Opinion
No. 36654.
February 11, 1948.
1. CRIMINAL LAW.
Where a verdict was supported by direct, positive, and unequivocal testimony of prosecuting witness, even if there were nothing to corroborate him, a peremptory charge for defendant would have been improper.
2. CRIMINAL LAW.
Supreme Court cannot review a case on the ground that verdict is against the great weight of the evidence in absence of a motion for a new trial except when waived by the State by not raising the point on appeal.
APPEAL from the Circuit Court of Warren County.
Barnett, Barnett Jones, of Jackson, and Harry K. Murray, of Vicksburg, for appellants.
The proof did not make out case beyond reasonable doubt.
20 Am. Jur. 1107-1109, Sec. 1257.
The testimony as to finding the handkerchief should have been excluded.
Thornton v. State, 113 Ala. 43, 21 So. 356, 357; State v. McGuire, 84 Conn. 470, 80 A. 761; People v. Preston, 341 Ill. 407, 173 N.E. 383.
The action of the district attorney in asking the witness, Anderson, what he was in the penitentiary for was prejudicial error.
King v. State, 66 Miss. 502, 6 So. 188; Dabney v. State, 82 Miss. 252, 33 So. 973; Collier v. State, 106 Miss. 613, 64 So. 373; Hurd v. State, 137 Miss. 178, 102 So. 293; Parkinson v. State, 145 Miss. 237, 110 So. 513; Raines v. State, 81 Miss. 489, 33 So. 19; 20 Am. Jur. 287, Sec. 307; 16 C.J. 589.
The State did not make out its case beyond every reasonable doubt.
Keys v. State, 155 Miss. 574, 124 So. 789; Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; Stuart et al. v. State (Miss.), 64 So. 417; Nobles v. State, 154 Miss. 179, 122 So. 392; Love v. New York Life Ins. Co., 64 F.2d 829.
The defendants proved an alibi.
Ragsdale v. State, 12 Ala. App. 1, 67 So. 783; Ragsland v. State (Ala.), 192 So. 498; 15 Am. Jur. 14, 15, Secs. 314, 315; 1 Wharton's Criminal Evidence (10th Ed.), Sec. 333.
The verdict was against the overwhelming weight of the evidence.
Justice et al. v. State, 170 Miss. 96, 154 So. 265; Moore v. State (Miss.), 20 So.2d 96; Holmes v. State, 201 Miss. 509, 29 So.2d 312; McDougal v. State, 199 Miss. 39, 23 So.2d 920.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
In the trial of this case the defendants did not apparently seek to make a record of errors, objections and exceptions, as no objection was made to the introduction of any of the State's evidence, but defendants apparently relied on the fact that they had four witnesses whereas the State only had one witness with corroborating circumstances to dispute the testimony of the appellants. It appears that present here there is nothing at all except a conflict in the evidence. Mr. Bounds, the person robbed, was clear and emphatic in this testimony about the blow which was struck him by Anderson and the taking of his billfold by Moody and his wife after he was struck and is positive that he became unconscious while they were rubbing his face with a handkerchief and a piece of ice. He is corroborated about being abandoned near his home by the testimony of his wife and daughter, each of whom testified that he left home about twelve or one o'clock on Sunday and that they later saw him that night in the highway with a wound in his head, blood streaming down his face, and that he was not able to stand but was crawling. His testimony about the robbery is supported by the facts as testified to by the police about where they found at the scene a handkerchief marked with the letter M in the corner and a picture of Mr. Bounds. No objection was made to the introduction of this evidence nor to the introduction of any of the State's evidence. It is therefore a question of fact for determination by the jury, and the jury had a right to believe beyond a reasonable doubt that the appellants assaulted and robbed Mr. Bounds.
The question of alibi under Mississippi law is one for the jury.
See Singh v. State, 67 A.L.R. 129, and note.
In the absence of a motion for a new trial this Court will not consider an assignment of error that the proof is against the overwhelming weight of the evidence.
A careful analysis of the testimony shows that the jury acted within its lawful power and the evidence amply supports their verdict.
The verdict in this case is supported by the direct, positive and unequivocal testimony of the prosecuting witness, and even if there were nothing to corroborate him, a peremptory charge would be improper.
The argument that the verdict is against the great weight of the evidence might be serious had appellants made a motion for a new trial assigning that as a ground, but they wholly omitted to do so. The rule announced in Justice v. State, 170 Miss. 96, 154 So. 265, fourteen years ago, that we could not review a case on that ground in the absence of a motion for a new trial, has never been departed from, except when waived by the State by not raising the point on the appeal. For instance, in Owen v. State, 197 Miss. 561, 19 So.2d 822, the State did not mention the omission on the original submission but attempted to do so on a suggestion of error, and we held that we were not obliged on our own motion to raise the point on the original submission, and that the State could not for the first time do so on a suggestion of error. But, in the present case, the Attorney General has at once raised the point, and insisted upon it, wherefore the rule laid down in Justice v. State, must be followed.
Affirmed.