Montgomery v. State , 169 Ala. 12 ( 1910 )

MAYFIELD, J.

The defendant was indicted, jointly with one James Davis, for robbery of one Wallace Aderhold. The money taken was described in counts 1 and 2 as “one half dollar, one quarter dollar, and four dimes, in silver coinage of the U. S. A.” The third count, instead of describing the money as “silver coinage of the U. S. A.,” described it as “the silver coin of the realm, of the value of one dollar and fifteen cents.” The property, being money, was sufficiently described in each count of the indictment, and the indictment was, therefore, not subject to demurrer upon this ground. — Nevill's Case, 133 Ala. 99, 32 South. 596; Grant v. State, 55 Ala. 201.

Robbery is an offense against the person as well as against the property of the person robbed. The person robbed in this case being rightfully in possession of the money when it was taken (having been sent by his father to collect and bring the money to him), and he being the person from whom it was taken, the indictment properly charged the property to. be that of the minor. Nor does it constitute a material variance, such as to prevent a conviction, if the proof shows or tends to show that the legal title to the property was in the father of the minor robbed. — Danzey v. State, 126 Ala. 15, 28 South. 697; Dorsey v. State, 134 Ala. 553, 33 South. 350. The child in this case being in the undisputed possession and control of the property, he had such an interest in and right to it as to support a conviction, though the legal title was in the father. — People v. Nelson, 56 Cal. 82.

The court did not err in allowing the boy alleged to have been robbed to testify that he could not see Miller Draper from the place of the robbery. This evidence was admissible as describing the scene of the crime, and as tending to show that the boy was alone, and npt accompanied at the time by Miller Draper, who had left Anniston with him.

The court did not err in allowing George Bryant, a witness for the state, to testify that he had seen Wallace Aderhold, the boy robbed, on the d.ay of the alleged robbery, nor in allowing him to testify ivhen and where he saw him, as it tended to corroborate the evidence of the boy, and. to show his presence at the time and place at which he claims to have beén robbed. Nor was there error in allowing the same witness to testify that he saw some “darkies” in the bushes on the roadside on the same occasion, and that accused, was one of them Such evidence was clearly competent and relevant^ It was likewise, competent for Miller Draper to testify that he could not see the place where Wallace was robbed from where he stopped, and for this purpose to testify where he stopped,- as it tended to corroborate Wallace, and as it appeared that this witness had left town with Wallace, and had accompanied him to a point near where the robbery took place, but that he was not within sight of him at the time.

We can see no possible relevancy (except to show an alibi) of the evidence sought to be elicited by the questions propounded by the defendant to Ellaline Green, “Did or did not the accused visit you about July 9th,' and, if so, how long did he remain in Anniston.” Counsel stated that this evidence was not for the purpose of showing an alibi, but that it was for the purpose of showing that the accused came to Anniston on a visit to his aunt; that he did not come for the purpose of robbery, and was merely “knocking about” Anniston as a visitor. No proper answer to these questions would, have proved or tended to prove this conclusion as to the purpose for which the accused was at Anniston. The court, therefore, properly declined to allow such testimony for such purpose.

It was competent for the state to prove that the accused, when arrested, had one shoe, and the boy Davis another, constituting a pair, which the • accused and Davis were shown to have had in their possession shortly before the robbery.

Charge 5 was properly refused. It was not necessary to the defendant’s guilt, as the charge implies, that he actually participated in the crime. If he encouraged or procured, or was instrumental in causing, the crime to be committed, he would be guilty, though he did not actually participate in the crime.

Charge 7 has been repeatedly condemned in this court, upon the ground that it is improper for the court to instruct the jury as to which of two conflicting theories they should adopt; it being an invasion of their province.

Charges 9, 10, and 11 were the general affirmative charges, and were properly refused upon the evidence in this case, which was ample to support a conviction

Charge 19 was properly refused, as under the evidence in the case it was immaterial whether the boy had been emancipated by his father before the time of the robbery, or that the property taken belonged to him by gift, devise, etc.

Charge 16 required that the jury should not convict unless each juror was so convinced of the guilt of the defendant that he would act upon that decision in a matter of the highest concern and importance in his own interests, etc. Charges like this at one time -were held proper by this court; but the later decisions have held that such charges are properly refused, because argumentative. — Amos v. State, 123 Ala. 50, 26 South. 524; Rogers v. State, 117 Ala. 9, 22 South. 666.

Finding no error, the judgment of the city court is affirmed.

Affirmed.

Dowdell, C. J., and Simpson and McClellan, JJ., concur.