Fortenberry v. State

• Decision Date: 14 April 1941
• Docket Number: 34451.
• Court: Mississippi Supreme Court
• Parties: FORTENBERRY et al. v. STATE.

1 So.2d 585

190 Miss. 729

FORTENBERRY et al. v. STATE.

No. 34451.

Supreme Court of Mississippi

April 14, 1941

G Q. Whitfield, of Jackson, for appellants.

Greek L. Rice, Atty. Gen., and A. M. Byrd, Asst. Atty. Gen., for appellee.

GRIFFITH Justice.

A sufficient statement of the facts, composed by taking the testimony of the prosecuting witness as true and supplementing it with those portions of the testimony in behalf of the defendants which are undisputed, is as follows:

A young negro named John T. Alexander was whipped by some white men on the morning of July 3, 1940. The report of this occurrence reached his mother and other relatives who lived in McComb, about twelve miles distant. A party of five or six negroes who were relatives of the boy, or close friends, departed that afternoon in two automobiles from McComb to go in search of the whipped boy and to bring him at once to McComb. Of these the two defendants in the present case were armed with pistols. They went first to the home of Frank Morris, an uncle of the boy with whom he lived, but not finding him there, they went to another place in the search but still not finding him they returned to the Frank Morris house, and upon their arrival the boy was there.

Frank Morris was a tenant of Gatlin, a white man. About ten minutes after the negroes had found the boy at Frank Morris' house, which was shortly before sundown, Gatlin was walking along the road about 150 yards from the Morris house, and he heard some profanity, loud enough to be heard also by the women of the neighborhood. Gatlin knew of the whipping although he had taken no part therein. When he heard the cursing he decided to go to the Morris house for the purpose, as he says, of making the parties get off his place. As he approached, he had one hand in his pocket and when about thirty or forty feet from the porch, he noticed that everything had become quiet, whereupon he called out to know "where them damn bad negroes were". Two of them, the defendants here, answered and one came from behind one of the automobiles, and the other from a hedge, with pistols presented, and warned Gatlin to approach no farther. Gatlin still had his hand in his pocket and one of the defendants grasped his arm, forced his hand from his pocket, and when they saw that he had a large closed knife in his hand, one of them snatched it from him. One or both of them then, or about the same time, hit Gatlin over the head with a pistol or pistols, and while he was prostrate in a dazed condition, one or the other quickly searched through his pockets, but finding no other arms upon Gatlin, all the negroes forthwith took to their cars, carrying the whipped boy with them, and proceeded at once to McComb. Gatlin in a little while made his way to a country store about 250 yards distant, and after being there for a time, not precisely disclosed by the record, he found that two dollars which he had had in his pockets was missing.

The defendants were indicted, charged with robbery with deadly weapons; were convicted and sentenced to death, hence this appeal.

Following upon the descent of the nation-wide financial depression, one of the effects of which was a marked increase in the crimes of larceny, robbery, and burglary, and with the advent of the automobile everywhere and the construction of improved highways, one of the criminal developments which had thrust itself, perhaps above all others, upon public attention in this State, as well as elsewhere, was the robbery of banks, mercantile establishments, filling stations and the like, by those who had taken to banditry as a business, or who for the time being had copied the crucial characteristics of that course, and suddenly appearing and thereafter hastily escaping, would use deadly weapons in enforcing their purpose and who were so intently predetermined upon the accomplishment of that purpose that they would kill in its execution and would kill also in making their escape.

This was the situation when the Legislature convened in 1932, and it was to meet this aggravated development then becoming frequent rather than of occasional occurrence that Chapter 328, Laws 1932 was enacted. See Hall v. State, 166 Miss. 331, 148 So. 793. The new statute is as follows:

"An Act to make robbery a capital offense under certain conditions and to fix the penalty upon conviction for a violation of this act.

Section 1. Be it enacted by the Legislature of the State of Mississippi, That every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery and, upon conviction, shall be punished by death if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at death, the court shall fix the penalty at imprisonment in the penitentiary for any term not less than three years.

Sec. 2. The passage of this Act shall not be held to repeal any existing criminal statute of the State."

The old statute, not repealed, which had been in existence for a hundred years, and which in fact is a statutory definition of the common-law offense, is 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." Section 1126, Code 1930.

The question here for determination is whether the facts, as stated, bring the case now before us within the purview of the new statute.

In considering the meaning and effect of a new and supplemental enactment, which by an express provision disclaims the purpose to repeal any existing law, there is, more than in the ordinary case, the duty of the court to take into...