Brady v. State

• Decision Date: 10 April 1922
• Docket Number: 22365
• Citation: 91 So. 277,128 Miss. 575
• Court: Mississippi Supreme Court
• Parties: BRADY v. STATE

91 So. 277

128 Miss. 575

BRADY v. STATE

No. 22365

Supreme Court of Mississippi

April 10, 1922

1. CRIMINAL LAW. Indictment and information. Where statute makes punishable the doing of several acts, doing all in one transaction violates the act but once; an indictment may allege defendant did all, employing the conjunction "and" where the statute has "or."

Where a statute makes punishable the doing of one thing or another thus specifying a number of things, then by proper and ordinary construction a person who in one transaction does all violates the statute but once and incurs but one penalty. An indictment on such a statute may allege, in a single count, that the defendant did all of the forbidden things employing the conjunction "and" where the statute has "or" and it will not be double, and is not subject to demurrer.

2. CRIMINAL LAW. Evidence held to establish venue in county of trial.

Where a crime is alleged to have been committed in the second judicial district of the county, and the testimony to prove the venue is as follows: "Q. Where did that take place (referring to the alleged robbery)? A. Terrapin Bridge. Q. Is that in Jones county? A. Yes. Q. Second district, state of Mississippi? A. Yes"---the context the venue was proven in the Second district of this county.

3. CRIMINAL LAW. Instruction that of two theories, the jury should take that favoring defendant although other is more reasonable and supported by strongest evidence, held properly refused.

It was not error to refuse the following instruction asked by the defendant: "The court instructs the jury that, if there are two reasonable theories arising out of the evidence of this case, one favorable to the state and the other favorable to the defendant, it is the duty of the jury to accept the one favorable to the defendant, although the one favorable to the state is the more reasonable and supported by the strongest evidence." The giving of this instruction has been disapproved by this court.

HON. R S. HALL, Judge.

APPEAL from circuit court of Jones county, HON. R. S. HALL, Judge.

Vernon Brady was convicted of robbery, and he appeals. Affirmed.

Judgment affirmed.

W. J. Pack and J. A. McFarland, for appellant.

We submit that the indictment attempts to charge both forms of robbery and charges them both in the same count. In furtherance of the same error that we now complain of, when the proof was in, the court gave an instruction to the state, marked number one, telling the jury substantially, that if they believed beyond a reasonable doubt that the robbery consisted of either one or the other form, they should find the defendant guilty. It was error for the court to grant this instruction in the light of the testimony in the indictment, upon which the prosecution rested. State of Mississippi v. James Presley, 91 Miss. 377, 44 So. 827.

The court erred in refusing to appellant, instruction marked refused number two, which reads as follows: "The court instructs the jury that, if there are two reasonable theories arising out of the evidence of this case, one favorable to the state and the other favorable to the defendant, it is the duty of the jury to accept the one favorable to the defendant, although the one favorable to the state is the more reasonable and supported by the stronger evidence."

Until this court expressly overrules the case of Thompson v. State, 83 Miss. 287, holding that it was error for the court to refuse this instruction, the bar will continue to invoke the rule there laid down. We are urging this point with Runnels v. State, 50 So. 499; Roux v. City of Gulfport, 52 So. 485, and Saucier v. State, 59 So. 858, before us, but we submit that no one of these cases expressly overrules the Thompson case. In Runnels' case, the court held that the Thompson case was properly decided, "independent of what view the court may have taken of this particular instruction."

In the Roux case, this court through commissioner MCLAIN said in speaking of this instruction. "This instruction in substance is the same charge that was condemned by this court in the case of Runnels v. The State." But a reading of the Runnels case clearly shows it was not condemned. In the Saucier case supra, Judge REED in one short paragraph of his opinion stated that the court did not err in refusing this instruction, referring to the Thompson case, but did not overrule it.

The reason given in the Runnels case, namely, that the defendant had the benefit of several instructions that gave him the benefit of every reasonable doubt, and was therefore not entitled to the principle of law invoked by the instruction as to the presumption of innocence, is in conflict' we respectfully submit, with Gentry v. State, 66 So. 982, citing Jones' Blue Book on Evidence, section 12B and quoting from Lord GILLIS, in McKinley's case, 33 How. State Trials.

If I read these decisions aright, the Runnels case meant to hold that because defendant received ample instructions on the reasonable doubt theory, he was therefore not entitled, or at least it would not be reversible error to refuse an instruction on the presumption of innocence, whereas, the Gentry case holds that although the defendant has the benefit of the reasonable doubt theory announced to the jury, he is still entitled to an instruction as to the presumption of innocence, and that it will be reversible error to refuse it. We therefore respectfully submit that the Thompson case, supra, should be followed and if not followed it should be overruled.

Wherefore, because of the reasons set forth herein, we earnestly insist that this case should be reversed and remanded for a new trial.

A. Shipman, for appellant.

The indictment is bad for duplicity. The statute, section 1361, Code 1906, Hemingway's Code, section 1907, defines the offense of robbery as follows:

"Every person who shall feloniously take the personal property of another in his presence, or from his person, and against his will, by violence, to his person, or by putting such person in fear of some immediate injury to his person, shall be guilty of robbery. The indictment charges: 'That Vernon Brady . . . in and upon one Wesley Hopkins feloniously, did make an assault and him, the said Wesley Hopkins, did then and there feloniously put in bodily fear of immediate injury to his person, and ten dollars and forty cents . . . of the property of the said Wesley Hopkins, and one pocketknife of the value of one dollar and fifty cents, of the property of the said Wesley Hopkins, from the person and against the will of the said Wesley Hopkins, then and there feloniously and violently did take, steal and carry away, against the peace,' etc. The offense of robbery in this statute is a statutory crime, and the language of the statute should be strictly pursued." Smith v. State, 82 Miss. 793.

The statute is in the disjunctive: 1st. In the presence of the person robbed; or 2nd. From his person; in either case against his will by violence to his person; or 3rd. By putting him in fear of some immediate injury to his person.

The indictment in this case attempts to charge two of the three different forms of robbery in a single count. Citing State v. Braderick, 59 Mo. 318; State v. Stinson, 124 Mo. 447; Cromwell v. State, 149 Mo. 391, 50 S.W. 893; Smith, v. State, 82 Miss. 793; Webb v. State, 99 Miss. 545. 2nd. There was no proof of the venue as laid in the indictment. The proof of the venue must be proved, as laid in the indictment. Cagle v. State, 106 Miss. 370, 63 So. 672; Quillen v. State, 106 Miss. 831, 64 So. 831.

There are two judicial districts in Jones county, the indictment lays the crime as having been committed in the second district. The only proof of venue attempted by the state is shown at page 4 of the record. We adopt the argument of our associate as our own and the authorities cited by them. Pollard v. State, 53 Miss. 410.

The defendant is never required in any phase of a criminal trial to prove his defense to the satisfaction of the jury. It is sufficiently established, if, upon a consideration of all the evidence, there should be engendered a reasonable doubt of the guilt of the accused. Dawson v. State, 62 Miss. 241, citing numerous authorities.

Wherefore, for the manifest errors set out, as well as the peculiar and exceptional circumstances surrounding this case, the tremendous consequence to the appellant involved, we most respectfully submit that your honors will reverse the case and grant appellant a new trial, in which he may have the benefit of all his legal rights, and of such evidence as he was unable to command upon his trial in the first instance.

D. C. Enochs, assistant attorney-general, for the state.

The first complaint of the appellant is that venue was not proven by the state in this case. Appellant admits that the crime was proven to have been committed in Jones county, and in the state of Mississippi. But he says it was not proved that the crime was committed in the second judicial district of Jones county, but in the second district of Mississippi. He says there are a great many second districts, of Mississippi, and that what they are in reference to any particular subject, depends upon the subject.

Now, when we consider the subject inquired about by the district attorney when he interrogated Mr. Hopkins in reference to the place the crime was committed, it is clear to my mind that venue was proven. It is is true the district attorney does not say second judicial district, but that is clearly understood when the subject-matter is considered. It is inescapable that the district inquired about was the second judicial district of Jones county and it is inescapable that by the questions and answers the venue was proven.

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