Summary
In Thompson v. State, 226 Miss. 93, 95, 83 So.2d 761, 762 (1955), the defendant was convicted of assault and battery with intent to rob.
Summary of this case from Mason v. StateOpinion
No. 39866.
December 5, 1955.
1. Robbery — assault and battery with intent to rob — essential element of proof.
Failure to consummate the crime of robbery is an essential element of proof in a prosecution under an indictment charging assault and battery with intent to rob. Sec. 2018, Code 1942.
2. Statutes — assault and battery with intent to rob — crime of robbery completed — not completed.
Where there is doubt whether the crime of robbery was completed, the State may elect to prosecute for assault and battery with intent to rob, and statute prohibiting the conviction of a person for an assault with intent to commit a crime, or an attempt to commit an offense, when it appears the crime intended or attempted was perpetrated, does not cover a case wherein it is doubtful that the offense attempted was actually completed by the accused. Sec. 2018, Code 1942.
3. Robbery — assault and battery with intent to rob — conviction reversed — where robbery completed.
Where evidence showed that defendant, who had been convicted of crime of assault and battery with intent to rob, had actually completed the robbery, such conviction was contrary to statute referred to in Headnote No. 2, and conviction was reversed, but defendant was ordered held for further action of the grand jury. Sec. 2018, Code 1942.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Simpson County; HOMER CURRIE, Judge.
J.P. Edwards, Noel Buckley, Mendenhall, for appellant.
I. The Court committed reversible error in permitting the District Attorney to go into other offenses or crimes in order to prove the defendant guilty of this separate and distinct offense charged against him. Brown v. State, 72 Miss. 997, 17 So. 278; Cook v. State, 81 Miss. 146, 32 So. 312; Doss v. State, 156 Miss. 522, 126 So. 197; Hitchcock v. State, 6 So. 237; McLin v. State, 150 Miss. 159, 116 So. 533; Willoughby v. State, 154 Miss. 653, 122 So. 757.
II. The Court erred in refusing to give the following instruction: "The Court instructs the jury for the defendant that if you believe the intent of the defendant at the time of the alleged assault was to get his own property from Gus Alford that he had placed in the hands of the said Gus Alford, then you must find the defendant not guilty."
III. 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. Davis v. State, 89 Miss. 21, 42 So. 542; Williams v. State, 178 Miss. 899, 174 So. 47; Sec. 2018, Code 1942.
Wm. E. Cresswell, Asst. Atty. Gen., Jackson, for appellee.
I. Where accused becomes witness, he may be examined about his conviction of crimes, touching upon his credibility as a witness. Hegwood v. State, 206 Miss. 160, 39 So.2d 865; Smith v. State, 217 Miss. 123, 63 So.2d 557; Sec. 1693, Code 1942.
II. Where instruction omits phrase "from the evidence" after the phrase "if you believe," Trial Court properly refuses to grant same, particularly where instruction omits essential elements. Butler v. State, 83 Miss. 437, 35 So. 569; Walters v. State, 176 Miss. 790, 170 So. 539; Vol. I, Alexander's Miss. Jury Instructions, Sec. 58 p. 25.
Appellant was indicted, tried, and convicted of the crime of assault and battery with intent to rob one Gus Alford. The proof showed that the crime of robbery was completed; in fact, the defendant, testifying in his own behalf, admitted knocking Alford in the head with a heavy soft drink bottle and carrying away Alford's suitcase. The state's proof showed that appellant took from Alford money and a suitcase.
Section 2018 of the Mississippi Code of 1942 provides: "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."
(Hn 1) Since the crime of robbery was perpetrated to completion, the courts are enjoined by Section 2018 from convicting appellant of an assault and battery with intent to rob. Failure to consummate the crime of robbery is an essential element of proof in a prosecution under an indictment charging assault and battery with intent to rob. Davis v. State, 89 Miss. 21, 42 So. 542; Williams v. State, 178 Miss. 899, 174 So. 47. (Hn 2) If there had been doubt whether the crime of robbery was completed, the State could have elected to prosecute for assault and battery with intent to rob. Section 2018 does not cover a case wherein it is doubtful that the offense attempted was actually completed by the accused. Holley v. State, 175 Miss. 347, 166 So. 924. (Hn 3) But the proof in this case was conclusive that the crime of robbery was perpetrated, and the State could not elect to indict and prosecute for assault and battery with intent to rob.
The judgment is reversed and rendered here for appellant, but since the proof shows that the appellant was manifestly guilty of the crime of robbery, he is ordered held for further action of the grand jury.
Reversed and judgment rendered and appellant ordered held for further action of the grand jury.
McGehee, C.J., and Kyle, Arrington, and Ethridge, JJ., Concur.