
    Lenzy v. State
    No. 40138
    May 28, 1956
    87 So. 2d 572
    
      Alexander, Feduccia & Alexander, Cleveland, for appellant.
    
      
      John JEL. Price, Jr., Asst. Atty. Gen., Jackson, for appellee.
   Hall, J.

Lonnie Lenzy was jointly, indicted with Angus E. Bolton and Horace Grisby for the robbery of Tom Levingston of $170.00. A severance was granted and Lenzy was tried separately and convicted and sentenced to the penitentiary for a term of fifteen years, from which he appeals.

There is no substantial dispute in the evidence. It shows that the appellant was employed in the freight warehouse of the C. B. & Q. Railroad in Chicago. His employment was part time only, and in his spare time he was engaged in shining shoes. It seems that his shoeshine stand was on the sidewalk. He owned a 1951 Plymouth automobile which was kept parked in the street at the curb adjacent to his shoeshine stand and was used as a waiting spot for customers who desired to be served. He became acquainted with Grisby at this sboesbine stand and in tbe latter part of May 1955 Grisby approached him with reference to renting the car to make a trip to Mississippi, where he desired to visit his father who lived in Greenville. They agreed on a price of $50.00 for the trip with Grisby paying all .expenses. .Lenzy was born in Georgia and had never been to Mississippi and he was to make the trip with Grisby. When they were ready to leave Grisby informed Lenzy that he wished, to go. by Gary, Indiana, and pick up a friend who had a brother living in Mound.Bayou, Mississippi. They left Chicago late on the last Friday night in May and went to Gary, Indiana, where they picked up Bolton. The two of them paid Lenzy the $50.00 agreed on for the trip and they all departed for Mississippi. Each one drove a part of the time. They arrived in Memphis, Tennessee, late Sunday with a bursted exhaust pipe and they remained over until Monday to get this repaired in Memphis. They left Memphis about 3 or 4 P.M. on, Monday and came on to Mississippi, travelling on U. S. Highway No. 61. They needed gasoline when they arrived at Shelby, Mississippi, and Grisby bought the gasoline for the car and made inquiry as to where they could obtain some whiskey. They had been drinking some along the way, but none of them were drunk. They were told that there was a liquor store on Highway 61 about 2 miles north of Cleveland, Mississippi. They had driven all of Friday night and Saturday night and were sleepy. Bolton was driving the car when they left Shelby and Grisby was riding on the front seat with him. Lenzy was riding on the back seat and went to sleep. Bolton and Grisby found the liquor store and turned the car around and headed it back north and parked it by the side of the highway about 200 yards from Levingston’s liquor store. Grisby and Bolton both had guns but Lenzy did not know this and he had no gun himself. Grisby and Bolton got out of the car and went in the liquor store and held up and robbed the proprietor of approximately $176.00. Lenzy was asleep on the hack seat of the car during all of this procedure. They came hack to the car after the robbery, having bought a half-pint of liquor at the beginning of the robbery. They threw this bottle on the back seat and it struck Lenzy and awakened him. They then drove north and in the meantime Levingston had notified the authorities of the robbery. The officers set up a road block just south of Clarksdale and the three of them were apprehended there añd were shortly carried back to Levingston’s liquor store above Cleveland. Levingston promptly identified Bolton and Grisby as the two who had robbed him but he said that he had never seen Lenzy before. All three of the prisoners were searched and Bolton and Grisby had more money on them than the amount taken in the robbery. Lenzy had $100.00 on his person which he stated consisted of some money that he already had before leaving Chicago amounting to between $45.00 and $55.00 plus the $50.00 which Grisby and Bolton had paid him.

Neither Grisby nor Bolton testified in the case. Lenzy testified that he knew nothing of the robbery, was asleep at the time, did not know that either of his companions possessed a gun and did not hear them talk about any robbery or make any plans toward a robbery and he denied fully all connection with it. His statement is reasonable and is not contradicted by any of the physical facts or by any testimony in the case. His only crime seems to be . that he rented his car to two criminals and was riding on the back seat with them when they were caught. A proper request was made for a peremptory instruction, which was refused by the trial court and the case submitted to the jury. We have carefully examined the record and we are of the opinion that the requested peremptory instruction should have been granted as there was no evidence of any nature, to connect the appellant with this crime. The judgment of the lower court will therefore be reversed and .tbe appellant discharged.

Reversed and appellant discharged.

McGehee, G. Jv and Lee, Ethridge and Gillespie, JJ., concur.  