Opinion
No. 41348.
November 23, 1959.
1. Larceny — sentence — sentencing of defendant — a matter within discretion of lower court.
In view of testimony, in prosecution for larceny of 157 pounds of pecans of value of 22 cents per pound, sentencing defendant to a four-year term in state penitentiary was matter within discretion of Lower Court.
2. Larceny — evidence — sustained conviction.
Evidence sustained conviction for larceny of 157 pounds of pecans of value of 22 cents per pound.
Headnotes as approved by Hall, J.
APPEAL from the Circuit Court of Lamar County; SEBE DALE, Judge.
Wm. V. Murry, Hattiesburg, for appellant.
I. The Court erred in overruling the appellant's request for peremptory instruction at the close of the testimony.
II. The verdict of the jury was contrary to the overwhelming weight of the testimony.
III. The judgment and sentence of the Court was grossly excessive.
IV. The Court erred in overruling appellant's motion for a new trial.
G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. There is ample credible evidence in this record upon which the jury was justified in finding this defendant guilty and that the verdict of the jury and the judgment of the Court should not be disturbed. Dean v. State, 173 Miss. 254, 160 So. 584, 162 So. 155; Pittman v. State, 236 Miss. 592, 111 So.2d 415.
Albert Watson was indicted jointly with David Saucier for the larceny of 157 pounds of pecans of the value of $.22 per pound. They were tried jointly and both of them were convicted and from this conviction Albert Watson appeals. Both of them reside in Hattiesburg but the larceny of the pecans was committed on the farm of Henry Hennington a few miles west of Hattiesburg in Lamar County. The Hennington farm was in charge of Lee Otha McGill who lives on the Hennington place and looks after the pecan orchard.
McGill testified that he did not hire either of the defendants to pick up pecans on the farm but his system was to permit persons to pick up the pecans on shares, keeping one-third of what they picked up.
Counsel for appellant earnestly insists that he is so thoroughly convinced that the appellant is an innocent man, that we ought to reverse this case and discharge the appellant, and in his brief he contends that the lower court erred in overruling his request for a peremptory instruction at the close of the testimony, that the verdict is contrary to the overwhelming weight of the testimony and that the judgment and sentence by the court was grossly excessive and that the lower court erred in overruling his motion for a new trial.
(Hn 1) As to the excessiveness of the sentence, the lower court sentenced the appellant to a four-year term in the state penitentiary and in view of the testimony this was a matter in the discretion of the lower court.
We will discuss the other three contentions together. Mr. Hennington testified that he did not employ either Saucier or Watson to pick up pecans and did not give either of them permission to remove pecans from his place in Lamar County. He said that Lee Otha McGill had worked for him about eleven years and lives on the pecan farm and that a part of his duty is to pick up pecans.
McGill testified that he works for Hennington and lives on the Lamar County place and looks after the pecan orchard and that he did not at any time hire either of the defendants to pick up pecans. He said that he missed the pecans off his back porch and went to town the next morning to try to catch the thief. He said that Albert Watson and his girl friend came to his home the night of the theft and stayed about one hour and left. He testified that Albert said that no one was there but his girl friends. The next morning he missed the pecans from his back porch where they had been placed and he went to Hattiesburg to the pecan plant and waited. After a while Albert appeared with the pecans and claimed that David Saucier got them the night before. Saucier is a brother-in-law of McGill. The police were called and came to the pecan plant.
Doyle Harvison, a policeman in the City of Hattiesburg, testified that he came to the pecan plant on being called and found Watson there in possession of the pecans and he carried Watson and McGill to the police station and questioned them and that Watson told him that David Saucier got them and that they had planned to get them at a meeting on Mobile Street in Hattiesburg and had agreed that Watson and his girl were to go in the house and keep McGill busy while Saucier got the pecans.
After they were questioned at the police headquarters in Hattiesburg, they notified the Sheriff of Lamar County. The sheriff came and got Watson and Saucier and he had Baker, a game warden, with him and on the way back to Purvis they talked about the theft of the pecans and Albert told the Sheriff of Lamar County that they made it up on Mobile Street in Hattiesburg and took Albert's girl friend along and Watson and his girl friend kept Lee Otha occupied while David got the pecans. David went with them but he never did show up on the scene. Both the defendants went together and neither denied planning and taking the pecans but discussed it freely with the sheriff. On this testimony the State rested.
For the defense, David Saucier testified that he is the brother-in-law of Lee Otha McGill and that they are not on good terms. Saucier said that he had earned the pecans by picking up pecans that week on the farm and that he went to the place on the night in question and got the pecans out of a small house near the residence of Lee Otha and he denied getting them off the back porch of McGill, but the pecans which were found in Watson's possession in Hattiesburg were definitely identified as aforesaid, and were taken from McGill's back porch.
Albert Watson denied all criminality in the matter and claimed that he was merely an innocent victim of circumstances. His girl friend, Mary Lee Jones, testified that they went together to McGill's home and talked about an hour with McGill while David Saucier waited for them on the outside.
(Hn 2) From the foregoing it is definitely clear to us that the jury was abundantly warranted in finding the appellant guilty and that the lower court was correct in refusing the requested peremptory instruction and in overruling the motion for a new trial. Instead of the verdict of the jury being contrary to the overwhelming weight of the testimony, as contended by appellant, we are of the opinion that the record in this case abundantly supports the verdict of the jury and the judgment of the lower court is therefore affirmed.
Affirmed.
McGehee, C.J., and Holmes, Ethridge, and Gillespe, JJ., concur.