Opinion
No. 27550.
May 13, 1929.
ROBBERY. Evidence held insufficient to sustain conviction for robbery.
Where strongest statement in record against defendant was to effect that he was in store on night of robbery about time of commission of crime or just immediately prior thereto, but there were others there also, and there was no evidence of any conspiracy between the three defendants jointly indicted, evidence held insufficient to sustain conviction of defendant for robbery.
APPEAL from circuit court of Lauderdale county, HON. J.D. FATHEREE, Judge.
Jacobson Cameron, of Meridian, for appellant.
The evidence in this case is entirely insufficient to sustain the conviction of the defendant and the court should have given a peremptory instruction to acquit.
Hagan v. State, 127 Miss. 407; Johns case, 24 Miss. 569, Morris State cases 608; Caleb's case, 39 Miss. 721, Morris State cases 1490; Algheri v. State, 25 Miss. 584; Morris State Cases 658; Taylor v. State, 108 Miss. 18.
James W. Cassedy, Jr., Assistant Attorney-General, for the state.
The fact that the robbery was committed is proven. The connection of the appellant with the robbery is the only question in the case. This is proven beyond a doubt and to the exclusion of every other reasonable hypothesis. As to what constitutes aiding and assisting in a crime, see the case of Crawford v. State, 133 Miss. 147, 97 So. 534.
The case of Hogan v. State, 90 So. 99, cited by counsel for appellant is not similar to the case at bar, and in fact, is a murder case.
Argued orally by Chas. B. Cameron, for appellant, and by James W. Cassedy, Jr., Assistant Attorney-General, for appellee.
The appellant, Nobles, was convicted in the circuit court of the crime of robbery. He was jointly indicted along with Charles Wilkerson and Louis High. It was charged in the indictment that the said parties assaulted one J.A. Evans with a piece of plank and stole certain money belonging to Evans.
Evans was a storekeeper in the city of Meridian, and the store was open on a certain night, and he was engaged in waiting on customers, and while so doing he was struck over the head, rendered unconscious for an hour or two, and upon his recovery to consciousness it was discovered that some money in the store at the time he was struck had been taken therefrom.
The appellant was tried separately. There was no evidence of any conspiracy or concert of action between the three defendants. They were shown to have been in the store just before Evans was struck; so was the witness Smith; and a negro woman left the store immediately ahead of Smith. There was no evidence upon which to base a conviction of this appellant, save the evidence that he was identified by two witnesses as having been in the store at or about the time the storekeeper was assaulted. There were material contradictions of each by the two main state witnesses as to material facts. The appellant denied being in the store, and he and his witnesses testified that he was at a birthday party, or en route thereto, in company with other witnesses, at the time of the commission of the crime. It cannot logically be deducted from the evidence, in the absence of evidence of a conspiracy, that this appellant struck the blow or was connected with the robbery beyond a reasonable doubt. The strongest statement in the record against the appellant in this case is to the effect that he was in the store on the night about the time of the commission of the crime, or just immediately prior thereto. Other persons were there also. In this state of the record we cannot permit this conviction to stand.
The instructions given in the court below indicate that the court tried the case on the theory of a conspiracy, which, as we have said, is not supported by any evidence. See Hogan v. State, 127 Miss. 407, 90 So. 99, and authorities there cited. Let the case be reversed and the appellant discharged.
Reversed, and appellant discharged.