Opinion
03-12-1936
STATE v. LYONS.
C. Edward Duffy, Deputy Atty. Gen, for State. Clair J. Killoran, of Wilmington, for defendant.
James Lyons was indicted for assault with intent to rob, and he moved for binding instructions.
Motion for binding instructions denied.
SPEAKMAN, J., sitting.
C. Edward Duffy, Deputy Atty. Gen, for State.
Clair J. Killoran, of Wilmington, for defendant.
Court of General Sessions for New Castle County. Indictment for assault with intent to rob, No. 46, November Term, 1935.
The State introduced evidence to show that on October 25, 1935, at about eleven-fifteen o'clock, P. M, the prosecuting witness, Rudnick, was alone in his store at Tenth and Adams Streets, in Wilmington, when the defendant and another entered the store; that there was in the store at the time personal property belonging to the prosecuting witness; that neither man was known to the prosecuting witness; that the defendant's companion asked Rudnick for a box of cough drops; that the cough drops were on the other side of the store from where Rudnick was standing; that Rudnick walked over and picked up a box of cough drops and was about to turn around when he was hit in the back of the head with a black-jack by the defendant; that the blow stunned the prosecuting witness and caused him to stoop over; that, instead of straightening himself up immediately, he swung his body to his left and raised up, when the companion of the defendant struck him with something on the side of his head, whereupon the prosecuting witness grabbed the defendant's companion, the two engaging in a tussle until they reached the door of the store; that during the tussle, the defendant ran from the store, following which his companion broke loose from the prosecutingwitness and fled; that two days later the defendant was arrested in another section of the city.
After the State rested, the defendant moved that the jury be given binding instructions to return a verdict of not guilty for the reason that the evidence on the part of the State did not show any intent or attempt to rob.
SPEAKMAN, Judge.
Under the evidence in the case, the Court would not be justified at this time in directing a verdict for the defendant. The defendant may, of course, renew his application at the close of the testimony, if he desires.
The defense was an alibi.
At the conclusion of the testimony in the case, the defendant renewed his motion for binding instructions to the jury on the same ground as before stated; citing Brill's Ency. of Crim. Law, Vol. 1, § 94, pp. 184, 185 and 186; State v. Tate, 145 Mo. 667, 47 S.W. 792; Garritv v. People, 70 Ill. 83; State v. Hanson, 49 Mont. 361, 141 P. 669.
In reply, Mr. Duffy contended that there was sufficient evidence which would warrant the jury in finding that the assault was made with the intent to rob; citing State v. Eaton, 3 Har. 554; Brill's Ency. of Crim. Law, § 413, p. 698; 54 C.J., pp. 1094 and 1095; State v. Iacavone, 85 N.H. 207, 155 A. 701; Burk v. State, 22 Ala.App. 107, 114 So. 71; State v. Simon, 317 Mo. 336, 295 S.W. 1076; Tyson v. U. S., 7 Okl.Cr. 433, 122 P. 733; People v. Franklin, 46 Cal. App. 1, 188 P. 607; Hernandez v. State, 60 Tex.Cr.R. 382, 131 S.W. 1091, at page 1092.
SPEAKMAN, Judge.
A specific intent to rob might be inferredby the jury, as a matter of fact, from the circumstances of the case. The motion for binding instructions to the jury is denied on the authority of State v. Eaton, 3 Har. 554.