.
Bishop on Criminal Law (9 Ed.), sec. 634, page 461; Lusk v. State, 2 So. 256; Lyon v. State, 92 So. 582; McBridge v. State, 126 So. 406.
A mere battery by one of another with no intent to steal is not robbery.
2 Bishop on Criminal Law, page 863; Mahony v. State, 26 S.W. 622; Bailey v. State, 122 S.W. 497; U.S. v. Durkee, 25 Fed. Cases Number 15009 Mcall 196; 122 S.W. 497.
W.D. Conn. Jr., Assistant Attorney-General, for the state.
At the time of the trial there was no motion made to exclude the evidence and direct a verdict nor was there any peremptory instruction requested.
Under the circumstances of this case, where the accused is positively identified by several witnesses and where there is proof of an alibi by other witnesses, I think it is an out and out question for the jury.
Evans v. State, 159 Miss. 561, 132 So. 563; Brown v. State, 103 Miss. 639, 60 So. 726; Jackson v. State, 105 Miss. 782, 63 So. 269; Wells v. State, 112 Miss. 76, 72 So. 859; Spight v. State, 120 Miss. 752, 83 So. 84; Chandler v. State, 143 Miss. 312, 108 So. 723; Matthews v. State, 148 Miss. 696, 114 So. 816; Steward v. State, 154 Miss. 858, 123 So. 891; Thomas v. State, 129 Miss. 332, 92 So. 225.
Where parties combine to commit crime, the law imputes the guilt of each to all thus engaged, and pronounces all guilty of any crime committed by any in the execution of the common purpose, as one of its natural and probable consequences, even though none of the parties intended at the outset to do the particular thing constituting the crime.
Lusk v. State, 64 Miss. 845, 2 So. 256; Woodward v. State, 166 Miss. 596, 143 So. 859.
It is said that at the outset there was a mass meeting held some two or three weeks prior to the trial. Counsel evidently knew all about this mass meeting prior to the trial, as much as they did after the trial was over. At least, no showing is made that they did not know about it and if the atmosphere was as hostile as they would now have this court believe it was, it was their duty to either ask for a continuance on account of this "hostility" or else for a change of venue.
Hilbun v. State, 167 Miss. 725, 148 So. 365.
There is no showing that the juror, Rimmer, or any other juror, ever read the paper, or that any of them saw the article which is appended to the motion for a new trial as an exhibit. But, assuming that every member of the jury read the article, there is nothing in it which would be calculated to prejudice the jury one way or the other.
The proof shows that one of the jurors wanted to go into a toilet, and the bailiff, after seeing that it was unoccupied, allowed him to go in and then stood at the door. The bailiff testified that no one approached him, and that he quickly rejoined the group. Under such circumstances, there was no error.
Queen v. State, 152 Miss. 723, 120 So. 838; Wells v. State, 162 Miss. 617, 139 So. 859; Ervin v. State, 151 So. 177; Sullivan v. State, 149 Miss. 412, 115 So. 552.
A conspiracy, like any other controverted fact, may be shown by the acts of the parties, or by circumstances, as well as by their agreement.
Eaton v. State, 163 Miss. 130, 104 So. 729; Street v. State, 43 Miss. 2; Osborne v. State, 99 Miss. 410, 55 So. 52; Pickett v. State, 139 Miss. 529, 104 So. 529.
Defects in one instruction may be cured or supplemented by another or other instructions.
Williams v. State, 160 Miss. 485, 135 So. 210.
Time is not of the essence of the crime of robbery.
Section 1208, Code of 1930.
The matters of variance between the indictment and the proof were not called to the attention of the court prior to the verdict, nor was variance ever called to the attention of the trial court after verdict. This cannot be raised here for the first time.
Smith v. State, 112 Miss. 348, 72 So. 929; Horn v. State, 148 So. 310.
The statement that the indictment does not charge intent is met by several decisions of this court, to the effect that where it alleges that property was, in fact, taken, stolen and carried away, the element of intent is sufficiently charged.
Webster v. State, 146 Miss. 682, 111 So. 749; State v. Snowden, 164 Miss. 613, 145 So. 622.
It has been held that an allegation in an indictment (for feloniously taking personal property of another in his presence, by putting him in fear of injuries) that defendant did feloniously take, steal and carry away property, sufficiently alleges an intent to steal, as necessarily including the idea that property was taken with the intention of stealing.
Webster v. State, 146 Miss. 682, 111 So. 749; State v. Snowden, 164 Miss. 613, 145 So. 622; Jones v. State, 120 So. 199.
Argued orally by P.Z. Jones and Ross R. Barnett, for appellant.
Appellant and five others were jointly indicted in the circuit court of Attala county of the crime of robbery. Appellant was granted a severance, was tried, convicted, and sentenced to the penitentiary for the term of ten years. From that judgment he prosecutes this appeal.
The charge was that appellant with the five others robbed G.W. Blount of a pistol of the value of thirty-five dollars. The Aponaug Manufacturing Company owns and operates a cotton mill located at Kosciusko. In August, 1934, many of the employees of the mill were on a strike; there was strong feeling between the union and nonunion employees. The strike was called by the union force. A company of National Guard was present patrolling the cotton mill to keep down disorder. G.W. Blount, a nonunion man, was employed as a guard, and the company furnished him with a pistol which he carried. He was on his way from the cotton mill to his boarding place to partake of his evening meal, when, according to the state's evidence, appellant and the five others assaulted him. Appellant and William Frier were armed with pistols, one of them jabbed his pistol in Blount's back and the other in his stomach, and commanded those present to take Blount's pistol off of him, which was done and never returned to him.
The evidence showed that the pistol was of the value of thirty-five dollars and was owned by the cotton mill and turned over to Blount to enable him to perform his duties as a guard. Appellant and the other five then took Blount some distance away, laid him across a log, and took a leather belt with a buckle on it and gave him a beating and directed him to quit his employment and leave town at once. Appellant's defense was an alibi.
It is argued that the state's case was not made out because the evidence showed that appellant and the others jointly indicted with him assaulted and whipped Blount, nor for the purpose of robbing him of his pistol, but for the purpose of driving him out of his employment as a guard. To sustain that contention, appellant relies on the well-established principle that, where there is an unlawful assemblage of persons to perpetrate a particular crime, and one, of his sole volition, goes outside of the main purpose and commits another crime, in no way related to the mutually contemplated crime, he only is liable. That principle has no application, however, if the crime committed by such an one was the actual and probable consequence of the common purpose, even though none of the parties intended at the outset to do the thing constituting that particular crime. Where the crime is the natural and probable outgrowth of the common purpose, all the conspirators are liable. Lusk v. State, 64 Miss. 845, 2 So. 256; Woodward v. State, 166 Miss. 596, 143 So. 859. The disarming of Blount was the natural and necessary thing to be done in order for the conspirators to accomplish their unlawful purpose; in other words the robbery was the reasonable outgrowth of their unlawful purpose.
One of the grounds of the motion for a new trial was that the verdict of the jury was against the overwhelming weight of the evidence. A reversal is urged upon that ground. We think the contention is without merit. There was ample evidence to support the verdict.
Appellant was one of the cotton mill strikers. Another ground of the motion for a new trial was that the public mind was highly inflamed against the strikers; that on account thereof appellant failed to get a fair and impartial trial. The motion sets out in great detail the things relied on as prejudicial to a fair trial. For aught that appears to the contrary in the motion, or in the evidence taken on the motion, all the matters and things relied on were known both to appellant and to his counsel before the trial was entered upon. In order to entitle the defendant to a new trial based on facts existing before and during the trial, the defendant and his counsel must make affidavit or testify under oath that they were ignorant of such facts until after the trial. Hilbun v. State, 167 Miss. 725, 148 So. 365; Grady v. State, 158 Miss. 134, 130 So. 117; Salmon v. State, 151 Miss. 539, 118 So. 610; Queen v. State, 152 Miss. 723, 120 So. 838; Lipscomb v. State, 76 Miss. 223, 25 So. 158; Brown v. State, 60 Miss. 447; Harris v. State, 61 Miss. 304; Long v. State, 163 Miss. 535, 141 So. 591. The facts set out as constituting this particular ground of the motion might have been pertinent on an application for a change of venue. No such application was made.
During the trial, one of the jurors, Rimmer, purchased a Commercial Appeal, in which it was stated that the trial was in progress; that the National Guard was present; that appellant was on trial for the crime of which he was convicted; that Blount had been called as a witness by the state and testified about the alleged whipping; that the public interest, however, was more largely in the case against Ritchie of Jackson, the president of the Mississippi Federation of Labor, scheduled for trial the next day. The paper contained no prejudicial statement against either appellant or Ritchie or the Federation of Labor. There was nothing in it calculated to bias the mind of the reading public for either one side or the other; it merely stated facts known to every one. The evidence on the motion failed to show that the juror, Rimmer, read the account of this proceeding in the paper. Neither appellant nor his counsel made an affidavit or testified under oath that they were ignorant during the trial of these facts, which, under the Hilbun Case and others, supra, was necessary.
Another ground of the motion for a new trial was that, when the jury was ready to return their verdict, two of them asked the deputy sheriff in charge to see that they were protected against violence when their verdict was announced. Before and during the trial it was currently reported that five hundred union men in the state of Mississippi were marching on Kosciusko and were going to "tear up the town." It may be that some or all of the jurors had heard this rumor; the evidence on the motion for a new trial does not divulge whether they had or not. It is manifest from the record that the jury had no ground to fear violence from either the public or the nonunion men in and around Kosciusko. On the other hand, if they had any fear of violence, it must have been from the union men who were strikers, and who, according to the state's evidence, had beaten and robbed Blount, and the union men rumored to be marching on Kosciusko in "great numbers to tear up the town." Their verdict of guilty, under the facts and circumstances, would indicate that the jurors were willing to do what they conceived to be their duty, notwithstanding the threats of the strikers and those who were in sympathy with them. In other words, if they were influenced by fear, they would have rendered a verdict of acquittal instead of conviction.
By consent of appellant's counsel, the motion for a new trial was heard in appellant's absence. Appellant admits this, but contends that the right to be present could not be waived; that the rights guaranteed by section 26 of the Constitution, one of which is the right of a defendant in a criminal case to be confronted by the witnesses against him, could not be waived. Section 1276, Code of 1930, provides that in criminal cases the presence of the prisoner may be waived, and the trial progress, at the discretion of the court, in his absence, if he be in custody and consenting thereto. Construing this statute in Winston v. State, 127 Miss. 477, 90 So. 177, the court held that the right could be waived in a felony case where the defendant is not shown to have been prejudiced thereby. See, also, Thomas v. State, 117 Miss. 532, 78 So. 147; Ann. Cas. 1918E, 371. There was no prejudice shown in this case.
We are of opinion that the other assignments of error are not of sufficient merit to call for a discussion.
Affirmed.