Opinion
No. 32674.
June 14, 1937.
1. CRIMINAL LAW.
In grand larceny prosecution, instruction that accused were guilty if they were present aiding, abetting, and assisting in feloniously taking, stealing, and carrying away property in question was not reversible error.
2. LARCENY.
Accused were guilty of grand larceny, even if there were no conspiracy, if accused were present and aided, abetted, and assisted in commission of the crime.
3. CRIMINAL LAW.
Overruling objection to closing argument of counsel for state, unsupported by proof, that accused's alleged coconspirators had joined named gang and gone to parts unknown, was prejudicial error, since argument carried clear intimation that flight of alleged coconspirators warranted inference of coconspirators' guilt and consequent inference of accused's guilt, and proof of coconspirators' flight would be incompetent.
4. CRIMINAL LAW.
That accused's coconspirators had joined gang and gone to parts unknown was inadmissible over objection, in view of rule that acts done and declarations made by one conspirator after completion or abandonment of criminal enterprise are inadmissible as evidence against a coconspirator.
APPEAL from the circuit court of Rankin county. HON. D.M. ANDERSON, Judge.
Rush H. Knox, of Jackson, for appellants.
If there is any principle well settled in Mississippi, it is that it is an error for the prosecuting attorney to use language in his argument to the jury which might be construed on the failure of the accused to testify. The intent of the real meaning of the prosecuting officer is immaterial. This court has repeatedly held that to comment on the failure of the defendant to testify is an error.
In the case at bar there were four persons jointly indicted for stealing the money of the witness Hamilton. These two appellants were present in court on trial and Condia and Dillon were not present, and then to have the district attorney go out of the record and make the remarks that he did make with reference to Condia and Dillon having fled, we contend is a reversible error.
Gibbs v. State, 167 Miss. 598; Pickens v. State, 129 Miss. 191; Smith v. State, 112 Miss. 182; Cole v. State, 75 Miss. 142; Johnson v. State, 63 Miss. 316.
It is our contention that the three instructions offered for and on behalf of the State should not have been given, for the reason that there was no conspiracy in this case.
We submit that there were no circumstances proven in this case that would have a tendency even to prove a conspiracy.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
A conspiracy, like any other controverted fact, may be shown by circumstances, as well as by direct evidence thereof. This court has repeatedly stated this to be true.
Street v. State, 43 Miss. 2; Osborne v. State, 99 Miss. 410, 55 So. 52; Pickett v. State, 139 Miss. 529, 104 So. 358; Byrd v. State, 165 Miss. 30, 143 So. 852; Dixon v. State, 169 Miss. 876, 154 So. 290.
The testimony is sufficient, it occurs to the writer, to justify the statement made by the district attorney. It was true, likewise, that Condia and Dillon were not on trial. These were admitted facts. There was no contradiction of that anywhere in the record. The attorney, in arguing to the jury, has a right to draw all reasonable inferences from proven facts. Consequently, the argument objected to appears to be based on facts and inferences to be drawn from those facts. The argument certainly could not be distorted into being classified as one commenting upon the failure of one of the defendants to testify.
As to the right of the district attorney to argue inferences from facts, the State submits that the cases of Callas v. State, 151 Miss. 361, 118 So. 137; Bufkin v. State, 134 Miss. 116, 98 So. 455, and Harwell v. State, 129 Miss. 858, 93 So. 366, are authorities which uphold the character of argument indulged in the case at bar.
It takes a clear showing of the abuse of the privilege of argument for the court to reverse a case.
Schillings v. State, 151 Miss. 361, 118 So. 137; Jacobs v. State, 103 Miss. 622, 60 So. 723.
E.R. Sanderford, Hobson Jones, and two other parties, were jointly indicted in the circuit court of Rankin county on a charge of grand larceny. Appellants, E.R. Sanderford and Hobson Jones, were jointly tried, convicted, and sentenced to serve a term of three years in the state penitentiary.
The testimony offered by the State, if believed, was amply sufficient to sustain the verdict; and there was no reversible error in the instruction to the jury to the effect that the appellants were guilty if they were present aiding, abetting, and assisting in feloniously taking, stealing, and carrying away the property in question. We think counsel for appellants is in error in the contention that there was no evidence of a conspiracy between these parties; but, if there were no conspiracy, the appellants would still be guilty if they were present and aided, abetted, and assisted in the commission of the crime.
Appellants also assign as error certain statements made by counsel for the State in his closing argument before the jury. The language complained of, as set forth in a special bill of exceptions, was as follows: "Gentlemen of the jury, Condia and Dillon are not on trial at this time. We have made inquiry about them and no one seems to know where they are. We therefore are inclined to believe that Condia and Joe Dillon have joined the Bird gang. They are gone to unknown part."
There was no evidence in the record that the co-defendants, Joe Dillon and George Condia, had joined the "bird gang," and flown to parts unknown; but, if such were the fact, the State, upon objection, would not have been permitted to prove it. Pulpus v. State, 82 Miss. 548, 34 So. 2. The acts done and declarations made by one conspirator, after the completion or abandonment of the criminal enterprise, are inadmissible as evidence against a coconspirator. Lynes v. State, 36 Miss. 617; Simmons v. State, 61 Mass. 243. The above-quoted statements of the district attorney of facts not proved or provable in the trial of the appellants carried the clear intimation to the jury that the flight of the alleged coconspirators warranted the inference of their guilt, and the consequent inference of the guilt of all the alleged conspirators. We think the argument of counsel was prejudicial to the rights of appellant, and, for the error in overruling the objection thereto, the judgment of the court below will be reversed, and the cause remanded.
Reversed and remanded.