Opinion
No. 36701.
May 10, 1948.
1. ROBBERY.
Indictment charging that defendant took a pistol from person of named woman against her will by putting her in fear of immediate injury to her person by exhibiting a deadly weapon was not demurrable (Code 1942, sec. 2367).
2. CRIMINAL LAW.
Where defendant after arraignment and plea of not guilty withdrew plea in order to file a demurrer to indictment, which was overruled, proceeding with trial thereafter without defendant being again arraigned was not error.
3. CRIMINAL LAW. Robbery.
Refusal to instruct that defendant could not be convicted of robbery by means of a deadly weapon was reversible error, where evidence on which conviction depended disclosed that defendant took pistol from person of victim by physical force and not by putting her in fear of immediate injury to her person by exhibiting a deadly weapon (Code 1942, sec. 2367).
4. ROBBERY.
Evidence that defendant took pistol from person of owner by physical force would justify conviction of robbery and hence refusal to direct a verdict of not guilty in prosecution for robbery by means of a deadly weapon was not error (Code 1942, secs. 2362, 2367).
APPEAL from the Circuit Court of Sunflower County.
B.B. Allen, of Indianola, for appellant.
The indictment does not charge with completeness and clarity any single crime, but charged more than one crime; the indictment did not inform the defendant of the nature and cause of the accusation against him.
Code of 1942, Secs. 2011, 2013, 2240, 2362, 2363, 2367, 2406, 2560; Constitution of 1890, Sec. 26; United States Constitution, Art. 6.
The indictment was duplicitous.
Montgomery v. State, 107 Miss. 518, 65 So. 572, 574; McGraw v. State, 157 Miss. 675, 128 So. 875, 876; Norwood v. State, 182 Miss. 898, 183 So. 523, 524; Skinner v. State, 198 Miss. 505, 23 So.2d 501, 502.
The defendant was put to trial without being re-arraigned. In the trial of a capital case the defendant may not waive such a vital thing as his arraignment.
Chase v. State, 75 Miss. 502, 22 So. 828; Cain v. United States, 162 U.S. 625, 16 S.Ct. 952, 40 L.Ed. 1097.
The court erred in overruling the motion of defendant to exclude all of the evidence offered on behalf of the State and to discharge the defendant and in refusing to instruct the jury that the defendant was not guilty of armed robbery, within the purview of Section 6267 of the Code of 1942.
The right of cross-examination exists and witness may be asked anything at issue in the case whether the matter was covered in examination in chief or not, but it is otherwise, though, if the examination is stopped by the judge before any material question has been put, or if examination is prevented by objections of the opposite party.
Manning v. State, 188 Miss. 393, 195 So. 319, 320; Williams v. State, 73 Miss. 820, 19 So. 826; Roney v. State, 167 Miss. 532, 142 So. 475, 477; White v. State, 202 Miss. 246, 30 So.2d 894; King v. State, 66 Miss. 502, 6 So. 188, 189; Bailey v. State, 67 Miss. 333, 7 So. 348; State v. Carter (La.), 25 So. 385, 386; Code of 1942, Secs. 1692, 1693; 28 R.C.L. 600, Sec. 190, p. 604, Sec. 194, p. 606, Sec. 196, p. 624, Sec. 212, p. 626, Sec. 213; 70 C.J. 615, Sec. 781, p. 616, Sec. 782, p. 622, Sec. 795, p. 626, Sec. 796, p. 653, Sec. 818.
Where there are several offenses for either of which accused may be convicted under indictment, prosecution should elect the offense which it will pursue and testimony should be confined to that offense unless the case is within some exception which renders proof of other distinct offenses admissible.
Skinner v. State, supra.
Error was committed by the court in granting and in refusing certain instructions.
Fortenberry v. State, 190 Miss. 729, 1 So.2d 585; Upton v. State, 143 Miss. 1, 108 So. 287; Ellis v. State (Miss.), 33 So.2d 838; Morris v. United States, 156 F.2d 305.
The improper closing argument of Mr. Forman, special counsel for the State, was unfair and obnoxious and prejudicial to the defendant.
Augustine v. State, 201 Miss. 277, 28 So.2d 243.
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
The indictment is awkwardly worded and falls short of being a perfect example of legal workmanship; at the same time, however, it contains every essential averment under the statute, and the course of the trial, including the requests for instructions on the part of appellant, shows that appellant was throughout the trial fully aware that he was being prosecuted under the new enactment.
Hall v. State, 166 Miss. 331, 148 So. 793; State v. Ingram, 166 Miss. 543, 146 So. 638.
An arraignment is not jurisdictional and may be waived by the defendant, and is waived when he takes part in the trial without objection as to the arraignment.
Thomas v. State, 200 Miss. 220, 26 So.2d 469.
The evidence was sufficient to support the verdict of armed robbery.
Littrell v. State (Miss.), 19 So.2d 438; Turner v. State, 177 Miss. 272, 171 So. 21; King v. State, 185 Miss. 433, 188 So. 554; Code of 1942, Sec. 2367.
When a witness is introduced on the stand, it is for the purpose of telling the whole truth of the matter relevant to the issue; and his whole testimony, whether given in response to interrogatories propounded by the party introducing him, or the other, is the testimony of the former; and hence the right of cross-examination, being allowed for the purpose of eliciting the whole truth from the witness, is not restricted to what the witness has testified to in his direct examination, but extends to every matter relevant to the issue.
Mask v. State, 32 Miss. 405; Walton v. State, 87 Miss. 296, 39 So. 689; Steele et al. v. State, 76 Miss. 387, 24 So. 910; Robinson v. State; 146 Miss. 753, 112 So. 167.
Under the evidence the court committed no error in granting or refusing to grant instructions.
Ellis v. State (Miss.), 33 So.2d 838.
The argument of Mr. Forman, special counsel for the State, was not improper.
Hartfield v. State, 186 Miss. 75, 189 So. 530.
Before this Court will reverse a cause, it must be satisfied of two facts: First, there must be error, and, second, the error must be prejudicial to the appellant.
Wexler v. State, 167 Miss. 464, 142 So. 501.
The appellant was convicted under Section 2367, Code of 1942, on an indictment charging him with taking a pistol from the person of Mrs. J.W. Lusk against her will by putting her in fear of immediate injury to her person by the exhibition of a deadly weapon, and was sentenced to electrocution. He was arraigned and plead not guilty, but withdrew his plea in order to file a demurrer to the indictment. The demurrer was overruled, and the trial was proceeded with without his being again arraigned. No error was committed by the court below in overruling this demurrer or in not again arraigning the appellant.
Several other very serious questions are presented by the appellant's assignment of errors, one of which is that after having taken the stand as a witness, the appellant said he had no statement to make and gave no testimony, but over his objection the court permitted him to be cross-examined at length by the District Attorney, which examination disclosed, among other things, that he had been formerly convited of murder.
It will not be necessary for us to decide this and other questions raised by the appellant, except the two hereinafter set forth, for the judgment of the court below must be reversed, as will hereinafter appear, and it is hardly probable that these pretermitted questions will arise when the appellant is tried again.
Two of the appellant's complaints are that the court below erred in not granting him an instruction to the effect that he could not be convicted of robbery by means of a deadly weapon, and in not instructing the jury to find him not guilty.
The appellant was a servant of Dr. and Mrs. J.W. Lusk and lived on their premises. On the occasion in question, Dr. Lusk was absent from home and Mrs. Lusk, a grown daughter, and her mother were in the house, each of them having separate rooms. Mrs. Lusk's room opened on a back porch, and the head of her bed was near the door thereto, by the side of which was a table or desk on which lay a pistol belonging to her. The appellant's conviction depends on the testimony of Mrs. Lusk who said that about 2 o'clock that night she heard a creaking on the back porch as if some one was trying to tip on the floor. "It startled me when I realized it wasn't anybody else in the family. I jumped up in the bed and it was not dark and I could see J.B. standing with the gun right on me. I jumped up and said, `J.B., what in the world are you doing here?' I was in the dark and he was and I turned on the light and grabbed for my gun and he jumped in and took the pistol away from me there. The telephone was right there and the only thing I could do was ring the telephone and he said, `Miss, don't scream and I won't shoot you.' I did scream loud and I began ringing the telephone and he began backing off and he backed out to the porch."
The appellant carried the pistol away with him and had it when he was arrested the next afternoon. The evidence discloses that the pistol was not obtained from Mrs. Lusk by putting her in fear of immediate injury to her person by the exhibition of a deadly weapon. While the weapon was exhibited, Mrs. Lusk did not surrender the pistol because thereof, and nothing was said by the appellant indicating that he would use the pistol if she did not turn the one she had over to him. What he did was to take the pistol away from Mrs. Lusk by physical force — by jerking it out of her hand. Consequently, the court erred in not granting the appellant's instruction that he could not be convicted of robbery by means of a deadly weapon. The evidence, however, would justify the appellant's conviction under Section 2362, Code of 1942. Consequently, the court below committed no error in refusing his request for an instruction directing the Jury to find him not guilty.
Reversed and remanded.