Opinion
No. 55300.
February 5, 1986. Rehearing Denied March 12, 1986.
Appeal from Circuit Court, Forrest County, Richard W. McKenzie, J.
John H. Anderson, Hattiesburg, for appellant.
Edwin Lloyd Pittman, Atty. Gen. by Pat Flynn, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before PATTERSON, C.J., and SULLIVAN and ANDERSON, JJ.
At his trial for robbery in the Circuit Court of Forrest County, Mississippi, Johnny Ingram testified in his own defense that he had not stolen the purse in question and saw it for the first time when it was introduced into evidence at the trial. The jury believed the state's witnesses, and not Ingram, or the witnesses that testified in his behalf. From his conviction and sentence of fifteen (15) years in the custody of the Mississippi Department of Corrections, Ingram appeals.
The entire appeal is based on an assignment that the trial court committed reversible error by overruling a motion to dismiss or, in the alternative, a motion for a mistrial where the indictment alleged robbery by fear and the proof showed robbery by force only.
Ingram admits that the victim's testimony shows that she was afraid and shocked, but he contends that force, not fear, is what caused her to part with her purse. Ingram further admits that he was convicted of burglary in September of 1978.
The indictment reads that Johnny Ingram, on the 25th day of September, 1982,
[D]id unlawfully, willfully, and feloniously, commit an assault upon the person of one Karen Lowrey, a human being, by grabbing her and did feloniously put her in fear of immediate injury to her person and with the unlawful and felonious intent to steal did unlawfully, willfully, and feloniously, take, steal and carry away from the person of and in the presence of and against of (sic) the will of the said Karen Lowrey certain personal property to-wit: one navy blue shoulder purse containing twenty-six dollars ($26.00) in good and lawful money of the United States of America and of the personal property of Karen Lowrey. (emphasis added).
Mississippi Code Annotated § 97-3-73 (1972) defines robbery as,
Every person who shall feloniously take the personal property of another, in his presence or from his person and against his will, by violence to his person or by putting such person in fear of some immediate injury to his person, shall be guilty of robbery. (emphasis added)
The three essential elements of robbery are "felonious intent, force or putting in fear as a means of effectuating the intent, and by that means a taking and carrying away of the property of another from his person or in his presence." See Sykes v. State, 291 So.2d 697, 698 (Miss. 1974).
We find that this indictment was in the proper form, for as we said in Johnson v. State, 475 So.2d 1136 (Miss. 1985),
Rule 2.05, Miss. Uniform Criminal Rules of Cir. Court Practice sets out what form the indictment shall be in. It provides as follows: "The indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation against him. Formal or technical words are not necessary in an indictment, if the offense can be substantially described without them." (Emphasis in original).
Thus, it was for the jury to determine whether Karen's fear resulted in the taking of the purse. As stated in Jackson v. Griffin, 390 So.2d 287 (Miss. 1980),
The jury is the sole judge of the weight of the evidence and the credibility of the witnesses. Conflicts in the evidence are to be resolved by the jury, and before a reviewing court can interfere with the verdict, testimony must so strongly preponderate that the court can safely say it was overwhelmingly in favor of the appellant.
The indictment is sufficient to meet the test set forth in Johnson v. State, supra, and we are left only with the question for the jury to determine whether or not the robbery took place as the result of fear or force. The jury determined the question. The appeal is without merit, and we, therefore, affirm the conviction of sentence of fifteen (15) years.
AFFIRMED.
PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and HAWKINS, DAN M. LEE, PRATHER, ROBERTSON and ANDERSON, JJ., concur.