James v. State

• Citation: 215 Tenn. 221,385 S.W.2d 86,19 McCanless 221
• Parties: , 215 Tenn. 221 Tony Anthony JAMES, alias, and Dallas L. Stooksbury, Plaintiffs in Error, v. STATE of Tennessee, Defendant in Error.
• Decision Date: 12 November 1964
• Court: Tennessee Supreme Court

Page 86

385 S.W.2d 86

19 McCanless 221, 215 Tenn. 221

Tony Anthony JAMES, alias, and Dallas L. Stooksbury, Plaintiffs in Error, v. STATE of Tennessee, Defendant in Error.

Supreme Court of Tennessee.

Nov. 12, 1964.

Rehearing Denied Dec. 11, 1964.

Earl E. Leming, Knoxville, for plaintiffs in error.

George F. McCanless, Atty. Gen., Thomas E. Fox, Asst. Atty. Gen., Nashville, for defendant in error.

WHITE, Justice.

The plaintiffs in error were indicted, tried and convicted upon an indictment containing two counts; count one being a charge of assault and simple robbery, and count two being a charge of assault with a deadly weapon and robbery.

The jury found 'each defendant not guilty as to robbery and larceny from the person and find each guilty of assault and battery.' The plaintiffs in error, defendants below, filed a motion for a new trial in which they contended that assault and battery is not a necessary included offense under the counts of the indictment. The motion for a new trial was overruled. The defendants appealed in error to this Court and rely upon one single assignment, viz:

'The trial court erred in charging the jury that if it should find the defendants not guilty of robbery, the jury would proceed to determine whether or not they are guilty of an assault and battery, a misdemeanor, which is also included in this indictment.'

The bill of exceptions contains only the instructions to the jury by the trial judge and in these instructions he said:

In the event you find them not guilty of any of the foregoing felonies, you will proceed to determine whether or not they are guilty of assault and battery, a misdemeanor, which is also included in this indictment.

Thus, we are faced with the sole question of whether or not assault and battery is a lesser included offense in the general offense of robbery as it is defined in T.C.A. § 39-3901, to-wit:

'* * * the felonious and forcible taking from the person of another, goods or money of any value, by violence or putting the person in fear.'

We have been unable to find any case holding that assault and battery is a lesser included offense in an indictment for robbery, but it seems axiomatic that the commission of robbery (which is defined as taking property from another person by violence or putting him in fear), would necessarily include the lesser offense of assault and battery. We do not see how it could be otherwise.

Our statute provides that robbery is committed either by means of violence or by fear. In many robberies both violence (force) and fear are present, but only one of these elements is necessary, either being sufficient to constitute the crime.

One may be struck down by an assailant whom the victim does not hear or see, and may then be robbed while unconscious. There is violence in such a case but no putting in fear. Also, one may hand over his money to a robber who is causing fear of death or great bodily harm by mere oral threats. This is, likewise, robbery although no actual violence or physical force is used, for robbery may be committed without search of clothing or touching the person in the possession of the property. 2 Burdick, Law of Crime, § 559 (1946).

We are of the opinion that the words of the statute 'putting the person in fear' must be construed so as to include an assault as a lesser included offense of robbery. Similarly, the term 'by violence' is construed as to include a battery as a lesser included offense of robbery. Thus, we think that the trial judge correctly charged the jury as to assault and battery under the indictment.

While it is universally held that an assault is a lesser included offense of robbery, we are not unmindful that there is some confusion and disagreement among the jurisdictions as to including a battery as a lesser offense in a general indictment of robbery.

Those jurisdictions, which hold a battery is not an included offense under an indictment of robbery do so on the grounds that a robbery may take place without the slightest touching of the person. As a battery is defined as the 'wrongful or offensive touching' then, a priori, a battery is not a lesser included offense of robbery. People v. Romero, 62 Cal.App.2d 116, 144 P.2d 411 (1943); People v. Driscoll, 53 Cal.App.2d 590, 128 P.2d 382 (1942).

It is our opinion, however, that our robbery statute is intended to be applied in an alternative fashion, that is, a taking of goods either by violence or by putting the person in fear. The term 'violence' under the common law definition of robbery is sufficiently broad to include or, in fact, is synonymous with battery. 2 Bishop, Criminal Law, § 1166 (9th ed. 1923). The dual nature of the statute commands the inclusion of both an assault and a battery as a lesser offense under an indictment for robbery.

In the case sub judice, we are dealing with an indictment using similar language, i. e.:

* * * did * * * feloniously and by force and by violence and by putting the said (victim) in fear, rob, steal * * *.

In the case of Hazlett v. State, 229 Ind. 577, 99 N.E.2d 743 (1951), the affidavit or indictment charged that the defendant 'unlawfully, feloniously, and forcibly and by violence' did take the amount of $5.00 from the person of another. It was held that the words of the affidavit 'forcibly and by violence' charged a battery and an assault which was included within the charge of battery.

In Watkins v. Commonwealth, 287 S.W.2d 416, 58 A.L.R.2d 804 (Ky.1956), it was held that the defendants, being prosecuted for robbery, were entitled to an instruction on the lesser offense of assault and battery, which the jury would be justified in believing took place independently of the alleged robbery. For failure to give this instruction the judgment was reversed. In the words of the court:

'We have no fixed rule with respect to when this instruction should or should not be given. It has been held that common assault and battery is a degree of the crime of assault with intent to rob. Abner v. Commonwealth, 210 Ky. 536, 276 S.W. 513. The theory that such an offense is a degree of the crime has been carried over into our robbery and armed robbery cases.' 287 S.W.2d at 418.

In Alabama case, Robertson v. State, 24 Ala.App. 237, 133 So. 742 (1931), also held that under an indictment for robbery, there may be a conviction for assault with intent to rob, for larceny, for attempt to rob, for assault, or for assault and battery, citing the following cases as authority: Rambo v. State, 134 Ala. 71, 32 So. 650; Morris v. State, 97 Ala. 82, 12 So. 276; Carnathan v. State, 18 Ala.App. 452, 93 So. 50; Thomas v. State, 91 Ala. 34, 9 So. 81.

Lastly, in the case of People v. Allie, 216 Mich. 133, 184 N.W. 423 (1921), it was held that in a prosecution for robbery where statute provided that a jury might convict of any degree inferior to that charged, or of an attempt to commit such offense, the defendant had a right to have the jury instructed that he could be convicted of an attempt to commit robbery or assault and battery. The court said:

'This court has held specifically that one charged with robbery may be convicted of an assault with intent to rob. People v. Blanchard, 136 Mich. 148, 98 N.W. 983. And the rule elsewhere appears to be that he may be convicted of assault and battery.' 184 N.W. at 424.

Relying upon the above authority we, therefore, overrule all assignments charging error on the part of the trial judge in instructing the jury on assault and battery under an indictment for robbery.

This does not mean, however, that the trial judge must instruct the jury on the said lesser offense in every indictment for robbery. The holding of this Court is that the trial judge shall so instruct the...