Opinion
No. 41951.
November 6, 1961.
1. Criminal law — evidence — admitting judgment of conviction of another jointly accused with defendant was error.
Where two or more persons are jointly indicted for same offense, but are separately tried, judgment of conviction against one is not competent on trial of other, since his plea of guilty or conviction is no evidence of guilt of accused.
2. Criminal law — evidence — admitting statement of another jointly accused, made out of defendant's presence, and after the crime, that he and defendant committed crime was error.
In prosecution for grand larceny, admission of evidence that one jointly indicted with defendant, but tried separately, had made statement between date of crime and trial to the effect that he and defendant committed crime was error.
Headnotes as approved by Arrington, J.
APPEAL from the Circuit Court of Forrest County; STANTON HALL, J.
Lawrence D. Arrington, Hattiesburg, for appellant.
I. The Court erred in overruling defendant's motion for a peremptory instruction of not guilty at the conclusion of all testimony offered by the State of Mississippi. Hogan v. State, 127 Miss. 407, 90 So. 99; Jackson v. State, 118 Miss. 602, 79 So. 809; Sorrells v. State, 130 Miss. 300, 94 So. 209.
II. The Court erred in permitting the State to introduce certain prejudicial testimony in the presence of the jury over the objections of defense counsel. Pickens v. State, 129 Miss. 191, 91 So. 906.
G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. Cited and discussed the following authorities: Blade v. State, 240 Miss. 183, 126 So.2d 278; Mitchell v. State, 171 Miss. 4, 156 So. 654; Pickens v. State, 129 Miss. 191, 91 So. 906; Rutland v. State, 170 Miss. 650, 155 So. 681; 98 C.J.S., Witnesses, Sec. 596 note 13.
Appellant was jointly indicted with William D. Rucker for grand larceny. Appellant was tried separately, and appeals from a judgment of conviction.
The State offered Rucker as a witness against appellant. While Rucker was on the stand on direct testimony, the State pleaded surprise and was granted the right to cross-examine Rucker. While cross-examining Rucker the district attorney brought out that Rucker had entered a plea of guilty to the crime and proved that Rucker had made an out-of-court statement that he, Rucker, and the appellant had stolen the property described in the indictment. Appellant was not present when this extra-judicial statement was alleged to have been made. All this was over the objection of appellant.
(Hn 1) It was error to inform the jury that Rucker had entered a plea of guilty. This Court holds that where two or more persons are jointly indicted for the same offense, but are separately tried, a judgment of conviction against one of them is not competent on the trial of the other inasmuch as his plea of guilty or conviction is no evidence of the guilt of the accused. Pickens v. State, 129 Miss. 191, 91 So. 906. (Hn 2) It was also error for the court to admit evidence that Rucker made a statement sometime between the date of the crime and the trial to the effect that he, Rucker, and appellant committed the crime. Such statement, not having been made in the presence of appellant, was not competent against appellant. Grantham v. State, 167 Miss. 221, 149 So. 798, and authorities therein cited.
For these errors, the case is reversed and remanded.
Reversed and remanded.
Lee, P.J., and McElroy, Rodgers and Jones, JJ., concur.