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ROY RANDLE HARPER v. STATE OF MISSISSIPPI

JULY 27, 1983

ROY RANDLE HARPER
v.
STATE OF MISSISSIPPI



BEFORE WALKER, DAN LEE AND ROBERTSON

WALKER, PRESIDING JUSTICE FOR THE COURT:

This is an appeal from the Circuit Court of the First Judicial District of Hinds County, wherein the appellant was indicted, tried, and convicted of armed robbery.

On December 16, 1981, the appellant and one Michael DeBussi entered Blackwell Chevrolet Company in Jackson, Mississippi, and asked to test drive a car. Randall E. Murff, a salesman for Blackwell, talked to the two men for a few minutes and then accompanied them as they test drove a new car. Mr. Murff sat in the front passengers seat while DeBussi drove.

 During the course of the test drive, DeBussi stopped the car at an intersection. The appellant, who was in the backseat, pulled a pistol and instructed Mr. Murff to hand over his wallet. After Mr. Murff gave his wallet to DeBussi, he was instructed to get out of the car. Mr. Murff then crawled out of the car and watched as the two men drove away.

 Later that day Harper and DeBussi were arrested in Vicksburg, Mississippi. The appellant was armed with a loaded .380 calibre pistol while DeBussi was carrying a .22 calibre pistol. On December 18, 1981, Mr. Murff identified both Harper and DeBussi from a police lineup as the ones who had robbed him.

 After a trial for armed robbery, the jury returned a verdict of guilty as charged. The trial judge found Harper to be a habitual criminal as defined by Mississippi Code Annotated section 99-19-81 (1972) and sentenced him under that statute to a term of forty-four years in the custody of the Mississippi Department of Corrections without parole, probation, reduction, or suspension of sentence. From this judgment and sentence Harper appeals and assigns as error the following: "The verdict is contrary to the overwhelming weight of the evidence and the law."

 The appellant's argument in this regard is that the state did not prove all of the essential elements of the crime. It is recognized in this state that robbery consists of three elements:

 "(1) Felonious intent;

 (2) Force or fear as a means of effectuating that intent; and

 (3) By that means taking and carrying away the property of another from his person or presence." Crocker v. State, 272 So. 2d 664, 665 (Miss 1973).

 The appellant contends that the state failed to prove the second element as Mr. Murff, the victim of the crime, never stated that he was afraid. He testified as follows:

 Q. All right. Mr. Murff, describe for the Jury your state of mind at the time Harper cocked that gun and pointed it to you.

 A. Well, frankly, it made me mad, but I - my better judgment ...


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