Sims v. State, 5 Div. 774.

• Decision Date: 14 January 1930
• Docket Number: 5 Div. 774.
• Citation: 126 So. 498,23 Ala.App. 387
• Parties: SIMS v. STATE.
• Court: Alabama Court of Appeals

126 So. 498

23 Ala.App. 387

SIMS v. STATE.

5 Div. 774.

Court of Appeals of Alabama

January 14, 1930

Rehearing Denied Feb. 4, 1930.

Appeal from Circuit Court, Macon County; S. L. Brewer, Judge.

Edgar Sims was convicted of assault with intent to rob, and he appeals.

Affirmed.

Jas. W Strother, of Dadeville, for appellant.

Charlie C. McCall, Atty. Gen., and Merwin T. Koonce, Asst. Atty Gen., for the State.

BRICKEN P.J.

The indictment contained four counts, and charged this appellant with the offense of an assault with intent to rob. No objection by demurrer, or otherwise, was interposed to the indictment, and the judgment entry shows, "the defendant being arraigned upon the indictment, for his plea thereto says he is not guilty. Issue was then joined upon the defendant's plea of not guilty."

A plea of "not guilty" in a criminal case is an admission of the genuineness of an indictment, and operates as a waiver, by the accused, of all irregularity in the filing or presenting of it.

The state insisted, and offered evidence in support thereof, that on December 20, 1928, an automobile stopped near the First Bank of Notasulga, Ala., and that three masked men armed with revolvers entered the bank and ordered Albert B. Hope, its president, and Carl M. Hayes, cashier of the bank, to "hold up your hands and get back into the vault" that these bank officers very promptly obeyed the order thus given, and at that time there was some $10,000 in money in the bank; that the attempted robbery of the bank was frustrated, the invaders being frightened away by the screaming of a terrified negro woman who was in the back as a customer at that time.

Although no demurrer or other objection was interposed to the indictment, appellant here insists that the indictment is insufficient to charge the offense of an assault with intent to rob, in that it fails to charge the attemped robbery was committed upon and against the person of the individuals named. In this connection mere reference may be had to the case of Douglass v. State, 21 Ala. App. 289, 107 So. 791, 793, where the identical point was decided adversely to the contention of appellant. The indictment in the instant case is, in substance, the same as the indictment in the Douglass Case, supra, and this court expressly there held that an indictment charging an assault on a cashier with intent to rob the bank was good; it being unnecessary that the property taken be that of the person from whom it was taken. In this connection the court said:

"The contention is 'that an indictment which charges an assault upon "A." with intent to rob "B." would be absolutely bad.' We cannot accede to this proposition as relating to the count of the indictment here. This court judicially knows that a cashier of a bank is the officer thereof who is intrusted with, and whose duty is to take care of, the cash or money of such bank; or, in other words, that the cashier of a bank is the custodian of the funds of such bank, and, by the great weight of authority, the words 'taking from the person of another,' as used in connection with the common-law definition of robbery, are not restricted in application to those cases in which the property taken is in actual contact with the person of the one from whom it is taken, but include within their meaning the taking by violence or intimidation from the person wronged, in his presence, of property which either belongs to him or which is under his personal protection and control. To constitute robbery it is necessary, of course, that the property taken should be that of some other person than him who takes it, but it is not necessary that it should be the property of the person from whom it is taken. Thus a felonious taking by force has been held to be robbery where the property taken was in the lawful possession of a bailee, agent, or employee of the owner. We regard what has been said as being a sufficient answer to the insistences made in connection with the alleged invalidity of the indictment.

The taking of property from the presence of a person, and under his direct physical personal control, is the equivalent of taking from his person. Rice v. State, 204 Ala. 104, 85 So. 437. See, also, Hill v. State, 145 Ala. 58, 40 So. 654; Henderson v. State, 172 Ala. 415, 55 So. 816; Thomas v. State, 91 Ala. 34, 38, 9 So. 81.

Upon his examination as a witness for the state, the president of the bank in question, Albert B. Hope, testified, among other things: "I saw three men come into the bank together they came on into the bank; I heard the command saying, 'hold up your hands, get back into the vault.' I looked, then I saw these three men, one came on back and he had a pistol in his hand, I could just see the barrel. It was shiney, nickel plated. I could see the end of it pretty plainly, he walked up and said, 'Throw up your hands, get in the vault.' We did what he said. He was disguised in a way that I couldn't say just how he looked. He was a man I judged to be about my size, I weigh a hundred and ninety odd." At this juncture one of the counsel for the prosecution, who was conducting the examination of the state's witness Hope, said to defendant, "Stand up Edgar Sims." Counsel for defendant objected, and directed the defendant to...