Summary
In Passons, the Court rejected a defendant's assignment of error with respect to a jury instruction that tracked the indictment "naming the truck, the liquor, the $290, or any part thereof.
Summary of this case from Smith v. StateOpinion
No. 37543.
March 13, 1950.
1. Criminal procedure — robbery — venue.
Four persons in pursuit of a conspiracy to rob a truck of its load of contraband liquor overtook it on a public highway in Claiborne County, compelled the two occupants of the truck to get into their car, and one of the conspirators drove the truck followed immediately by the car until they reached a point in the Second Judicial District in Hinds County where the whiskey was unloaded from the truck, and the truck itself was then redelivered to its original occupants: Held that the proper venue of the prosecution for robbery was in the Second Judicial District of Hinds County. Sec. 2429, Code 1942.
2. Criminal procedure — counties of two judicial districts — venue in county where prosecution first begun.
In counties having two judicial districts, each district must be treated as if separate counties in matters of jurisdiction; but where the county attorney presented in the county court in the first judicial district an information that the defendants had committed robbery in the county and on the preliminary hearing thereof the county judge determined that the offense was committed in the second judicial district and ordered the defendants bound over to await the action of the grand jury of the latter district, such a proceeding is not to be considered as the beginning of the prosecution within the statute, Sec. 2429 Code 1942.
3. Criminal procedure — robbery — test in as to property taken.
The test in robbery is whether or not any of the property named in the indictment was taken by violence, force or fear; and, therefore, an instruction which followed the indictment, naming the property, added "or any part thereof" was not erroneous.
4. Criminal procedure — jury — bailiff — communication with jury.
Where during the consideration of the case by the jury, a juror asked the bailiff whether the judge would further instruct the jury if liquor had any legal property value to which the bailiff replied that he did not think the judge would give any further instructions, whereupon the door was closed and no further communication was had with the jury, and the bailiff did not report the incident to the judge, there being no meddling with or intent to influence the jury: Held that while bailiffs should report to the judge when requested and never give an opinion about anything involved in a case, the stated incident did not cause any such harm as could be made the ground for a reversal.
5. Criminal law — contraband liquor — property rights in, sufficient to support charge of robbery.
The statute which declares that there shall be no property rights in intoxicating liquor has as its purpose to disqualify any person in possession of such liquors from asserting a right to their recovery or for damages for their seizure, and it is not the purpose of the statute to abridge the power of the state to punish persons who steal liquor or who rob others and take their liquor; hence contraband liquor may be the subject of larceny or robbery. Sec. 2618, Code 1942.
6. Instructions — defining reasonable doubt.
While an instruction which attempts to define a reasonable doubt should not be given, yet the granting of such an instruction to the state will not require a reversal when by other instructions the defendants obtained a full and fair statement of the law applicable to their case.
Headnotes as approved by Lee, J.
APPEAL from the circuit court of Hinds County; H.B. GILLESPIE, Judge.
M. Ney Williams, and Barnett, Barnett Jones, for appellants.
I. Crime of robbery, if committed at all by the defendants, was committed in Claiborne County; and the circuit court of the Second Judicial District of Hinds County was without venue jurisdiction.
The gist of the crime of larceny is the asportation, the taking and making away with. It is submitted, however, that robbery is a different type of offense; that it is complete when the property is reduced to the possession of the receiver with the intention to permanently deprive the owner of his property. The gist of the crime of robbery is the force and terror employed in obtaining the stolen goods. State v. McAllister, 65 W. Va. 97, 63 S.E. 758, 131 Am. St. Rep. 955; 46 Am. Jur., Sec. 26, p. 151.
Under the heading of "Robbery" in 22 C.J.S., p. 185, it is stated:
"Robbery is committed in the county in which the property is taken by violence or putting in fear, and an indictment will not lie, as in the case of larceny, in another county into or through which the property was carried by the accused unless a statute so provides."
In the case of People v. Beale, 39 P.2d 504, 3 Calif, App. 2d 251, the court held: "The crime of robbery is complete when robbers, by means of force or fear, obtain possession of personalty in the presence of its lawful custodian and reduce it to their manual possession; and it is unnecessary to complete the crime that they carry it out of the physical presence of the lawful possessor or make their escape with it."
II. Where prosecution is begun in one county, the state cannot prosecute in another county until the prosecution is terminated in the first county.
In the case at bar, the judicial proceedings against the defendants were initiated in the First Judicial District of Hinds County. There has been no termination of such proceedings in the First District of Hinds County; and for all intents and purposes, the proceeding is still pending against the defendants in the First Judicial District.
III. The first and second instructions for the state are erroneous and constitute prejudicial and reversible error.
In instruction no. 1 for the State, it is stated that the court charged the jury for the State that if the jury believed from the evidence in the case that the defendants did feloniously and violently take, etc. and carry away from the person of Phil Dear certain personal property, to wit: a truck, six cases of whiskey, and the sum of $290.00, or any part thereof, then they, the jury, should find the defendants guilty.
Under this instruction, three of the jurors, for instance, could believe that the defendants robbed Phil Dear of the whiskey but did not take the truck or any money; while four of the jurors could have believed that the defendants robbed Dear of the truck but did not take the whiskey or any money; and the other five jurors could have believed that the defendants robbed Dear of the money but did not take the truck or whiskey.
The verdict of the jury would not be a unanimous verdict upon which they had all agreed. Certainly an instruction to the jury should correctly state the law applicable to the facts, and just as certainly the defendant is entitled to have the instructions given in a definite form in order that they may be acted upon and used intelligently by the jury.
It was error for the court to allow the instruction for robbery since there was no allegation of any force being used by defendants other than that of a pistol; and the State's evidence was to the effect only that defendants exhibited a pistol and that Phil Dear thought the defendants were officers of the law in Claiborne County.
Therefore, the case at bar is a case where the defendants are guilty of robbery with firearms or are not guilty of robbery at all. The jury obviously did not believe the testimony of the confessed bootlegger, who was the State's chief witness, to the effect that the defendants used or exhibited pistols. If they had so believed, they would have found the defendants guilty as charged. It is submitted that the verdict of guilty of robbery operated to acquit the defendants of the charge of robbery with firearms and since there is no evidence to support the verdict of guilty of robbery, because of the lack of evidence of the use of force, the defendants should be discharged.
IV. It was prejudicial error for the bailiff to discuss the case with the jury and to refuse to transmit the request of the jury for further instructions to the judge.
It is submitted that the bailiff was without authority to have any conversation with the jury during their deliberations other than to say, "I will report to the court", and it is submitted that it was error for the bailiff to refuse to transmit the request for further instructions to the judge.
V. There is no property right in liquor or vehicles used to transport it.
Section 2618 Code 1942 states that no property rights shall exist in any person, natural or artificial, or be vested in them in any intoxicating liquors prohibited by this chapter from being manufactured, etc. nor shall any property rights exist in such persons of vehicles, automobiles, etc. used in transportation of such illegal liquors.
It seems altogether reasonable to interpret Section 2618 as meaning just what it says. If it is better that property rights should exist in illegal liquors, then the legislature, it is submitted, should revise Section 2618 so to provide. As the law stands now, however, we submit that no property rights exist in any illegal intoxicating liquors or in vehicles used in the transportation thereof.
VI. The verdict was against the overwhelming weight of the evidence. The State charge the defendants with armed robbery, setting forth that the defendant robbed Phil Dear of a truck, six cases of whiskey, and the sum of $290.00 in Hinds County, Mississippi.
The jury brought in a verdict of guilty of robbery and not a verdict of guilty of robbery with firearms. By the testimony of the State's own witness, Phil Dear, it is clear that the only force which was alleged to have been used by the defendants to put the State's witness in fear of immediate injury to his person was the allegation by Dear that the defendants exhibited deadly weapons. Dear stated that he was not struck by the defendants; that they did not threaten to strike him; that they did not shove him or manhandle him in any way; that they did not even so much as curse him. Obviously, the jury believed the testimony of the defendants to the effect that they did not exhibit any deadly weapons since the jury did not find the defendants guilty of robbery with firearms. Upon what then could the jury have based its verdict of guilty of robbery without firearms? The State's witness stated that he was always in fear while he was transporting illegal whiskey; that he thought the men were officers of Claiborne County, although he did not ask them and was not told as much. It is clear that he did not offer any resistance or decline in any way to do as he was asked by the defendants and that he gave up his truck and whiskey with his only protest being in the form of an offer of a bribe to let him go.
In order to make out the element of fear of immediate injury to the person, it was incumbent upon the State to show that the defendants did so place Phil Dear in fear of immediate injury to his person. We submit that Phil Dear was placed in no more fear of immediate injury to his person than he already experienced by virtue of his own act of engaging in the transportation of illegal whiskey. In view of these facts, it is submitted that if the jury did not believe (as apparently they did not) that the defendants exhibited any deadly weapons in the transaction, there was no basis upon which a conviction of robbery without firearms could be maintained.
It is submitted that the taking of the truck could not be the basis of a conviction of robbery since there was never any intention to permanently deprive Phil Dear of the possession of his truck. The actual acts of the defendants subsequent to the taking of the truck manifest an intention to retain the truck only long enough to remove the load from it and to return the truck to its owner, Phil Dear. How could the intent of the defendants be clearer? Phil Dear lost the use of his truck for only a few hours. It was given back to him in good condition. Certainly with all the facts as brought out even by the State's witnesses, it is apparent that there was never any actual intent to permanently deprive the owner of his truck. Therefore, the truck could not be the subject of robbery. George H. Ethridge, Acting Attorney General, for appellee.
It seems to be the principal argument of the appellants that there could be no robbery on the proof because intoxicating liquors are not property in the laws of Mississippi.
I have not found where the Supreme Court of this state has expressly decided this question but it has been settled in many other courts. See Ray v. Commonwealth of Kentucky, 66 A.L.R. 1297, 230 Ky. 656, 20 S.W.2d 484; Burgess v. Maryland, 75 A.L.R. 1471, 155 A. 153, and the case notes appended to this last decision beginning at page 1479. In Ray v. Kentucky, supra, it was held: "Contraband liquor may be the subject of larceny or robbery." At page 1302 of the A.L.R. report in the course of the opinion the court cited People v. Kilpatrick, 79 Colo. 303, 245 P. 719, and other cases, saying: "The purpose of this act was to limit civil rights, not criminal liability; to prevent the use of the law as a weapon of offense by the lawbreaker, not to make one crime a shield for the protection of the perpetrator of another. To all demands for possession of contraband, or damages for its conversion, it returns its fiat, `no property'; to the thief who seeks its shelter it says, `no asylum'".
Counsel also raised the question of whether the venue in the Second District of Hinds County was properly proved, contending in his brief that the statute providing that where prosecution is begun in one county the state cannot prosecute in another county until the prosecution is terminated in the first county would make the trial void. I think that the present robbery was a continuous crime from the beginning of the pursuit of Dear by the appellants until the crime was finally consummated in the Second District of Hinds County. It seems to me that it is beyond cavil that a crime may be committed in more than one county where the acts constituting the crime are continuous from one county to another. Suppose, for instance, that a robber starts to rob a person in one county and the person sought to be robbed is fleeing to escape robbery and the robber pursues him to another county and by force and violence consummates the crime originally intended. The crime begins when the effort begins actively to carry it into execution and where that assault is pursued to consummation. The statute provides that a crime may be prosecuted in any county where it is partly committed in one county and partly in another is Section 2429 Code 1942. The taking of the liquor involved in this prosecution and the truck that contained it started in Claiborne County but the liquor was not removed from the truck in that county but was removed from the truck in Hinds County and turned over in the Second District of Hinds County to Warren for whose benefit the robbery was being conducted and who instigated the crime by inducing the appellants to commit it.
In Point VI counsel argues that the verdict is against the overwhelming weight of the evidence. I think the crime is established by practically undisputed evidence as one of the appellants testified admitting the robbery and the other confessed to the officers while in jail, admitting his participation in the robbery, seemingly throwing the blame for the robbery on Snooks Warren who seems to have induced the two appellants to act for him on the assurance that nothing would come of it.
Appellants, Robert Earl Passons and J.T. Boyette, were jointly indicted with two others by the Grand Jury for the second district of Hinds County at the September 1948 term on a charge of robbery with firearms. At the regular February 1949 term of said Court, only the appellants were put on trial, resulting in a verdict of guilty of robbery and sentence thereon. From the judgment rendered, they appeal.
A series of events culminated in the robbery on account of which this prosecution was instituted. On March 9, 1948, Phil Dear, accompanied by a Negro boy, went from his home in Rankin County to Louisiana to obtain a load of liquor. They were traveling in a Chevrolet truck. They secured the liquor, and came back through Vicksburg, where they lay over until 10:00 or 10:30 o'clock that night. They left via Highway 61. When they approached Port Gibson, a car drove up behind them and blew its siren. Dear pulled his truck to the side of the road and stopped. Passons demanded of Dear his invoices. Dear and his companion were terrified, claiming that Passons exhibited a gun, but finally he found the invoices and delivered them. Dear and his companion were transferred to the car, with Passons on the back seat, and another defendant driving the same, and appellant, Boyette, driving the truck. This occurrence was in Claiborne County.
With the truck leading the way, they turned around and proceeded to the intersection of Highway 18, and thereafter in an easterly direction along said highway. Most of the time the truck was in sight. After 4 or 5 miles, they had a flat on the car, and had to stop to fix it. The truck discovered that the car was not following, and returned to the disabled car. After the tire had been repaired, the two vehicles proceeded in the order theretofore followed. Finally, they came near the town of Utica and stopped. Boyette and the other defendant took the Negro boy, L.J. Barnes, in the car and went to Utica. They left Dear and Passons with the truck. At this time, Dear claimed to have given $290 for a ransom not to take the boy off. On the return, the same two defendants drove off in the truck, leaving Dear and Barnes in the custody of Passons. When these two came back, the truck, minus the cargo of liquor, was delivered to Dear. All of the acts around the Town of Utica occurred in the Second Judicial District of Hinds County.
Dear and his companion went to the City of Jackson, where they reported the incident to the police. Subsequently, the appellants were taken into custody and freely admitted their participation, claiming that the episode had been planned by all of the defendants. Passons testified on the trial, and in effect corroborated the state's version, except that he denied the use of a gun or guns, which, he said, was unnecessary. Dear and his companion affirmed that guns were used, and that this fact induced fear on their part.
Appellants assign a number of errors which we will take up in the order argued in their brief.
Their first proposition is that if the crime of robbery was committed, it occurred in Claiborne County and not in the Second District of Hinds County.
(Hn 1) Appellants, in their statements, admitted a plot to hijack this liquor. They went to Vicksburg, picked up the trail, and lay in wait until the Dear truck started out. They followed and stopped the truck as mentioned above. Had they deprived Dear of his truck at that point, and left him stranded, undoubtedly the proper venue would have been Claiborne County. Evidently they did not desire to consummate the act at that place, for they kept Dear in their custody, and during the trip, the truck was in his sight and presence most of the time. The plan was hijacking — robbing a bottlegger of his liquor — in view of the return of the truck after the theft. The liquor was actually taken near Utica, with the final consummation in the Second Judicial District of Hinds County. Under Section 2429, Code of 1942, the Second Judicial District of Hinds County was the proper venue.
The second proposition is that where a prosecution is begun in one county, the State cannot prosecute in another until the first prosecution is terminated.
This assignment grows out of these circumstances: (Hn 2) About a week after the trial, appellants made a motion to set aside the verdict and judgment because this prosecution had been initiated in the First Judicial District of Hinds County. Hinds County has two districts, and in matters of jurisdiction, these districts must be treated as two counties. Isabel v. State, 101 Miss. 371, 58 So. 1. Hinds County also has a county court and the County Judge presides over that court in both districts. The County Attorney presented an information in the county court. In the caption appeared these words: "County Court July Term A.D. 1948, First Judicial District, Hinds County". But, in the information, he averred that he was "duly empowered to inform of offenses committed within" Hinds County, and then charged that the defendants "in said county" committed the robbery. On the preliminary hearing, the county judge bound the appellants over to await the action of the grand jury of the Second Judicial District. That order has a recitation "and the court being advised in the premises". From the language of the order, it must be presumed that the County Judge inquired into the matter and was satisfied that the offense was committed in the Second District. Besides, the state's evidence established the venue in the Second Judicial District.
We hold that this preliminary proceeding did not constitute a beginning of the prosecution in the First District of Hinds County, within the meaning of Section 2429, supra.
The facts of this case distinguish it from Coleman v. State, 83 Miss. 290, 35 So. 937, 64 L.R.A. 807, 1 Ann. Cas. 406. There the mortal wound was inflicted in Coahoma County and the death resulted in Quitman County, and the Grand Jury of Quitman County returned an indictment for manslaughter. After arrest and plea, that court entered a nolle prosequi. Subsequently the grand jury of Coahoma County returned an indictment for murder, and the case was tried there. This court held that jurisdiction had attached in Quitman County and that court should have proceeded to a final determination of the matter. Nor is our conclusion out of harmony with Atkinson v. State, 132 Miss. 377, 96 So. 310.
(Hn 3) The third proposition complains of error in the state's instructions which follow the indictment, naming the truck, the liquor, the $290, "or any part thereof".
But the test in robbery is whether or not any of the property named in the indictment was taken by violence, force or fear; and we do not think this assignment is well taken.
The fourth proposition assigns error in the bailiff's discussing the case with the jury and refusing to transmit their request for further instructions.
This complaint came out of these circumstances: (Hn 4) Some time after the jury had gone to the room for deliberation, one of them asked the bailiff if the judge would further instruct them if liquor had any legal property value. The bailiff said he did not think the judge would give further instructions, that they had their instructions. But before he could say that he would see the judge, the door was shut, and the jury said nothing further. The bailiff did not mention the matter to the judge.
No meddling with, or intent to influence, the jury was shown. The inquiry did not make a direct request, but called for the bailiff's opinion as to whether the judge would give additional instructions. Bailiffs should make reports to the judge, when requested, and never give their opinions about anything involved in a case. We are unable to see how this incident could have caused any harm.
The fifth proposition is that there are no property rights in liquor or vehicles used to transport it. (Hn 5) The argument is that both the liquor and the truck were contraband, and the taking of such would not constitute a crime.
It is true that, by the provisions of Section 2618, Code of 1942, there are no property rights in intoxicating liquor, or in motor vehicles used in violation of the chapter on intoxicating liquor. But the purpose of this statute is to disqualify any person, unlawfully in possession of liquor or motor vehicles used in connection therewith, from asserting a right to their recovery, or for damages for their seizure. Undoubtedly, it is not the purpose to abridge the state of its power to punish persons who steal liquor, or rob persons and take their liquor.
In Crane v. State, 157 Miss. 548, 128 So. 579, 582, it was contended that Crane could not be guilty of burglary, for the larceny intended was to steal liquor, and there were no property rights in liquor. The court said: ". . . of course, they (intoxicating liquors) have a property value, and are not included in the prohibitive statute defining their nonproperty status when kept for sale or unlawful use."
Contraband liquor may be the subject of larceny or robbery. Ray v. Commonwealth of Kentucky, 230 Ky. 656, 20 S.W.2d 484, 66 A.L.R. 1297; Burgess v. Maryland, 161 Md. 162, 155 A. 153, 75 A.L.R. 1471; and the many cases there cited.
The sixth proposition contends that the verdict was contrary to the overwhelming weight of the evidence.
The argument is that, because the jury found the appellants guilty of mere robbery rather than robbery with firearms, they did not believe the deadly weapons were used. But, as has been heretofore said, the statements of the appellants coincided in most particulars with the evidence of the state. About the only discrepancy between the evidence of appellant, Passons, on the trial, with that of the state, was concerning the use of firearms. He admitted that he had a gun, but had unloaded it, and did not use the same because it was unnecessary. It was shown that these appellants had borne a good reputation prior to the commission of this offense. We are inclined to the view that their previous good reputation caused the jury to throw the mantle of charity over them, as sometimes happens when a jury finds an accused guilty of manslaughter when the proof sustains murder. Under their own version, appellants were guilty of robbery.
The seventh proposition complains of error because of the modification of instructions.
(Hn 6) The court gave instructions for the state covering both robbery with firearms and simple robbery. One of the instructions complained about was an effort to define a reasonable doubt, and for that reason, was bad. This court has repeatedly condemned such efforts. The other instructions as modified undertook to bring them in harmony with the state's instructions. Besides, by their other instructions, the appellants obtained a fair and full statement of the law applicable to their case. We find no harmful error in this respect.
Affirmed.