Summary
In Robinson v. State, 180 Miss. 774, 178 So. 588 (1938), the defendant was charged with stealing ten brass fire hose nozzles, the property of E.L. Bruce Company, Inc. The nozzles had stamped upon them the trademark "Simmons."
Summary of this case from Griffin v. StateOpinion
No. 33045.
February 7, 1938.
1. LARCENY.
An allegation of ownership and name of owner must be set forth in indictment for larceny unless other facts are averred to explain and excuse omission.
2. LARCENY.
When name of owner is stated in indictment for larceny proof must show that thing allegedly stolen was property of person named as owner.
3. CRIMINAL LAW.
Where an expression such as "I do not think there are any others who handle the same," relating to tangible physical things, is referable to degree of positiveness of witness' recollection, that evidence is receivable for what it is worth, but when it may signify lack of any personal knowledge, or only an impression otherwise gained by hearsay, common repute, and the like, evidence is in substance no evidence.
4. LARCENY.
Where brass hose nozzles in possession of junk dealer were so badly melted and battered that they could not be identified as nozzles which had been stolen except by presence of trade-mark, statement of witness that he did not think that there were any other companies who handled same equipment with that trade-mark was insufficient to prove absence of other persons handling same articles in that vicinity, and was therefore insufficient to sustain conviction for larceny of nozzles of company named in indictment.
APPEAL from Jones County Court. HON. ROY P. NOBLE, Judge.
A.S. Scott, of Laurel, for appellant.
The lower court should have granted the appellant a new trial simply because the testimony was not sufficient to convict this appellant of the crime charged in the indictment. It matters not that the jury decided that from the evidence in the case the appellant was guilty, even to the exclusion of every other reasonable hypothesis consistent with appellant's innocence. The law reports are full of many cases where the jury has returned verdicts of guilty on circumstantial evidence, and the Supreme Court promptly says that even so, yet, the record shows such a state of facts that the Supreme Judges cannot allow these verdicts to stand. We submit that in the case at bar the prosecuting witness' testimony is so surcharged with untrustworthiness that this court will not allow his testimony to convict this appellant.
Nichols v. State, 164 So. 20; Section 592, Code of 1930; Jolly v. State, 174 So. 244.
If there is a case in the reported cases of Mississippi adjudicated cases touching grand larceny on circumstantial evidence, where the property in question was not actually identified, as the exact property in question, or so proven to be such beyond every reasonable doubt, from the evidence introduced in the case, that this Supreme Court allowed such verdict to stand, we have not been able to find it, not a single one.
The court erred in sustaining the state's objection to competent and proper evidence offered by the defendant.
22 C.J. 259, sec. 262; Gould v. Norfolk, 57 Am. Dec. 50, 9 Am. Dec. 137, 50 N.E. 618; Tay. Ev., sec. 1442; Attorney-General v. Hitchcock, 1 Ex. R. 94; Lodge v. State, 122 Ala. 99, 26 So. 210, 82 A.S.R. 23.
The court erred in overruling the motion of defendant for a peremptory instruction to find the defendant "not guilty" at the close of the testimony offered by the state.
If it is true that there is not one word of testimony connecting the defendant, appellant herein, with having stolen the brass in question belonging to E.L. Bruce Company, then we take it that under the law in this state the defendant should have been discharged. We most respectfully submit that the property or brass in question introduced in evidence was never identified as the property of E.L. Bruce Company, that all the witness White testified was that the broken brass presented to him was similar to the same kind of brass which his company owned.
We submit that mere similarity of the things stolen is not sufficient to withstand motion for peremptory instruction where "similarity" is the only circumstantial evidence in the whole case upon which to base a verdict of conviction.
Ezell v. State, 130 So. 487.
Circumstantial evidence is always insufficient to convict a person of crime, where, assuming all to be proved which the evidence tends to prove, some other hypothesis may still be true, for it is the actual exclusion of every other reasonable hypothesis which invested mere circumstances with the force of truth; whenever the evidence leaves it indifferent which of several hypothesis is true, or merely establishes some finite probability in favor of one hypothesis rather than another, such evidence cannot amount to proof, however great the probability may be.
Sorrells v. State, 94 So. 209.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
That a conviction will stand even on the uncorroborated testimony of an accomplice alone, see Boutwell v. State, 165 Miss. 16, 143 So. 479, where the authorities are collated. And this is true, even though the accomplice has been convicted of the same offense.
Gates v. State, 160 Miss. 479, 135 So. 189.
There is a further qualification of this rule, and that is that an accomplice's testimony should not be improbable or contradictory on its face.
Boutwell v. State, 165 Miss. 16, 143 So. 479; Matthews v. State, 148 Miss. 696, 114 So. 816; Rutledge v. State, 157 So. 907; Carter v. State, 166 So. 377.
On the authorities above cited laying down the rules with reference to the testimony of accomplices, as applied to the situation here, the state submits that this court is now foreclosed by its own decisions from entering into the exclusive domain of the jury in passing upon the credibility of this witness, Barlow, and substituting its judgment in that respect for the jury's.
Appellant complains of the court's action in respect to rulings on evidence offered by him and to which it sustained objections. We need only observe, with reference to this complaint, that no record was made of what this testimony would have been, had the witness answered, and hence there is nothing for this court to review.
Reece v. State, 154 Miss. 862, 123 So. 892; Mooreman v. State, 131 Miss. 662, 95 So. 638; Tucker v. State, 103 Miss. 117, 60 So. 65; LeBarron v. State, 107 Miss. 663, 65 So. 648; Temple v. State, 165 Miss. 798, 145 So. 749.
The state witnesses, with no particular marks of identification on the equipment, could not honestly attempt to identify the equipment further than they did.
Appellant argues the "Rhode Island hen" case as being controlling here. Ezell v. State, 130 So. 487. That case, along with Sorrells v. State, 130 Miss. 300, 94 So. 209, seems to be rather persuasive upon the argument of appellant. But, after all, where circumstantial evidence is relied on, each case must be governed by its particular facts, and we say, on the facts of this case, the circumstances were such as to show, beyond any sort of doubt, that the brass recovered was the battered remains of the nozzles and couplings of the E.L. Bruce Company and that it was proper for the court to overrule the motion to exclude.
Appellant was indicted, tried, and convicted of the larceny of "ten brass hose nozzles of the personal property of E.L. Bruce Company, a corporation." An allegation of ownership and the name of the owner must be set forth in an indictment for larceny, unless facts be averred therein which will explain and excuse the omission; and when the name of the owner is stated, as here, the proof must show that the thing charged to have been stolen was the property of the person so named as owner. Sixteen brass hose nozzles were stolen from E.L. Bruce Company, Incorporated, some time between Saturday noon and early the following Monday. The nozzles had stamped upon them the trade-mark "Simmons." On Monday afternoon there were discovered in the place of business of a junk dealer, in the same town, many pieces of brass hose nozzles, the number not being definitely shown in the record, which had been partly melted and badly battered out of shape and broken, but there was still discernible upon some of them the trade-name "Simmons." Upon inquiry it was found, as a fact, that this brass had been sold to the junk dealer that morning by a man named Barlow, and that Barlow had acted as the agent therein of appellant, the brass so sold having been delivered to Barlow by appellant for that purpose early Monday morning.
There was no witness who had seen appellant at or near the Bruce Company plant; there were no tracks to be followed or other proof of that nature. Because of the damaged condition of the nozzles, witnesses were unable to identify them, or the pieces thereof, as those stolen from the Bruce Company except solely by the aforementioned trade-mark. And to close this gap, it was attempted to be proved that there was no other person, firm, or corporation in that vicinity who had Simmons fire equipment. If there were no other persons, firms, or corporations within the reasonable or probable range of the activities of thieves of this sort of property, measuring from the junk store where sold, who owned or had missed Simmons brass hose nozzles, this was a tangible physical fact capable of positive proof; and while it may have required time, trouble, and some expense to make that character of proof, the rules respecting competent and dependable evidence are not to be relaxed on that account.
The only witness who was interrogated upon the stated subject was asked the question: "Are there other companies who handle the same equipment?" To this the witness answered: "I do not think there are any others who handle the same." This was an issue capable of positive proof, as already mentioned, and the proof was required, therefore, to be so made. A witness who testifies on the quoted terms obviously commits himself less conclusively than by a direct and positive affirmation. 2 Moore on Facts, p. 1412. When such an expression is referable to the degree of positiveness of the witness' recollection, the evidence is receivable for what it is worth; but when it may signify that the witness has never had personal knowledge of the particular fact, but has a more or less definite impression otherwise gained, as by hearsay, common repute, or the like, such evidence is in substance no evidence at all, when tangible physical facts are being inquired about. 1 Wig. Ev., pp. 1060-1062. It cannot be told, under this record, whether the quoted answer is to be placed within the first or whether in the second of the above categories; wherefore it is insufficient to sustain the issue to which it was directed. The gap in the evidence respecting ownership of the property found in appellant's possession was not closed, as it was essential to do, and the verdict and judgment cannot be allowed to stand. Compare Ezell v. State, 158 Miss. 343, 130 So. 487, and cases therein cited.
Reversed and remanded.