Williams v. State

• Court: Mississippi Supreme Court
• Writing for the Court: BROOM; GILLESPIE; SMITH
• Citation: Williams v. State, 317 So.2d 425 (Miss. 1975)
• Decision Date: 04 August 1975
• Docket Number: No. 48516,48516
• Parties: Freddie Lee WILLIAMS v. STATE of Mississippi.

Page 425

317 So.2d 425

Freddie Lee WILLIAMS v. STATE of Mississippi.

No. 48516.

Supreme Court of Mississippi.

Aug. 4, 1975.

John W. Land, Rosedale, Boyd P. Atkinson, Cleveland, for appellant.

A. F. Summer, Atty. Gen., by Catherine Walker, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, SMITH and BROOM, JJ.

BROOM, Justice.

Previously a majority of the Court reversed the decision on appeal here. An opposite result was reached on petition for rehearing, and the prior majority opinion and dissenting opinion are withdrawn.

Armed robbery was the offense for which appellant, Williams, was convicted in the Circuit Court of the Second Judicial District of Bolivar County, Mississippi. After the jury found him guilty, the court sentenced him to a term of three years in the state penitentiary. We affirm.

The thesis of the appellant's defense is that he took the money in question in 'good faith' and that the evidence was insufficient to establish his criminal intent.

FACTS

On February 9, 1974, appellant selected and purchased a pair of size 10 1/2 shoes from Jay's Department Store in Cleveland but declined to try them on though invited to do so. He paid $25.15 for the shoes. According to him, he was told by the sales clerk (Coccilova) that if the shoes were not satisfactory or did not fit they could be returned and the matter adjudged. Other testimony indicated that it was the store's policy not to accept for exchange or refund shoes that were 'scuffed.' Unfortunately the shoes did not fit. Two days later the appellant returned them (worn and scuffed) to the store and asked that they be exchanged for other shoes or that the $25.15 be refunded. A store employee then unsuccessfully attempted to stretch the shoes and the appellant demanded a refund. When the appellant's demand for return of the money was refused, he left but stated that he would return and get his money.

Later that day (February 11th), he returned the shoes in a 'scuffed up pretty bad condition', and again demanded a refund but again his demand was unavailing. Appellant then drew a .38 caliber pistol which he pointed at Mr. Reynolds (not the clerk who sold the shoes but the shoe department manager), and demanded $25.15. Appellant told Reynolds, 'I ain't joking, man, I want my money back . . . don't try anything.' He then placed the sales slip (for $25.15) on the counter and told the cash register lady, 'I want that much money . . ..' These facts are admitted but there is some dispute as to whether or not the appellant also said, 'this is a take back.' At gun point, Mr. Reynolds (having no money on him) directed the cashier to take the money out of the cash register. In that manner the appellant obtained $25.15.

I.

We find no merit in appellant's argument that the court erroneoulsy refused to grant him his instruction No. 11. Other instructions, No. 1 for the state and No. 8 for the defendant, properly advised the jury of the necessity to find 'felonious intent' on the part of the defendant as a prerequisite to his conviction. The jury also had before it another instruction (requested by appellant) to the effect that it might find him guilty of the lesser offense of unlawfully pointing and aiming a deadly weapon (a misdemeanor) but the jury rejected that theory of the case.

II.

We cannot accept appellant's argument that his alleged 'good faith' taking of a sum of money entitled him to a peremptory instruction. Robbery under Mississippi Code Annotated section 97-3-79 (1972) is established if the proof shows that the defendant took or attempted to take the personal property of another from his presence against his will by violence or by putting him in fear of immediate injury to his person by exhibition of a deadly weapon. Bell v. State, 259 So.2d 118 (Miss.1972).

The three essential elements of robbery are: felonious intent, force or putting in fear as a means of effectuating the intent, and by that means a taking and carrying away of the property of another from his person or in his presence. Sykes v. State, 291 So.2d 697 (Miss.1974). According to Sykes, a jury finding that '(T)he particular intent of the accused must be one in which substantial gain in money or property was the dominant or primary purpose . . .' (emphasis added) is not a prerequisite to a robbery conviction. Thus it is of no controlling significance that appellant took only a sum equal to that which he paid for the shoes.

In Thomas v. State, 165 Miss. 897, 148 So. 225 (1933), this Court rejected the argument that the collection of unliquidated damages by force was not robbery. A latter case, similarly styled, Thomas v. State, 278 So.2d 469 (Miss.1973) is cited by appellant. In that case a robbery conviction was reversed, but it was because of a deficiency in jury instructions. Our decision there pointed out that the issue to be decided by a properly instructed jury was whether the appellant took the property involved (a pistol and a police car) from the policemen with the intent to steal.

67 Am.Jur.2d Robbery section 61, at 63 (1973), on the matter of intent in a robbery prosecution, states the following rule:

The issue of felonious intent is one of fact, and its determination is therefore within the exclusive province of the jury, under appropriate instructions from the court. Consequently, the jury may find, if the facts justify it, that a defendant's expressed intent to retake money lost in an illegal game, or to collect a debt, was a mere pretext resorted to as a cover for an attempt to steal.

In Herron v. State, 176 Miss. 795, 170 .so. 536 (1936), the appellant (charged with robbery) argued that he took a mare under the belief that he had a right to do so, and that the mare was his property. There we said that had the accused taken the mare from the premises of Morris 'in his absence' without his knowledge or consent with intent to deprive Morris of his property rights, he would have been guilty of larceny and 'not mere trespass.' This Court affirmed his conviction of robbery, and held that the issue (intent) was a question for the jury to resolve upon the proof which showed that the mare was taken by appellant at pistol point.

The record before us reveals no evidence that the money which the appellant obtained from the cash register was the identical property or the same cash which he had given for the shoes at the time of the purchase. Neither does it show that what he took at gun point was in fact his own property, or that what he took was not worth more than the value of the shoes at that time. In view of the admitted scuffing damage to the shoes which appellant had worn down the street, his claim was unliquidated because the value of the shoes in their depreciated condition was not fixed or certain.

McDaniel v. State, 16 Miss. (8 Smedes & Marshall) 401 (1847), relied upon by appellant, was a murder case resulting from a dispute about a pony. There is language in McDaniel that 'if there be a fair, bonafide claim of property or right in the prisoner, the offense amounts to but a trespass.' In the instant case the appellant admitted forcibly taking money to satisfy a claim for money which he may have believed was owed him, but upon the facts and circumstances this falls short of a 'fair, bonafide claim' and did not justify his taking the law into his own hands. The following well reasoned cases from other jurisdictions support our holding. State v. Ortiz, 124 N.J.Supr. 189, 305 A.2d 800 (1973); People v. Uselding, 107 Ill.App.2d 305, 247 N.E.2d 35 (1969). Our judgment is that the evidence made out a case sufficient for submission to the jury.

As said in Herron, supra, which with approval quoted from Fanin v. State, 51 Tex.Cr.R. 41, 45, 100 S.W. 916, 918, 10 L.R.A. (N.S.) 744, 748, 123 Am.St.Rep. 874, 879-80 (1907):

'(W)e are not willing to lay down the proposition that if a man collects a debt by force and threats, and putting in fear, he will not be guilty of robbery.' (Herron v. State, 176 Miss. at 801, 170 So. at 538.)

The record shows that the appellant brazenly entered the store, cocked his pistol, disturbed the peace, harassed the store employees, aimed the loaded pistol at Reynolds, called him a son-of-a-bitch an in 'wild-west' fashion took at gun point money-the property of another. Such violent self-help as a means of obtaining redress for grievances concerning property rights is inimical to order and the appropriate administration of justice. It would be most unjudicious to accept his argument that such a caper was done in good faith without animus furandi, and that, therefore, the case should not have gone to the jury.

The robbery statute, supra, was applied by the grand jury and prosecutors in accordance with our system of jurisprudence. As is often the case, other statutes carrying lesser penalties could have been applied, but that is no reason to hold that the robbery statute was inapplicable when it precisely covers the acts of the appellant. Those charged with prosecutorial duties and responsibilities must be allowed to exercise reasonable discretion in deciding which of applicable statutes will be used as a basis for a criminal prosecution.

The trial of appellant was fair in every respect and the decision must stand.

The case was considered by a conference of the Judges en banc.

Affirmed.

GILLESPIE, C.J., and ROBERTSON, SUGG and WALKER, JJ., concur.

RODGERS, P.J., and PATTERSON, INZER and SMITH, JJ., dissent.

SMITH, Justice (dissenting):

Freddie Lee Williams, a student at Delta State University, was indicated for the crime of armed robbery as defined by Mississippi Code Annotated section 97-3-79 (1972). He was tried upon that charge in the Circuit Court of Bolivar County and convicted. The jury failed to fix his penalty at life imprisonment, however, and he was sentenced to serve three years in the penitentiary.

There is little dispute as to the material facts in the case. Nor is there any contention that the acts of...