that if the police did not have probable cause the defendants must be acquitted. The jury found probable cause and this finding, in essence a mixed question of law and fact, will not be disturbed by the Court. In submitting this question to the jury, the defendants were given every advantage. This instruction was completely helpful to defendants. It redounded only to their benefit and not to their prejudice. It certainly was not beneficial to the Government.
The actions of these two defendants on the day in question represented, to the trained police observers, the classical method of holding up a bank. Nelson stood near the door with the shotgun to hold off anyone who interfered with the intended holdup. Bostic, with his pistol, could readily take care of the teller. This was especially true since this was a relatively small branch office. However, defendant Nelson says there must be more. He says that since neither he nor Bostic made any demand upon the teller to give the money, to hold up her hands, or announced that it was a "stickup", the Government has failed to establish proof of intent to commit a crime within the bank. He says that failing such proof, both defendants must be acquitted. They were charged in two counts of the indictment with conspiracy, and in the second count, with entering the bank with intent to commit a felony. From all the facts and circumstances, the jury was entitled to find that there was an unlawful agreement and that they intended to rob the bank.
In support of his contention that there must be a positive overt act on the part of the defendants, such as a threat, an oral command, or some such similar incident, before a jury may find intent to commit a robbery, counsel has offered no decisional law which supports this proposition, and this Court refuses to enunciate such a principle.
The defendants were convicted after a full and thorough trial and the judgment of the jury will not be disturbed.
And now, to wit, this 14th day of July, 1966, for the reasons set forth in the foregoing Memorandum Opinion, it is ordered, adjudged and decreed that defendants' Motions for New Trial or Judgment of Acquittal be and they are hereby denied.
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