Montgomery v. State

• Citation: 169 Ala. 12,53 So. 991
• Parties: MONTGOMERY v. STATE.
• Decision Date: 01 June 1910
• Court: Alabama Supreme Court

53 So. 991

169 Ala. 12

MONTGOMERY v. STATE.

Supreme Court of Alabama

June 1, 1910

Rehearing Denied Dec. 22, 1910.

Appeal from City Court of Anniston; Thomas W. Coleman, Jr., Judge.

I. L Montgomery was convicted of robbery, and he appeals. Affirmed.

The following charges were refused to the defendant: (5) "If, after considering all the evidence in this case you are doubtful from any part of it that the defendant did actually participate in the crime charged, it will be your duty to acquit him." (7) "The court charges the jury that if two reasonable constructions can be given to the facts proven in this case, one favorable to the defendant and the other unfavorable, it will be the duty of the jury to give to the evidence that construction which is favorable to the defendant." Charges 9, 10, and 11 were the affirmative charges as to counts 1, 2, and 3. (19) "I charge you, gentlemen of the jury, that if you find from the evidence that Wallace Aderhold was at the time of the robbery under the age of 21 years, and that he lived with and was maintained and supported by his father, and had not then been emancipated, and that the money taken from him did not belong to him by gift, or devise, or descent, you must find the defendant not guilty." (16) "I charge you gentlemen of the jury, that before you can find the defendant guilty you must be satisfied to a moral certainty, not only that the proof is consistent with defendant's guilt, but that it is wholly inconsistent with every other reasonable conclusion, and that, unless you are so convinced by the evidence of the guilt of the defendant that you would each venture to act upon that decision in matters of the highest concern and importance to his own interest, then you must find the defendant not guilty."

Richard L. Williams, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

MAYFIELD J.

The defendant was indicted, jointly with one James Davis, for robbery of one Wallace Aderhold. The money taken was described in counts 1 and 2 as "one half dollar, one quarter dollar, and four dimes, in silver coinage of the U.S. A." The third count, instead of describing the money as "silver coinage of the U.S. A.," described it as "the current silver coin of the realm, of the value of one dollar and fifteen cents." The property, being money, was sufficiently described in each count of the indictment, and the indictment was, therefore, not subject to demurrer upon this ground. Nevill's Case, 133 Ala. 99, 32 So. 596; Grant v. State, 55 Ala. 201.

Robbery is an offense against the person as well as against the property of the person robbed. The person robbed in this case being rightfully in possession of the money when it was taken (having been sent by his father to collect and bring the money to him), and he being the person from whom it was taken, the indictment properly charged the property to be that of the minor. Nor does it constitute a material variance, such as to prevent a conviction, if the proof shows or tends to show that the legal title to the property was in the father of the minor robbed. Danzey v. State, 126 Ala. 15, 28 So. 697; Dorsey v. State, 134 Ala. 553 33 So. 350. The child in this case being in the undisputed possession and control of the property, he had such an interest in and right to it as to support a conviction, though the legal title was in the father. People v. Nelson, 56 Cal. 82.

The court did not err in allowing the boy alleged to have been robbed to testify that he could not see Miller Draper from the place of the robbery. This evidence was admissible as describing the scene of the crime, and as tending to show that the boy was alone, and not accompanied at the time by Miller Draper, who had left Anniston with him.

The court did not err in allowing George Bryant, a witness for the state, to testify that he had seen Wallace Aderhold, the boy robbed, on the day of the alleged robbery, nor in...