Odom v. State

• Decision Date: 06 May 1935
• Docket Number: 31634
• Court: Mississippi Supreme Court
• Parties: ODOM v. STATE

161 So. 141

172 Miss. 687

ODOM v. STATE

No. 31634

Supreme Court of Mississippi

May 6, 1935

Division B

Suggestion Of Error Overruled June 10, 1935.

APPEAL from circuit court of Attala county, HON J. F. ALLEN, Judge.

Pearl Odom was convicted of robbery, and he appeals. Affirmed.

Affirmed.

Guyton & Thornton, of Kosciusko, and J. E. Franklin, of Jackson, for appellant.

The appellant was not accorded in this case that fair and impartial trial which section 26 of our Constitution guarantees to him.

Magness case, 103 Miss. 30, 60 So. 8; Cartwright v. State, 71 Miss. 82, 14 So. 526; Sprinkle v. State, 102 So. 844, 137 Miss. 731; Holifield v. State, 132 Miss. 446, 96 So. 306; Davis v. State, 132 Miss. 448, 96 So. 307.

On the morning of September 28th, the evidence having all been then submitted, Mr. Bell, one of the jury bailiffs, purchased for Dan Rimmer, a juror, the Commercial Appeal, in which was the article found on page 316 of the record. This article is headed: "Striker Being Tried for Beating Officer--Militiamen Guard Court During Hearings." This article is headed that the National Guard was guarding the court during this trial-- a statement without fact. The appellant did not know that this information, false and incompetent, had reached the jury, and had no opportunity to controvert it as a fact or object to its competency. But it was a potent aid in cementing in the minds of the jury the belief that the sentiment manufactured in secret caucus and camouflaged by a cut-and-dried mass meeting was true beyond a reasonable doubt.

Ross R. Barnett and P. Z. Jones, Jr., both of Jackson, for appellant.

The jury was not instructed as to what are the elements of the crime of robbery. That is, the jury was not told what it takes to commit robbery.

16 C. J. 968; William v. Bates, 90 So. 886; Dedeaux v. State, 87 So. 664; Gates v. State, 135 So. 185; Poe v. State, 132 So. 92.

An instruction is erroneous which assumes to state all the elements of the crime, but omits one or more of them, or which refers the jury to the indictment for information to ascertain any of the essential elements.

16 C. J. 968; Upton v. State, 108 So. 287; Thompson v. State, 130 So. 112; Lane v. State, 70 So. 982; Cummins v. State, 110 So. 206; Y. & M. V. R. R. Co. v. Cornelius, 95 So. 90; Southern R. R. Co. v. Ganong, 55 So. 355; 2 Thompson on Trial (2 Ed.), sec. 2327; Martin v. State, 142 So. 16.

The jury so far as this record shows never knew that before it could convict Pearl Odom it had to be shown and it had to believe that Pearl Odom with intent committed the robbery with which he stood accused.

Hale v. State, 16 So. 387.

If there is any doubt as to the propriety of an instruction, that doubt should be resolved in favor of the accused.

Gambrell v. State, 46 So. 198.

The verdict was contrary to the law and the evidence.

Bishop on Criminal Law (9 Ed.), sec. 634, page 461; Lusk v. State, 2 So. 256; Lyon v. State, 92 So. 582; McBridge v. State, 126 So. 406.

A mere battery by one of another with no intent to steal is not robbery.

2 Bishop on Criminal Law, page 863; Mahony v. State, 26 S.W. 622; Bailey v. State, 122 S.W. 497; U. S. v. Durkee, 25 Fed. Cases Number 15009 Mcall 196; 122 S.W. 497.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

At the time of the trial there was no motion made to exclude the evidence and direct a verdict nor was there any peremptory instruction requested.

Under the circumstances of this case, where the accused is positively identified by several witnesses and where there is proof of an alibi by other witnesses, I think it is an out and out question for the jury.

Evans v. State, 159 Miss. 561, 132 So. 563; Brown v. State, 103 Miss. 639, 60 So. 726; Jackson v. State, 105 Miss. 782, 63 So. 269; Wells v. State, 112 Miss. 76, 72 So. 859; Spight v. State, 120 Miss. 752, 83 So. 84; Chandler v. State, 143 Miss. 312, 108 So. 723; Matthews v. State, 148 Miss. 696, 114 So. 816; Steward v. State, 154 Miss. 858, 123 So. 891; Thomas v. State, 129 Miss. 332, 92 So. 225.

Where parties combine to commit crime, the law imputes the guilt of each to all thus engaged, and pronounces all guilty of any crime committed by any in the execution of the common purpose, as one of its natural and probable consequences, even though none of the parties intended at the outset to do the particular thing constituting the crime.

Lusk v. State, 64 Miss. 845, 2 So. 256; Woodward v. State, 166 Miss. 596, 143 So. 859.

It is said that at the outset there was a mass meeting held some two or three weeks prior to the trial. Counsel evidently knew all about this mass meeting prior to the trial, as much as they did after the trial was over. At least, no showing is made that they did not know about it and if the atmosphere was as hostile as they would now have this court believe it was, it Was their duty to either ask for a continuance on account of this "hostility" or else for a change of venue.

Hilbun v. State, 167 Miss. 725, 148 So. 365.

There is no showing that the juror, Rimmer, or any other juror, ever read the paper, or that any of them saw the article which is appended to the motion for a new trial as an exhibit. But, assuming that every member of the jury read the article, there is nothing in it which would be calculated to prejudice the jury one way or the other.

The proof shows that one of the jurors wanted to go into a toilet, and the bailiff, after seeing that it was unoccupied, allowed him to go in and then stood at the door. The bailiff testified that no one approached him, and that he quickly rejoined the group. Under such circumstances, there was no error.

Queen v. State, 152 Miss. 723, 120 So. 838; Wells v. State, 162. Miss. 617, 139 So. 859; Ervin v. State, 151 So. 177; Sullivan v. State, 149 Miss. 412, 115 So. 552.

A conspiracy, like any other controverted fact, may be shown by the acts of the parties, or by circumstances, as well as by their agreement.

Eaton v. State, 163 Miss. 130, 104 So. 729; Street v. State, 43 Miss. 2; Osborne v. State, 99 Miss. 410, 55 So. 52; Pickett v. State, 139 Miss. 529, 104 So. 529.

Defects in one instruction may be cured or supplemented by another or other instructions.

Williams v. State, 160 Miss. 485, 135 So. 210.

Time is not of the essence of the crime of robbery.

Section 1208, Code of 1930.

The matters of variance between the indictment and the proof were not called to the attention of the court prior to the verdict, nor was variance ever called to the attention of the trial court after verdict. This cannot be raised here for the first time.

Smith v. State, 112 Miss. 348, 72 So. 929; Horn v. State, 148 So. 310.

The statement that the indictment does not charge intent is met by several decisions of this court, to the effect that where it alleges that property was, in fact, taken, stolen and carried away, the element of intent is sufficiently charged.

Webster v. State, 146 Miss. 682, 111 So. 749; State v. Snowden, 164 Miss. 613, 145 So. 622.

It has been held that an allegation in an indictment (for feloniously taking personal property of another in his presence, by putting him in fear of injuries) that defendant did feloniously take, steal and carry away property, sufficiently alleges an intent to steal, as necessarily including the idea that property was taken with the intention of stealing.

Webster v. State, 146 Miss. 682, 111 So. 749; State v. Snowden, 164 Miss. 613, 145 So. 622; Jones v. State, 120 So. 199.

Argued orally by P. Z. Jones and Ross R. Barnett, for appellant.

OPINION

Anderson, J.

Appellant and five others were jointly indicted in the circuit court of Attala county of the crime of robbery. Appellant was granted a severance, was tried, convicted, and sentenced to the penitentiary for the term of ten years. From that judgment he prosecutes this appeal.

The charge was that appellant with the five others robbed G. W. Blount of a pistol of the value of thirty-five dollars. The Aponaug Manufacturing Company owns and operates a cotton mill located at Kosciusko. In August, 1934, many of the employees of the mill were on a strike; there was strong feeling between the union and nonunion employees. The strike was called by the union force. A company of National Guard was present patrolling the cotton mill to keep down disorder. G. W. Blount, a nonunion man, was employed as a guard, and the company furnished him with a pistol which he carried. He was on his way from the cotton mill to his boarding place to partake of his evening meal, when, according to the state's evidence, appellant and the five others assaulted him. Appellant and William Frier were armed with pistols, one of them jabbed his pistol in Blount's back and the other in his stomach, and commanded those present to take Blount's pistol off of him, which was done and never returned to him.

The evidence showed that the pistol was of the value of thirty-five dollars and was owned by the cotton mill and turned over to Blount to enable him to perform his duties as a guard. Appellant and the other five then took Blount some distance away, laid him across a log, and took a leather belt with a buckle on it and gave him a beating and directed him to quit his employment and leave town at once. Appellant's defense was an alibi.

It is argued that the state's case was not made out because the evidence showed that appellant and the others jointly indicted with him assaulted and whipped Blount, nor for the purpose of robbing him of his pistol, but for the purpose of driving him out of his employment as a guard. To sustain that contention, appellant relies on the well-established principle that, where there is an unlawful assemblage of persons to...