Webster v. State

111 So. 749, 146 Miss. 682, 1927 Miss. LEXIS 216

• Court: Mississippi Supreme Court
• Decided: March 21, 1927
• Docket: No. 26028.
• Status: Published

Opinion

Smith, C. J.,

delivered the opinion of the court

The appellant was tried and convicted on an indictment alleging that he — “in and upon one W. H. McEwen and one Roscoe McEwen did unlawfully and feloniously make an assault and then, the said W. H. McEwen and Roscoe McEwen, did then and there feloniously put in fear of some immediate and great injury to their persons, and in their presence and against their will did feloniously take, steal, and carry away the sum of two hundred dollars good and lawful -money of the United States the personal property of the said W. H. McEwen and Roscoe McEwen, contrary to the statute in such cases made and provided, and against the peace and dignity of the state of Mississippi. ’ ’

A demurrer to this indictment was overruled. The ground of the demurrer is that:

“The indictment fails to charge that the assault made by Paul Webster upon W. H. and Roscoe McEwen was made with intent to take, steal, and carry away the money set forth in the indictment.”

The indictment is not for making an assault with intent to steal, but is, under section 1361, Code of 1906 (section 1097, Hemingway’s Code), for feloniously taking the personal property of another .in his presence, by putting him in fear of some immediate injury to his person.

The intent to steal which must be alleged and proven. (Woods v. State [Miss.], 6 So. 207; Jones v. State, 95 Miss. 121, 48 So. 407, 21 Ann. Cas. 1137), is with reference to the property taken, the intent to steal which is here 'sufficiently alleged, for an allegation that a person “did feloniously take, steal, and carry away property,” of course, includes the idea that he took the property with the intention of stealing it.

The form of the indictment here used is that approved by Mr. Bishop in his Directions and Forms (2d Ed.), section 933.

Affirmed.