Opinion
No. 33505.
April 10, 1939.
1. ROBBERY.
In prosecution for attempted robbery, evidence identifying defendant was sufficient to warrant submission of question of defendant's guilt to jury.
2. CRIMINAL LAW.
In prosecution for attempted robbery, overruling defendant's motion for change of venue was not error under evidence offered on motion.
APPEAL from the circuit court of Lincoln county; HON. J.F. GUYNES, Judge.
E.C. Barlow and Jas. F. Noble, both of Brookhaven, for appellant.
The court erred in overruling appellant's motion for a change of venue.
Forgetting the legal constitution rights of this appellant, and denying the appellant a most valuable right guaranteed to him by the United States Constitution, and the Constitution of Mississippi, and provided for in the statutory laws of this state, to-wit, a fair and impartial trial, before a jury who are fair and impartial, free from prejudgment of the case, biased, ill will, or fixed opinions, and for this error the case should be reversed and remanded.
Anderson v. State, 92 Miss. 656, 46 So. 65; Tennison v. State, 79 Miss. 708, 31 So. 421; Brown v. State, 83 Miss. 646, 36 So. 73; Eddins v. State, 110 Miss. 780, 70 So. 898; Eddens v. State, 96 So. 179; McNeice v. State, 60 So. 8; Kenton v. State, 96 So. 179; Fisher v. State, 110 So. 361.
The court erred in overruling the demurrer to the indictment.
The indictment as drawn, and as is shown by the record, simply charges an assault, and does not charge a robbery, the indictment is vague, indefinite, and misleading, and the demurrer to the indictment should have been sustained.
Montgomery v. State, 65 So. 572, 107 Miss. 518; McGraw v. State, 128 So. 825; Webb v. State, 99 Miss. 545, 56 So. 856.
The appellant should have had a directed verdict as set out in the motion, construing all the evidence together as offered by the state. The appellant was nowhere sufficiently identified by the witness Mrs. Rodah Cotton and Howard Jackson. The statements made by Mrs. Cotton before the jury were only statements for the purpose of reaching the sympathy of the jury. Taking her testimony, she got down to the fact that she believed this was the man; eighty-one years old, very feeble and decrepit, eye sight bad, sitting in the courtroom, looking at the appellant two days, seeing him with the officers and his attorney, then believes he is the man because he is bald headed.
The testimony of the witness Howard Jackson, in its entirety, is unbelievable from the beginning to the end. He says he believes the appellant was the man because he was bald headed. He pretends that he was tied, his story is unreasonable, and should have been excluded.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
The granting or refusal of the application for change of venue is a matter addressed solely to the discretion of the court and this court will not disturb its finding unless it clearly appears that this discretion has been abused.
Mackie v. State, 138 Miss. 740, 103 So. 379; Wexler v. State, 167 Miss. 464, 142 So. 501.
The indictment in this case properly charges an attempted robbery with firearms. It apparently followed the indictment which was approved in the case of Hall v. State, 166 Miss. 331, 148 So. 793; Anderson v. State, 168 Miss. 424, 151 So. 558.
A motion to strike must specify infirmities in the evidence.
Wampold v. State, 170 Miss. 732, 155 So. 350.
So far as the evidence in this case is concerned, we submit that the questions in the main which appellant presents here are matters that had to be determined by the jury. We submit that there were no rulings in respect to the admission or exclusion of testimony of which appellant can complain here and that the judgment appealed from should be affirmed.
Argued orally by E.C. Barlow, for appellant, and by W.D. Conn, Jr., for the State.
Jack Green was jointly indicted with Woodrow Maddox, Jesse Richardson, and Maudie Lee Jackson, for the attempted robbery of J.M. Cotten and his wife, Mrs. Rhoda Cotten. The attempt to commit the robbery involved the use of firearms, and after a motion by the appellant for a change of venue had been overruled he was separately tried, convicted, and sentenced to serve a term of fifteen years in the state penitentiary.
J.M. Cotten, who was 89 years of age, was paralyzed and confined to his bed, and his wife, who was 81 years of age, was feeble and unable to get about except by the use of crutches. They lived alone out in a rural community where some of the neighbors were accustomed to stay with them at night, because of their old age and infirmities. On the night when this crime was committed, one Howard Jackson and his little eight year old girl were spending the night there. Howard Jackson's wayward daughter Maudie Lee Jackson, who was also indicted, was living with one of the other defendants, Woodrow Maddox, at Natchez, after having left the local community with him two or three weeks before the attempted robbery. Prior to leaving for Natchez with Maddox, she had stealthily taken the wardrobe keys from the Cotton home. Maddox in some way gained possession of these keys while he and Maudie Lee Jackson were living together in Natchez, and on one occasion he stated to her that he thought the Cottens had money. The crime is alleged to have been committed after 10 o'clock at night, and she testified that during the afternoon the appellant, Jack Green, together with Jesse Richardson, came in a truck to where she and Maddox were living in Natchez, and that these three men left Natchez together, stating that they would return after midnight. Immediately before the attempted robbery, three men arrived at the Cotten home in a truck, and whereupon Howard Jackson went out to investigate, upon "hearing the horn blow," and was approached by a person, whom he afterwards identified as being the appellant, who told him that they wanted to get some water to drink and also some for the radiator of their truck. Upon arriving at the well, he says that he was assaulted by this man and two others and carried to a nearby shop where his ankles and wrists were tied with wire, and he was told to "keep your mouth shut, we are going to make a quick job of it. We are after money." That two of the men had something over their faces, one of whom he recognized as Maddox (on account of his past acquaintance with him and from an observation of his shoes and clothes), and that the other man, whom he identified at the trial as being the appellant, was unmasked. He further testified that these men left him securely tied within a few feet of the roadside and went back toward the Cotten home. It appears that when these men entered the house Jackson's little girl, in her fright, ran out of the house and passed along the road near where her father was tied; that with her assistance he was able to get the wire loose from his ankles, but that the wire was untied and unwrapped from his wrists by someone else after he had returned to the house; and that upon returning there one of the three men was starting the truck, and the other two were coming out of the house. He identified this truck, which he had seen late that afternoon and also on that night when he first came out of the house to see what the occupants of the truck wanted, as the same truck driven by the appellant at the time of his subsequent arrest. He claimed that he was able to thus identify the truck on account of the fact that it had some bars broken out of the radiator front, and a patched fender which had been bolted. Others testified to having seen three men on this same truck in that vicinity on the evening of the attempted robbery. The appellant is alleged to have admitted to the officers that he drove this truck from Natchez to the Cotten home, but that he claimed that when he learned what the other two men intended to do, he stayed on the outside and did not go into the house. Mrs. Cotten testified, however, that three men came in the house; that Maddox drew a gun on her; that one of the men struck her on the jaw; that some of them wrapped a blanket around her head and placed her on the bed; that after the men went out of the house, Howard Jackson came in to get a gun and some shells, and that when she went to the wardrobe to look for the shells she found the keys in the door which had been previously stolen by the said Maudie Lee Jackson, and which Maddox had gained possession of as aforesaid. She stated that the men neither demanded money nor found any. The evidence was sufficient however to warrant the jury in finding that they searched for money with the intention and in the attempt to take it against the will of their victims, after having placed them in fear by the use of firearms and the acts of violence testified to.
Mrs. Cotten was reasonably certain at the trial that she could identify the appellant as being one of the men who came into the house at the time of the attempted robbery. However, the conviction of the appellant must rest primarily upon the fact that there were three men present in the house at the time; that the identification of him by Howard Jackson was positive; and the fact that he is alleged to have admitted to the officers that he drove the truck and carried the other two parties to the scene of the crime.
We are of the opinion, from all of the facts and circumstances disclosed by the record, that the identification was sufficient to justify the submission of the case to the jury, and to warrant the conviction of the appellant.
We have also carefully considered the evidence offered on the motion for the change of venue, and we do not think that the trial court was in error in overruling the motion; nor that there was any error committed upon the trial that would justify a reversal of the case.
Affirmed.