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Anderson v. State

Supreme Court of Mississippi, Division A
Jan 1, 1934
168 Miss. 424 (Miss. 1934)


No. 30789.

January 1, 1934.


Persons who shot man who opened door and then entered store and shot others and then left store held not guilty of robbery (Laws 1932, chapter 328).


Indictment charging robbery by assault by use of pistol with intent to take personal property of another included charge of assault (Laws 1932, chapter 328).


In robbery prosecution, defendants' guilt of assault held for jury (Laws 1932, chapter 328).

APPEAL from circuit court of Coahoma county.

HON. WM. A. ALCORN, Judge.

Sam Anderson and another were convicted of robbery, and they appeal. Reversed and remanded.

I. Semmes Luckett, Pat D. Holcomb and E.W. Smith, all of Clarksdale, for appellants.

The state failed to prove the essential elements of the crime charged in the indictment.

There must be present two elements in order to constitute an act an "attempt" to commit a particular offense: first, a design and endeavor to commit the particular offense; and, second, some direct overt act done towards its commission.

Section 793, Mississippi Code of 1930; 8 R.C.L., p. 277; State v. Wade, 102 Miss. 711, 59 So. 880; Miller v. State, 130 Miss. 730, 95 So. 83.

The state proved the use and exhibition of a deadly weapon, proved an overt act towards the commission of some crime, but the state wholly failed to prove an intent to commit the particular crime charged in the indictment and to prove an overt act towards the consummation of that particular crime.

16 C.J., p. 115; Cunningham v. State, 49 Miss. 685; Jeff v. State, 37 Miss. 321; Stokes v. State, 92 Miss. 415, 46 So. 627.

W.D. Conn, Jr., Assistant Attorney-General, for the state.

The intent of an individual may be gathered from his acts or statements, or may be inferred from a given set of circumstances.

The statement, "Put 'em up," as related by Wong Sing, is sufficient to show the purpose for which these defendants came to the store. Whether something occurred which changed them from their original purpose becomes a matter beside the question. Having come to the store armed with a deadly weapon and from his statement, showing an intent to rob, it makes no difference whether they were diverted from their original purpose by reason of encountering more persons than they expected or by some other reason. They came there for robbery with fire arms. Their acts and conduct clearly show an intent to rob and clearly show an overt act in that direction, although it be conceded that they took nothing as a result of their unlawful act.

A defendant cannot state one ground of objection in the court below and switch to another ground in the Supreme Court.

Duckworth v. Town of Taylorsville, 142 Miss. 440, 107 So. 666; Peters v. State, 158 Miss. 530, 130 So. 695; Pickett v. State, 164 Miss. 142, 143 So. 692.

I recognize that it is a rule of this court that generally proof of other crimes is not allowed. But there are certain definite and well recognized exceptions to this general rule. One of those exceptions is where it is necessary in the identification of the accused.

Norris v. State, 154 Miss. 190, 122 So. 391.

The appellants were indicted and convicted under chapter 328, Laws 1932, which provides that "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 to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery and, upon conviction, shall be punished by death if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at death, the court shall fix the penalty at imprisonment in the penitentiary for any term not less than three years." The indictment, omitting the formal parts, alleges that the appellants "did, then and there, in and upon one Wong Fong, wilfully, unlawfully, feloniously, and violently an assault did make, by the use and exhibition of a certain deadly weapon, to-wit: a pistol, with the wilful and felonious intent and attempt of them, the said Sam Anderson and George Evans, to then and there wilfully, feloniously, and violently take, steal, and carry away the personal property of the said Wong Fong, from the person and in the presence of the said Wong Fong, and against the will and by violence to the person of the said Wong Fong, and by putting him, the said Wong Fong, in fear of immediate injury to his person, by the use of and by exhibiting a deadly weapon, to-wit: a pistol, they, the said Sam Anderson and George Evans, did, then and there, wilfully, unlawfully, violently, and feloniously attempt to rob, take, steal, and carry away."

The evidence discloses that two Chinamen, Wong Fong and Wong Sing, were engaged in the mercantile business. Between seven and eight o'clock on the night of September 12, 1932, there were present in the house in which the mercantile business was conducted the two Chinamen and a negro by the name of Louis Ewing. The house was lighted, but closed. The appellants came to the back door and called, "Hey;" Wong Sing inquired who was there, and the appellants replied, "Nobody to hurt you," and asked for a package of Chesterfield cigarettes. Wong Sing procured the cigarettes, went to the door and opened it, whereupon one of the defendants said "Put 'em up," and immediately one of them shot Wong Sing, who fell out of the door onto the ground. The appellants then entered the store and commenced to shoot Wong Fong, when Ewing, the negro, interfered, and was also shot by them. None of them was killed. Immediately upon the cessation of the firing, and without more ado, the appellants left the store and disappeared for the time being.

Two of the assignments of error are that the court below erred in refusing to grant appellants a directed verdict and in overruling their motion for a new trial. One of the grounds of the motion is that the verdict is not supported by the evidence. In order to support a conviction under the statute, it must appear that the appellants committed the assault with the felonious intent to take personal property of Wong Fong from him, or in his presence. The evidence wholly fails to disclose such an intention. The appellants seem to have done all they intended to do, and to infer from the evidence a further intent would be the merest speculation. The evidence does not support the verdict, but the request for a directed verdict was properly refused, for the allegations of the indictment include a charge of assault, and the evidence would sustain a conviction therefor.

Reversed and remanded.

Summaries of

Anderson v. State

Supreme Court of Mississippi, Division A
Jan 1, 1934
168 Miss. 424 (Miss. 1934)
Case details for

Anderson v. State

Case Details

Full title:ANDERSON et al. v. STATE

Court:Supreme Court of Mississippi, Division A

Date published: Jan 1, 1934


168 Miss. 424 (Miss. 1934)
151 So. 558

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