Herron v. State

• Decision Date: 09 November 1936
• Docket Number: 32431
• Citation: 170 So. 536,176 Miss. 795
• Court: Mississippi Supreme Court
• Parties: HERRON v. STATE

170 So. 536

176 Miss. 795

HERRON v. STATE

No. 32431

Supreme Court of Mississippi

November 9, 1936

Division B

1 ROBBERY.

Indictment charging accused "did feloniously rob, steal, take and carry away" a mare sufficiently alleged, by import intent to steal, words "rob" or "robbery" importing an intent to steal.

2 ROBBERY.

In prosecution for stealing mare, evidence held sufficient to sustain conviction of robbery.

3. ROBBERY.

Evidence that possession of mare was held under pledge for payment of fifty dollars on mule, and that fifty dollars had not been paid at time mare was taken, showed such title in possessor as would make taking of mare a robbery.

4. ROBBERY.

Evidence held sufficient to prove possessor was absolute owner of mare so as to make taking from possessor the crime of robbery.

HON. THOS. H. JOHNSTON, Judge.

APPEAL from the circuit court of Pontotoc county, HON. THO S. H. JOHNSTON, Judge.

Lehman Herron was convicted of robbery, and he appeals. Affirmed.

Affirmed.

Byrd P. Mauldin, of Pontotoc, for appellant.

The facts did not make out a charge of robbery under the law, and the jury found against the law and the evidence, and the verdict should be set aside.

The appellant urges that the trial judge should have granted the motion for peremptory instruction in the trial below. That the state has completely failed to show by its proof any intent to steal on the part of the appellant. That intent to steal is the necessary element of the crime of robbery. That the word "rob" or "robbery" has a well defined meaning, and imports the intent to steal.

Baygents v. State, 122 So. 187; Jones v. State, 120 So. 199; McCray v. State, 121 So. 291.

It is well settled that one cannot be guilty of robbery by taking his own specific property from the possession of another, although file taking may be accomplished under such circumstances as would amount to robbery if the property belonged to the person from whom it was taken.

Temple v. State, 86 Tex. Cr. 219, 215 S.W. 965; 54 C. J. 1014.

If there be a fair bona fide claim of property or right in the prisoner, the offense amounts to a trespass.

8 S. & M. 401.

The proposition in this case is, did the appellant have a right to take the specific property that belonged to him, which he had given his permission to pledge ? Did he have a right to protect the property under the circumstances that he may use force to get or regain possession of same without being guilty of robbery. We submit that the defendant, at the most, was only guilty of trespass, and not guilty of robbery.

Fannin v. State, 123 A. S. R. 874.

Webb M. Mize, Assistant Attorney-General, for the state.

The jury did not find against the law and evidence.

People v. Anderson, 80 Cal. 205, 22 P. 139.

On the facts as set out in the record, the verdict of the jury was not contrary to the evidence.

Thomas v. State, 165 Miss. 897, 148 So. 225.

The evidence and the proof was sufficient.

Thomas v. State, 165 Miss. 897, 148 So. 225; Webster v. State, 146 Miss. 682, 111 So. 749.

Appellant objects to one of the instructions and says that it does not charge an intent to steal. Under the case of Baygents v. State, 122 So. 187, which is relied on here by appellant, the instruction is correct. This case holds that the word "rob" or "robbery" imports an intent to steal and the court further held that an instruction in a robbery prosecution, which authorized a conviction upon the evidence which the jury believed beyond a reasonable doubt that defendant feloniously and violently did rob the person named in the indictment that the word "rob" imported intent to steal and failure to otherwise state intent necessary to constitute crime charged was not error.

OPINION

Ethridge, P. J.

Appellant, Lehman Herron, was indicted in the circuit court of Pontotoc county on a charge of robbery, tried and convicted and sentenced to serve three years in the state penitentiary, from which this appeal is prosecuted. The indictment alleged that "Lehman Herron, late of the county aforesaid on the 16th day of September, 1935, with force and arms in the county aforesaid, and within the jurisdiction of this court, in and upon one Frank Kincade, did unlawfully and feloniously make and assault and him, the said Frank Kincade, did then and there feloniously put in fear of some immediate and injury to his person, and in the presence and from the person of the said Frank Kincade and against his will did feloniously rob, steal, take and carry away one two year old mare horse, of the value of Fifty Dollars in good and lawful money of the United States, the personal property of Charlie Morris, contrary to the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi."

It appears that Charlie Morris made a trade with Tom Herron, father of appellant, to sell him a mule, taking as part payment thereof the mare mentioned in the indictment for a fifty dollar cash payment, and a note for the balance. The mare was left with Morris, and he and Kincade were taking it to a place for breeding purposes when they were accosted by Tom Herron and appellant, and both objected to the mare being bred on the ground that she was too young. Morris and Kincade, who was in charge of the mare for Morris, started toward Morris' home and reached a blacksmith shop when the appellant came and demanded the mare. Kincade refused said demand, and was proceeding on his journey when he was commanded, at least twice, to halt, which he did, and, when appellant came to where Kincaid was, according to his testimony, appellant drew a pistol on him and took the mare from him against Ms wilt and consent, and because of the drawing of the weapon. The appellant then started back in the direction of his home, and, in passing the place where Morris was, he objected to the taking of the mare, but stated he was helpless, and that he would have to resort to the law. The appellant took the mare to his home, and the same morning brought back the mule they had procured from Morris, which he refused to receive. Thereafter Morris died, but it appears that, prior to his death, he had repossessed the mare through legal proceedings, and had sold it to another party.

The wife of Morris testified that she was present when the trade was made, and that the mare was given as part payment, representing fifty dollars, for the mule; that she was not present when the note for the balance was signed, but heard the trade, and a person who drew up the note for the balance, at the request of Tom Herron, signed his name thereto. There were other witnesses who stated the facts, except as to the Ownership of the mare and the exhibiting of the weapon, these witnesses stating that they did not see a pistol, and did not know whether the appellant had a pistol, because the mare was between the witnesses and the defendant.

Tom Herron testified that the appellant authorized him to trade the mare, giving it as security for a fifty dollar cash payment until a loan check which he was expecting from the government should arrive, and that the check had not arrived at the date of the transaction.

The...