Henderson v. State

Supreme Court of Alabama

Henderson v. State

55 So. 816, 172 Ala. 415, 1911 Ala. LEXIS 207

CourtSupreme Court of Alabama

DecidedJune 15, 1911

StatusPublished

Cited by14 cases

This text of 55 So. 816 (Henderson v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Henderson v. State, 55 So. 816, 172 Ala. 415, 1911 Ala. LEXIS 207 (Ala. 1911).

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Opinion

MoCLELLAN, J.

Conviction of robbery.

This court, in Thomas’ Case, 91 Ala. 34, 36, 9 South. 81, said, in the exhaustive consideration of the elements and nature of this crime: “The offense is against both the person and against the property. * * * The three essential elements of the offense are: (a) Felonious intent; (b) force, or putting in fear, as a means of effectuating the intent; (c) and, by that means, a tailing and carrying away of the property of another from his person or in his presence” (lettering supplied). Its doctrine has been since approved in these decisions: Morris’ Case, 97 Ala. 82, 12 South. 276; Higgs’ Case, 113 Ala. 36, 21 South. 353; Brown’s Case, 120 Ala. 342, 25 South. 182; Hill’s Case, 145 Ala. 58, 40 South. 654.

The indictment here questioned (omitting formal parts) reads: “The grand jury of said county charges that before the finding of this indictment Rufus Henderson and Kirk McKinney feloniously took a lot of [417]*417flour, garden seed, cheese, crackers, and a jar of blackberries, of the value of one dollar, the personal property of J. B. Teague, from his wagon and against his will, by violence to his person or by putting him in such fear as unwillingly to part with the same, against the peace and dignity of the state of Alabama.”

The indictment is materially, in matter of substance, defective, in that it omits to aver, in any form or manner, that the taking — feloniously and under the influence of force or fear — of the property was from the person of Teague. The offense of robbery, in vital element, being against the person, as well as the property, it is imperative that the indictment either pursue the Code form wherein the term “person” is employed, or else that the averments particularly describe such a talcing as, in legal effect, amounts to a talcing from the person;, viz., in the presence of the party offended against, and who then had the property “under his direct-, physical, personal control” — a taking not necessarily from actual contact of the body, but from under his personal protection. — Thomas’ Case, supra; 2 Bish. Or. Law, §§ 1177, 1178.

The averment is that the property was taken “from his wagon.” This allegation signifies the place from which the goods were taken, but does not, in any sense, refer the act to the person, as that is understood in legal parlance, when robbery is the crime intended to be charged.

The indictment would not sustain a judgment of conviction of robbery. The motion in arrest was, hence, erroneously overruled.

Beversed and remanded.

Simpson, Anderson, and Mayfield, jj., concur.

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MoCLELLAN, J.

Conviction of robbery.

This court, in Thomas’ Case, 91 Ala. 34, 36, 9 South. 81, said, in the exhaustive consideration of the elements and nature of this crime: “The offense is against both the person and against the property. * * * The three essential elements of the offense are: (a) Felonious intent; (b) force, or putting in fear, as a means of effectuating the intent; (c) and, by that means, a tailing and carrying away of the property of another from his person or in his presence” (lettering supplied). Its doctrine has been since approved in these decisions: Morris’ Case, 97 Ala. 82, 12 South. 276; Higgs’ Case, 113 Ala. 36, 21 South. 353; Brown’s Case, 120 Ala. 342, 25 South. 182; Hill’s Case, 145 Ala. 58, 40 South. 654.

The indictment here questioned (omitting formal parts) reads: “The grand jury of said county charges that before the finding of this indictment Rufus Henderson and Kirk McKinney feloniously took a lot of [417]*417flour, garden seed, cheese, crackers, and a jar of blackberries, of the value of one dollar, the personal property of J. B. Teague, from his wagon and against his will, by violence to his person or by putting him in such fear as unwillingly to part with the same, against the peace and dignity of the state of Alabama.”

The indictment is materially, in matter of substance, defective, in that it omits to aver, in any form or manner, that the taking — feloniously and under the influence of force or fear — of the property was from the person of Teague. The offense of robbery, in vital element, being against the person, as well as the property, it is imperative that the indictment either pursue the Code form wherein the term “person” is employed, or else that the averments particularly describe such a talcing as, in legal effect, amounts to a talcing from the person;, viz., in the presence of the party offended against, and who then had the property “under his direct-, physical, personal control” — a taking not necessarily from actual contact of the body, but from under his personal protection. — Thomas’ Case, supra; 2 Bish. Or. Law, §§ 1177, 1178.

The averment is that the property was taken “from his wagon.” This allegation signifies the place from which the goods were taken, but does not, in any sense, refer the act to the person, as that is understood in legal parlance, when robbery is the crime intended to be charged.

The indictment would not sustain a judgment of conviction of robbery. The motion in arrest was, hence, erroneously overruled.

Beversed and remanded.

Simpson, Anderson, and Mayfield, jj., concur.

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55 So. 816, 172 Ala. 415, 1911 Ala. LEXIS 207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henderson-v-state-ala-1911.

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