Turner v. State

• Decision Date: 14 December 1936
• Docket Number: 32554
• Citation: 177 Miss. 272,171 So. 21
• Court: Mississippi Supreme Court
• Parties: TURNER v. STATE

171 So. 21

177 Miss. 272

TURNER v. STATE

No. 32554

Supreme Court of Mississippi

December 14, 1936

Division A

1. CRIMINAL LAW.

Refusal of continuance because of temporary absence of witness held not abuse of discretion where accused offered no evidence in support of his motion, and father of absent witness testified that witness had permanently moved out. of jurisdiction.

2. INDICTMENT AND INFORMATION.

Where indictment charged taking of money from person and presence of certain parties, evidence that accused took money from presence of the named parties sustained conviction of robbery under statute defining robbery as feloniously taking from the person, or from the presence of another by violence (Laws 1932, chap. 328).

3 ROBBERY.

In robbery prosecution, whether accused who forcibly took money in sight at poker game in which accused was engaged, took his own property only, or some of. that of other players as well held for jury.

HON THOS. H. JOHNSTON, Judge.

APPEAL from the circuit court of Lee county HON. THOS. H. JOHNSTON, Judge.

Elihu Turner was convicted of robbery by the exhibition of a deadly weapon, and he appeals. Affirmed.

Affirmed.

J. W. P. Boggan, of Tupelo, for appellant.

The court erred in overruling the motion of appellant for a continuance of this case on account of the temporary absence of Charles Osser, whose testimony was material, and who was at that time said to have been in the city of New Orleans, as is shown by affidavit of the appellant, which was signed in the name of C. E. Turner, who is one and the same person as Elihu Turner. This was at the term of court at which the indictment in this case was found and the appellant was advised that the attendance of said witness could be had at the November term, 1936, of the circuit court of Lee county, which was the next term of said court after the May term, at which it was tried, and the continuance asked for I do not think was unreasonable and should have been granted.

The record does not show any proof whatever to sustain the charge that money was taken off the person of any of the parties named, that the state claimed were robbed by the appellant.

The appellant was charged in the indictment with two offenses, for either of which under the statute, he might have been found guilty. The indictment charged that the money in question was taken in the presence of and from the persons of the said R. C. Brassfield, Ernest Weeks and Joe Turner and having so charged the appellant insists that there was a material variance between his indictment and the proof.

The law in the state of Mississippi recognizes the right of the appellant to the money lost by him in said game and provided for the recovery of it by the appellant, his wife, or children and in support of this, the court's attention is called to section 1826, of the 1930 Code of Mississippi.

It is necessary to constitute the crime with which appellant is charged for him to have feloniously taken, stolen and carried away the money in question and for the money to have been the property of the persons who are claimed to have been robbed by appellant. The proof in this case does not show that the appellant had any intention of robbing any one or taking any money from any of the parties that did not belong to him, but was trying to keep them from robbing him.

23 R. C. L. 1143, par. 8; McDaniel v. State, 8 S. & M. 401, 40 L.R.A. (N.S.), 806.

It is a well settled rule that a person cannot be guilty of robbery by taking his own specific property from the possession or person of another, although the taking may be accomplished under such circumstances as would amount to robbery if the property belonged to the person from whom it is taken.

U. S. v. McNamara, 2 Cranch. 45, 26 Fed., Cas. No. 15, 701; 13 Ann. Cas. 775; Jones v. State, 95 Miss. 121, 48 So. 407.

Robbery is merely an aggravated form of larceny and, as announced in the reported case, an intent on the part of the accused to steal the property taken is an essential element of the crime of robbery.

21 Ann. Cas. 1138.

Webb M. Mize, Assistant Attorney- General, for the state.

It is elementary law that applications for continuances are addressed to the discretion of the trial court and that the trial court's ruling will not be disturbed in the absence of abuse of discretion.

Jones v. State, 168 Miss. 702, 152 So. 479; Stokes v. State, 172 Miss. 199, 159 So. 294; Hodgkin v. State, 172 Miss. 297, 160 So. 562.

Before appellant can complain of the court's overruling an application for a continuance, he must show diligence throughout the trial and must further show how he was injured by the absence of the witness in a motion for a new trial. In the absence of this, even though the court abused its discretion, there would still be no error.

Coward v. State, 159 Miss. 705, 131 So. 254; Robertson v. State, 157 Miss. 642, 128 So. 772; Hinton v. State, 166 So. 762; Ogden v. State, 164 So. 6.

We submit that the indictment is not duplicitous and that if it does charge two offenses that they both grow out of a single criminal act and that they may, therefore, be charged together.

Jimerson v. State, 93 Miss. 685, 46 So. 948; Sauer v. State, 144 So. 225, 166 Miss. 507.

However, be this as it may, the evidence shows that every material allegation of the indictment was proved by the testimony of the state's witnesses.

If there is a variance, it must be material so as to affect the substantive rights of the defendant in order to constitute error.

Roney v. State, 153 Miss. 290, 120 So. 445; Sanders v. State, 141 Miss. 289, 105 So. 523.

Appellant argues that the proof in the case did not show that appellant had an intent to steal. When appellant robbed these people with a deadly weapon, that, in itself, imported an intent to steal.

Herron v. State, 176 Miss. 795; Baygents v. State, 154 Miss. 36, 122 So. 187.

OPINION

McGowen, J.

Appellant was indicted, tried, and convicted of the crime of robbery by the exhibition of a deadly weapon, and the jury failing to fix the punishment at death, the court, thereupon, sentenced him to serve twenty years in the penitentiary.

The indictment was substantially in the language of the statute on the subject, chapter 328, page 657, Laws of 1932, reading, in part, as follows: "Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence . . . shall be guilty of robbery and, upon conviction, shall be punished by death," etc. It will be noted that the two phrases of this statute are connected disjunctively by the word "or."

We do not deem it necessary to set out in detail the facts. Suffice it to say that the indictment charged appellant with taking money in the presence of, and from the persons of, R. C. Brasfield, Ernest Weeks, and Joe Turner. It was shown by the evidence that these persons, together with appellant, were engaged in a game of poker, using the top of a trunk for a table; that appellant arose as if to go out, and then turned to where the money used in the game and other money was lying, pulled a gun from his pocket, and informed the others that he was going to get his money, telling his brother, Joe Turner, to count it out. Joe Turner refused to do this, and thereupon, the appellant, with his left hand, took all the money on the trunk, that which had been put into the game, and that which the players had on the side. Appellant threatened Weeks and Brasfield, the former when he had his hand in appellant's pocket, and the latter when he attempted to take two dollars claimed as his, and appellant also threatened Mrs. Brasfield in the same manner, and appellant then backed out of the room, got in his car and drove away.

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