Summary
In Phillips v. State, 177 Miss. 370, 171 So. 24 (1936), the state was permitted to show that shortly after the crime occurred, the witness/victim had told someone else that he had been robbed.
Summary of this case from Young v. StateOpinion
No. 32164.
December 14, 1936.
1. ROBBERY.
Evidence held to sustain conviction of robbery.
2. CRIMINAL LAW.
Defendants were not entitled to a reversal of conviction on ground that evidence failed to show that circuit court of county had jurisdiction where offense was committed near county line but evidence was conflicting as to county in which offense was committed (Code 1930, sec. 1176).
3. CRIMINAL LAW.
In robbery prosecution, admission of alleged victim's statement made shortly after the occurrence to the effect that he had been robbed held reversible error where it was admitted that there was a fight between one of defendants and alleged victim and only point in controversy was whether victim was robbed during fight.
APPEAL from the circuit court of Scott county. HON. D.M. ANDERSON, Judge.
Frank F. Mize, of Forest, for appellants.
We direct the court's attention to assignment of error No. 1, in which we hold that the lower court erred in overruling defendant's objection to certain evidence and motion to exclude the evidence of prosecuting witness, Russell. The particular evidence objected to and sought to be excluded is as follows: Q. When you got up there to Mr. Jesse Lee Lewis' house, did you or not tell him about being robbed? A. Yes, sir, I did.
In connection with this evidence the state introduced the witness, Jim Lee Lewis to corroborate Russell. We think that this was very prejudicial to the defendant. It has been uniformly held by this court that it is error to permit the state to bolster up its evidence by showing that they had testified the same way in another trial, or by showing witness' statements to others out of court in the absence of the defendant.
Johnson v. State, 32 So. 49; Brown v. State, 66 So. 975; Jeffcoats v. State, 67 So. 56.
It will be observed that the evidence of the appellants tends to show strongly that this trouble between Russell and Phillips occurred at the forks of the road about one quarter of a mile over the line in Smith county, while the state's testimony tends to show that the trouble occurred at the forks of the road about a quarter of a mile north of the Smith county line in Scott county. If, indeed, the trouble occurred in Smith county, the lower court was without jurisdiction.
Johnson v. State, 32 So. 49.
We think that the evidence in this case was wholly insufficient to warrant a conviction. The two appellants both testified that the trouble was nothing more than a fight between two drunk fellows, and to a great degree this theory is borne out by the testimony of Russell who claims to have been robbed. Wm. H. Maynard, Assistant Attorney-General, for the state.
Appellants' first assignment of error is that the lower court erred in overruling their objection to a statement made by Lawrence Russell that an hour or two after the robbery he told Jesse Lee Lewis that he had been robbed. This testimony was corroborated by the witness, Lewis. It will be noted that the judge, while allowing this testimony to go in, refused to allow either the witness, Russell, or the witness, Lewis, to testify as to the details of this conversation. Neither Russell nor Lewis stated who Russell said had robbed him, but merely testified as to the simple statement that Russell had said that he had been robbed.
We are inclined to the view that this statement of Russell occurred too long after the alleged robbery to constitute a part of the res gestae, but we do not think that it was prejudicial enough to warrant a reversal.
Sanders v. State, 158 Miss. 234, 130 So. 112; Bonds v. State, 164 Miss. 126, 143 So. 475.
A conviction will not be reversed because of admission of evidence which was clearly not prejudicial to defendant, although it may have been incompetent.
Marshall v. State, 123 Miss. 227, 85 So. 184; Lewis v. State, 132 Miss. 200, 96 So. 169; Goins v. State, 155 Miss. 662, 124 So. 785; Comings v. State, 163 Miss. 442, 142 So. 19; Wexler v. State, 167 Miss. 464, 142 So. 501.
Under section 1176 of the Code of 1930, where the evidence makes it doubtful in which of several counties the offense was committed "such doubt shall not avail to procure an acquittal of the defendant."
Hill v. State, 112 Miss. 375, 73 So. 66; Isabel v. State, 101 Miss. 371, 58 So. 1.
Evidence tending to prove guilt must be considered most favorably to the state in determining the propriety of refusal to direct a verdict of not guilty.
Redwine v. State, 149 Miss. 741, 115 So. 889; Pruitt v. State, 163 Miss. 741, 140 So. 683.
Appellants cannot complain that the verdict was against the weight of the evidence for the reason that they did not file a motion for a new trial.
Justice v. State, 170 Miss. 96, 154 So. 265; Sones v. State, 155 So. 188; Judon v. State, 155 So. 428; Bryant v. State, 157 So. 346.
Appellants were convicted in the circuit court of Scott county on a charge of robbery, and from this conviction and the sentence imposed, this appeal was prosecuted.
The testimony of Lawrence Russell, the party alleged to have been robbed, if believed, was sufficient to support the verdict of guilty. This witness testified that on a certain night in January, 1935, he and the two appellants left Morton, Miss., in a truck owned and operated by the appellant Beatty, for the purpose of attending a party several miles south of Morton; that at a point on the highway leading into Smith county the truck was stopped and all of them alighted therefrom; that while the witness was seated on the roadside, the appellant Phillips approached him from behind and struck him a severe blow on the head; that he grappled Phillips and was then struck another blow from behind which rendered him unconscious; and that when he regained consciousness the truck, the appellants, and thirty-nine dollars in money which he had on his person were gone. He further testified that the appellant Phillips knew he had this thirty-nine dollars when they left Morton. There was also testimony tending to show that the place where the assault occurred was at a cross-roads in Scott county near the Smith county line.
Appellants testified that on the trip in question the prosecuting witness, Russell, and the appellant Phillips took numerous drinks of whisky, and that when they stopped and alighted from the truck near the Scott county line they were very drunk; that Russell then claimed to have lost some money and accused Phillips of having taken it from him; that a dispute and serious fight ensued between them in which Beatty took no part; that as soon as the fight was over, Russell walked away from the scene and Phillips then boarded the truck, and he and Beatty returned to Morton. They testified that they did not know Russell had any money and denied taking any from him. There was testimony offered by the defense tending to show that the place where the fight occurred was in Smith county near the Scott county line.
There is no merit in the contention that the judgment of the court below should be reversed for the reason that the evidence fails to show that the circuit court of Scott county had jurisdiction. The evidence shows that the offense, if any, was committed near the Scott county line; but it is conflicting as to whether it was in Scott county or Smith county. Under section 1176, Code 1930, when the evidence leaves it doubtful in which of several counties the offense was committed, "such doubt shall not avail to procure the acquittal of the defendant." Isabel v. State, 101 Miss. 371, 58 So. 1; Hill v. State, 112 Miss. 375, 73 So. 66.
Over the objection of the appellants, the state was permitted to prove that shortly after the occurrence the witness, Russell, stated to a party living near the scene of the assault, that he had been robbed. It was error to permit the state to bolster the testimony of its witness by showing that he stated to others, out of court, that he had been robbed on the occasion in question. Johnson v. State, 80 Miss. 798, 32 So. 49; Brown v. State, 108 Miss. 478, 66 So. 975; Jeffcoat v. State, 108 Miss. 585, 67 So. 56; Ashford v. State, 81 Miss. 414, 33 So. 174; Anderson v. State, 82 Miss. 784, 35 So. 202, 203. It was admitted that there was a fight between the witness Russell and the appellant Phillips, and the only point in controversy was whether or not Russell was robbed during this fight, and, consequently, the admission of evidence of this statement made out of court was reversible error. It is suggested by the state that the rule that permits, in the case of rape, the introduction of evidence that the prosecutrix made complaint of having been raped would authorize the admission of the statement here involved. The admission of such evidence in the case of rape is an exception to the general rule. The reasons for this exception are set forth in the case of Ashford v. State, supra, and again in Anderson v. State, supra. In the latter case the court said that, "Ordinarily any and all statements made by a party assaulted after the commission of the crime is hearsay, and not admissible. An exception is made in the case of rape alone, but even in that case no statements made by the prosecutrix are admissible except her complaint that she has been ravished. . . . The exception in cases of rape is made upon the idea that outraged virtue will proclaim her wrong, and therefore silence might be considered as raising a suspicion of consent."
For the error indicated, the judgment of the court below will be reversed and the cause remanded.
Reversed and remanded.