State v. Lyons

184 A. 488, 37 Del. 423, 7 W.W. Harr. 423, 1936 Del. LEXIS 33

• Court: New York Court of General Session of the Peace
• Decided: March 12, 1936
• Docket: Indictment for assault with intent to rob, No. 46
• Status: Published

Opinion

Speakman, J.:

Under the evidence in the case, the Court would not be justified at this time in directing a verdict for the defendant. The defendant may, of course, renew his application at the close of the testimony, if he desires.

The defense was an alibi.

At the conclusion of the testimony in the case, the defendant renewed his motion for binding instructions to the jury on the same ground as before stated; citing Brill’s Ency. of Crim. Law, Vol. 1, § 94, pp. 184, 185 and 186; State v. Tate, 145 Mo. 667, 47 S. W. 792; Garrity v. People, 70 Ill. 83; State v. Hanson, 49 Mont. 361, 141 P. 669.

In reply, Mr. Duffy contended that there was sufficient evidence which would warrant the jury in finding that the assault was made with the intent to rob; citing State v. Eaton, 3 Harr. 554; Brill’s Ency. of Crim. Law, § 413, p. 698; 54 C. J., pp. 1094 and 1095; State v. Iacavone, 85 N. H. 207, 155 A. 701; Burke v. State, 22 Ala. App. 107, 114 So. 71; State v. Simon, 317 Mo. 336, 295 S. W. 1076; Tyson v. U. S., 7 Okl. Cr. 433, 122 P. 733; People v. Franklin, 46 Cal. App. 1, 188 P. 607; Hernandez v. State, 60 Tex. Cr. R. 382, 131 S. W. 1091, at page 1092.

SPEAKMAN, J.:

A specific intent to rob might be inferred by the jury, as a matter of fact, from the circumstances of the case. The motion for binding instructions to the jury is denied on the authority of State v. Eaton, 3 Harr. 554.