Kemp v. State
| Decision Date | 21 January 1907 |
| Citation | 42 So. 606,89 Miss. 445 |
| Court | Mississippi Supreme Court |
| Parties | ROBERT KEMP v. STATE OF MISSISSIPPI |
November 1906
From the circuit court of Harrison county, HON. WILLIAM H. HARDY Judge.
Kemp the appellant, was indicted and tried for robbery, convicted for grand larceny, and sentenced to the penitentiary for five years. From such conviction and sentence he appealed to the supreme court.
There were three counts to the indictment. The first charged robbery as defined by statute, the second robbery as at common law, and the third robbery by means of intimidation each charged that appellant by violent means robbed one Purl of a gold watch and chain, $ 35 in cash and a pocket knife. The proof showed that Purl, being intoxicated, left a designated resort in Gulfport during the nighttime in a buggy with the appellant and one Goza; that the appellant drove the vehicle to an unfrequented part of the city where Purl was assaulted and evidently robbed of the property mentioned by appellant and Goza. And they also took from him his hand satchel containing a few articles of clothing. How the hand satchel was taken was a matter of dispute, the testimony tending to show that it was secured by fraud rather than by violence. All testimony relating to the hand satchel was objected to by appellant because it was not mentioned in the indictment, but the court declined to exclude the same. The state, in addition to instructions defining robbery, obtained an instruction to the effect that if appellant feloniously took the property in question from Purl by stealth or fraud with intent to steal the same, appellant was guilty of larceny. The jury found appellant guilty, not of robbery, but of larceny. The opinion further states the case.
Reversed and remanded.
W. H. Maybin, for appellant.
Under the facts appellant could not legally be found guilty of larceny. The proof showed an outrageous robbery, if the testimony offered by the state be true, but there was no evidence on which to base a finding of larceny. An examination of the evidence will disclose that the entire theory of the state was that appellant was guilty of robbery, for not a question was asked by the prosecution, nor even any suggestion made, which hinted at anything other than a bold and atrocious robbery.
It was accordingly reversible error for the lower court to grant the instruction asked by the state suggesting to the jury that they...
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Watkins v. State
...conviction for an attempt to commit rape cannot stand. See Davis v. State, 89 Miss. 21, 42 So. 542; Wilson v. State, 85 Miss. 687; Kemp v. State, 89 Miss. 445. conviction was had absolutely and alone upon the testimony of the prosecutrix, she not being corroborated by any other witness or c......