Opinion
No. 32646.
May 10, 1937.
INDICTMENT AND INFORMATION.
Conviction for attempted robbery of defendant indicted on charge of attempted burglary would be reversed, where proof introduced by state showed that offense was completed, since prosecution for attempt is improper under statute where crime is actually committed (Code 1930, sec. 794).
APPEAL from the circuit court of Warren county. HON. R.B. ANDERSON, Judge.
Harry K. Murray, of Vicksburg, for appellant.
The record in this case shows first an indictment charging the defendant in the court below with an attempt to commit a burglary; the indictment is endorsed on the back "attempted robbery;" the capias bears the charge "attempted robbery" against the defendant; the case is carried in the minutes of the court on arraignment as "attempted robbery." The instructions granted to the state embrace the offense of "burglary" and not "attempted burglary" as alleged and set forth in the indictment. The minutes of the court reciting the verdict carry the charge "attempted robbery." The sentence of the court carries the charge as "attempted robbery" and the court sentenced the defendant to serve a term of seven years in the state penitentiary for "attempted robbery." We submit this is error.
Manning v. State, 91 So. 902.
With the defendant representing himself, an ignorant negro, doing all that he could to show that he did not commit the offense with which he was charged, the court granted the following instruction to the state: "The court instructs the jury that if you believe the defendant guilty beyond every reasonable doubt, as charged in the indictment, your verdict may be in the following form: `We the jury find the defendant guilty as charged.'"
This instruction, in a similar case, where the defendant was without counsel and did not have his case presented by instructions to the jury on his side, has been condemned.
Warren v. State, 146 So. 449.
The defendant in this case, charged as he was with an attempt to commit a burglary, was tried on a burglary charge, found guilty "as charged," without the jury saying on what charge he was found guilty, and then sentenced by the court on a charge of attempted robbery.
We submit, in view of the above, that the judgment and sentence of the circuit court should be reversed and the cause remanded.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
Section 794, Code of 1930, provides that one may not be convicted of an attempt where the proof shows a completed offense.
As to the irreconcilable conflict as between the indictment, proof, instructions, verdict, and judgment, see Dees v. State, 151 Miss. 46, 117 So. 369, and Davis v. State, 164 So. 592.
Appellant was indicted on a charge of "attempted burglary." The proof introduced by the state showed that the offense was completed. The principal instruction granted at the request of the State authorized the jury to convict "if they believed from the evidence beyond every reasonable doubt, that Sam Williams did wilfully, unlawfully, feloniously and burglariously break and enter," etc. The verdict was that the defendant was guilty as charged. In the judgment the offense is described as attempted robbery.
Section 794, Code 1930, provides that "a person shall not be convicted of an assault with intent to commit a crime, or of any other attempt to commit an offense, when it shall appear that the crime intended or the offense attempted was perpetrated by such person at the time of such assault or in pursuance of such attempt." Under this section it was held in Davis v. State, 89 Miss. 21, 42 So. 542, that where a crime is actually committed, prosecution for an attempt is not proper. It is not competent under this statute to indict for an attempted offense and then stand upon proof of a completed offense. Compare Holley v. State, 175 Miss. 347, 166 So. 924.
Reversed and remanded.