Summary
In State v. Correro, 231 Miss. 155, 94 So.2d 911 (1957), the trial court sustained a motion for a directed verdict at the end of the prosecution's case and the State appealed, alleging error in directing the verdict.
Summary of this case from State v. InsleyOpinion
No. 40360.
May 6, 1957.
1. Appeal — motion to exclude state's evidence and direct acquittal — appeal by State did not lie from order sustaining.
Appeal by the State did not lie from action of Circuit Court in sustaining motion of defendant, after the State rested its case, to exclude the evidence and direct jury to acquit him on ground that proof failed to show him guilty of crime charged. Sec. 1153, Code 1942.
Headnote as approved by Roberds, P.J.
APPEAL from the Circuit Court of Coahoma County; E.H. GREEN, Judge.
John H. Price, Jr., Asst. Atty Gen., Jackson, for appellant.
I. The lower Court erred in sustaining appellee's motion for a directed verdict upon the conclusion by the State of the presentation of its case. Alford v. State, 193 Miss. 153, 8 So.2d 508; Dukes v. State, 181 Miss. 704, 181 So. 518; Garvin v. State, 207 Miss. 751, 43 So.2d 209.
Roberson, Luckett Roberson, Clarksdale, for appellee.
I. The State does not have the right to prosecute this appeal. City of Jackson v. Harland, 112 Miss. 41, 72 So. 850; City of Pascagoula v. Cunningham, 141 Miss. 604, 106 So. 886; City of Pascagoula v. Delmas, 157 Miss. 619, 128 So. 743; State v. Adams, 123 Miss. 514, 86 So. 337; State v. Ashley, 194 Miss. 110, 11 So.2d 832; State v. Blackburn (Miss.), 34 So.2d 199; State v. Bourdon, 126 Miss. 877, 89 So. 769; State v. Brooks, 102 Miss. 661, 59 So. 860; State v. Sisk, 209 Miss. 174, 46 So.2d 191; State v. Willingham, 86 Miss. 203, 38 So. 334; Sec. 1153, Code 1942.
II. The Trial Court did not err in directing a verdict for appellee because the proof showed that appellee was never invested with title to the money. Courtney v. State, 174 Miss. 147, 164 So. 227; Foster v. State, 123 Miss. 721, 86 So. 513; Hanna v. State, 168 Miss. 352, 151 So. 370; Jones v. State, 223 Miss. 812, 79 So.2d 273; Ware v. State, 186 Miss. 533, 191 So. 678.
(Hn 1) Correro, the appellee, was indicted and tried for obtaining property under false pretenses. When the State rested its case Correro moved the court to exclude the evidence and direct the jury to acquit him on the ground the proof had failed to show him guilty of the crime with which he was charged The court sustained that motion. From that action the State undertakes to appeal to this Court under Section 1153, Miss. Code 1942.
Such an appeal by the State does not lie. State v. Brooks, 102 Miss. 661, 59 So. 860. In that case this Court said:
"When the state closed its evidence, the court excluded the testimony, upon the motion of defendant, and directed the jury to acquit the defendant. `No question of law is presented by this record, but a decision of the court merely passing upon the sufficiency of the proof to sustain a conviction. In such state of case there is no warrant of law for the taking of an appeal by the state.' This is the language of Judge Truly, speaking for the court, in the case of State v. Willingham et al., 86 Miss. 203, 38 So. 334. The statute construed in that case was section 39, Code 1892. Section 40, Code 1906, under which this appeal is prosecuted, is a transcript of the law of 1892.
"Experimental appeals by the state are not authorized by the statute, and this court is not required to read the evidence taken in the trial court to ascertain whether, taken as a whole, the jury would have been warranted in finding the defendant guilty."
The rule has been recognized and reannounced in State v. Moore, 103 Miss. 699, 60 So. 731; City of Jackson v. Harland, 112 Miss. 41, 72 So. 850; State v. Adams, 123 Miss. 514, 86 So. 337; State v. Bourdon, 126 Miss. 877, 89 So. 769; State v. Ashley, 194 Miss. 110, 11 So.2d 832; State v. May, 208 Miss. 862, 45 So.2d 728; State v. Sisk, 209 Miss. 174, 46 So.2d 191; State v. Jackson, 217 Miss. 412, 64 So.2d 341; State v. Wingo, 221 Miss. 542, 73 So.2d 107.
Some of the cited cases expressly state the rule is applicable even though the decision of the lower court involves a mixed question of law and fact.
The appeal in the case at bar is dismissed.
Appeal dismissed.
Hall, Kyle, Arrington and Gillespie, JJ., concur.