Summary
In Boutwell, we held that the court correctly refused to give such an instruction because `reasonable doubt' defines itself and needs no definition by the court.
Summary of this case from Anderson v. StateOpinion
No. 30271.
October 10, 1932. Suggestion of Error Overruled November 7, 1932.
1. CRIMINAL LAW.
Common-law rule that uncorroborated testimony of accomplice will support conviction of crime obtains in Mississippi.
2. ROBBERY.
In prosecution for robbery, testimony of accomplices, corroborated by numerous facts and circumstances, if corroboration is necessary, held sufficient to support conviction.
3. CRIMINAL LAW. In robbery prosecution, defendant's instructions, precluding conviction on testimony of impeached witnesses, held properly refused as singling out testimony of particular witnesses.
Instructions offered by the defendant, in substance, would have told the jury that the defendant could not be convicted on the testimony of named witnesses if the jury believed from the evidence that the named witnesses had been successfully impeached by trustworthy testimony on vital and material testimony and on material matters.
4. CRIMINAL LAW. In robbery prosecution, refusal of defendant's instructions precluding conviction on testimony of impeached witnesses, if error, held harmless, in view of another instruction.
Refusal of defendant's requested instructions precluding conviction on testimony of named witnesses if impeached on material matters, if such instructions were not erroneous, was harmless, in view of instruction that the law looks with suspicion and distrust on the testimony of an accomplice, and requires the jury to weigh the same with great care and caution.
5. CRIMINAL LAW.
Question involving admissibility of evidence, not raised and determined at trial, is not reviewable on appeal from conviction.
6. CRIMINAL LAW.
Instruction on equal guilt of accomplice, if peremptorily charging jury that robbery was committed, held not error, where commission of robbery was undisputed.
7. CRIMINAL LAW. In robbery prosecution, instruction on equal guilt of accomplice held not erroneous as calculated to confuse jury.
Instruction complained of charged jury, in substance, that, if they believed from evidence beyond reasonable doubt that robbery was committed by named person at a time when named person was present and assisting in delivering the pay roll to its proper destination, and that the defendant encouraged, aided, and abetted "in the same and shared in the fruits of said robbery, . . . then you are charged that under the law, the defendant herein was an accomplice and as such an accomplice, is just as guilty under the law as the" other parties.
8. CRIMINAL LAW.
Instructions in criminal case should be read together so as to make one consistent statement of applicable law.
9. CRIMINAL LAW.
Where governing principles of law are properly set out when considering all instructions together in criminal case, there is no error.
10. CRIMINAL LAW. In prosecution for robbery, instruction on conspiracy to commit robbery, containing statement that state is never required to prove "in express terms an agreement," held not erroneous.
Instruction complained of charged jury that "in establishing a conspiracy, the state is never required to prove in express terms an agreement between the parties to commit the crime, but it is sufficient when the evidence reveals, from all the facts and circumstances, together with the acts of the parties, a common design or understood purpose between the parties to commit the crime. . . ."
11. CRIMINAL LAW.
In robbery prosecution, instruction on subject of conspiracy, using term "reveals," held not erroneous as not meaning proof beyond reasonable doubt, in view of other instructions on degree of proof required.
12. CRIMINAL LAW.
In robbery prosecution, defendant's instruction defining phrase "reasonable doubt" held properly refused, in view of instruction authorizing acquittal, unless guilt was proved beyond every reasonable doubt.
13. CRIMINAL LAW.
Phrase, "reasonable doubt" of guilt, warranting acquittal of accused, defines itself, and needs no definition by court.
APPEAL from circuit court of Clarke county. HON. J.D. FATHEREE, J.
Reily Parker, of Meridian, for appellant.
In the case at bar, the evidence rests upon the testimony of purported accomplices, which appears to us to have been impeached in every way possible.
Wright v. State, 94 So. 716.
The evidence of this record clearly brings this case within the exception, which holds that the testimony of an accomplice is not sufficient, if such evidence is improbable on its face or self-contradictory.
Matthews v. State, 114 So. 816; Abele v. State, 138 Miss. 772.
The jury has the right to pass upon the weight of the testimony coming from every witness, but they have not the right to consider the evidence of a purported accomplice, without at the same time, taking into account the recognized weakness of such a witness. The jury has the right to accept the evidence coming from a purported accomplice, only when such evidence is not improbable on its face, or self-contradictory, for when such evidence is improbable on its face or self-contradictory, then, as a matter of law, such evidence is insufficient.
Matthews v. State, 114 So. 816.
The instructions granted in this case, are erroneous and should not have been granted the state, and we think this sufficient to require a reversal of this case.
Instructions to the jury ought to be framed in clear and distinct, and not in vague and uncertain language; they ought to explain to the jury the principles of law applicable to the facts in the case, and not leave unexplained principles which are necessarily involved in the verdict they are to find.
Cochran v. State, 39 Miss. 541; Williams v. State, 90 So. 886.
The advice or encouragement which will render one an accessory before the fact may be by acts or words, but it must, to create guilt, be used with the intent to encourage and abet the crime.
1 R.C.L., at page 147.
In order to constitute one an accomplice, he must knowingly, voluntarily and with common intent with the principal offender unite in the commission of the crime.
1 R.C.L., page 158.
The instruction complained of in this case, does not require any participation of this defendant in any criminal act to warrant his conviction.
The following instruction granted the state is erroneous.
You are charged for the state, that in establishing a conspiracy, the state is never required to prove in express terms an agreement between the parties to commit the crime, but it is sufficient when the evidence reveals . . . a common design or understood purpose between the parties to commit the crime.
This instruction does not say to the jury that the proving of an expressed agreement is not required, but that in the proving of an agreement, the state is not held in its proof to express terms.
This instruction is further erroneous because it states that the evidence in a criminal case is sufficient to prove a conspiracy, whenever such evidence reveals the existence of the conditions named therein. The term "reveal" is not the same as "proof beyond a reasonable doubt." And in order to establish a conspiracy in a criminal case, nothing less than proof beyond reasonable doubt should be stated as sufficient to establish a conspiracy or any other feature of the guilt of the defendant.
This instruction is further erroneous because it states that the defendant's guilt in participation in a conspiracy is established when the evidence reveals an "understood purpose between the parties to commit the crime."
Proof that one has stood by at the commission of a crime without taking any steps to prevent it does not alone indicate such participation or combination in the wrong done as to show criminal liability, although he approves of the act. Even the fact of previous knowledge that a felony was intended will not render one who has concealed such knowledge and is present at the commission of the offense a party thereto.
Harper v. State, 35 So. 572.
We next call the court's attention to an instruction requested by the defendant and refused by the court, as follows:
"The court instructs the jury for the defendant that reasonable doubt means that uncertain condition of mind which may remain after considering what has not, as well as what has been proved in this case. And if the jury, from all testimony in this case and the lack of testimony, has a reasonable doubt in their mind as to the guilt of the defendant, then it is your sworn duty to acquit this defendant.
This instruction tells the jury that a reasonable doubt may arise, as well as from the lack of evidence, as from the evidence, and if they do in fact entertain a reasonable doubt of the defendant's guilt, based upon the lack of evidence or upon the evidence, that the defendant should be acquitted.
This instruction should have been granted.
A reasonable doubt may arise from want of evidence, as well as out of the evidence.
Hale v. State, 16 So. 387; Howell v. State, 53 So. 954.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
The evidence of an accomplice is sufficient to sustain a conviction against his co-defendant, unless such evidence is improbable on its face or self contradictory. The question of the credibility of such evidence when not so unreasonable or contradictory on its face, is for the jury, and the jury's verdict will not be disturbed merely because such evidence is contradicted by the witnesses for the defendant.
Matthews v. State, 114 So. 816.
The question of whether or not the testimony of certain witnesses has been contradicted by other witnesses for the defendant is not a matter to be inquired into by this court. As said in the Matthews case "The jury's verdict will not be disturbed merely because such evidence is contradicted by the witnesses for the defendant.
Gates v. State, 135 So. 189.
It is sufficient to sustain a conviction although the accomplice admitted that he testified falsely in another trial in the absence of the conviction of perjury for such false swearing.
Gates v. State, 135 So. 189.
It has long been settled in this state, beyond peradventure, that the testimony of an accomplice alone, uncorroborated, is sufficient to sustain a verdict of guilty.
Pruitt v. State, 139 So. 861.
It is not error to refuse an instruction on the weight of the evidence.
Hays v. State, 121 So. 281; Randolph v. State, 119 So. 207; Hartley v. State, 137 So. 518.
Technical law is good law under proper circumstances, but not where it shocks common sense.
State v. Pressley, 91 Miss. 377, 44 So. 827; Wexler v. State, 142 So. 501.
I submit that the instruction complained of meets the requirements of the Harper case in that it provides that if appellant encouraged, aided and abetted in this holdup, then he was as much responsible for the commission of the crime as the man who actually committed the holdup.
It is quite as well settled that a conspiracy may be proved like other controverted facts by the acts of parties, or by circumstances, as well as their agreement.
Street v. State, 43 Miss. 2; Osborne v. State, 99 Miss. 410, 55 So. 52.
Appellant complains of the refusal of the trial court to grant him the instruction which attempts to define "reasonable doubt." This instruction, if followed literally by the jury, will amount to the giving of a peremptory instruction and where a defendant is not entitled to a peremptory instruction outright this court has held that it is not error to refuse such instruction.
Runnels v. State, 96 Miss. 92, 50 So. 499.
Argued orally by Marion Reily, for appellant, and by W.D. Conn, Jr., for the state.
Appellant was indicted and convicted in the circuit court of Clarke county of the crime of robbery, and sentenced to the penitentiary for a term of ten years. From that judgment he prosecutes this appeal.
Appellant was indicted jointly with J.H. Jenkins, M.A. Evans, and J.W. Boutwell on a charge of robbing the Stonewall Cotton Mill of three thousand eight hundred eighty dollars. Appellant was granted a severance, and tried apart from the others.
On the 15th of January, 1931, the Stonewall Cotton Mill was robbed of the sum of three thousand eight hundred eighty dollars. The evidence shows that fact without conflict. J.H. Jenkins and M.A. Evans testified for the state. The evidence showed that Evans committed the overt act of the actual robbery, that J.W. Boutwell was present, and that J.H. Jenkins was nearby in an automobile awaiting the commission of the robbery by Evans for the purpose of taking the latter and the fruits of the robbery away from the scene. Both Evans and Jenkins testified to those facts. They testified further that the robbery was suggested and planned by the appellant, and that he shared in its fruits to the extent of one-fourth of the three thousand eight hundred eighty dollars. Besides the evidence of the two accomplices, Evans and Jenkins, there were other material facts and circumstances in evidence supporting the state's theory that appellant suggested and planned the robbery and shared in its fruits, and that Evans and Jenkins and appellant's brother, J.W. Boutwell, were mere instruments in his hands to commit the crime.
Appellant assigns and argues as error the action of the court in refusing to direct a verdict in his favor on the ground that the evidence was insufficient to sustain a conviction. To sustain that contention appellant relies on Abele v. State, 138 Miss. 772, 103 So. 370; Matthews v. State, 148 Miss. 696, 114 So. 816; and 1 R.C.L., p. 170, par. 17. It was held in the Abele Case that ordinarily a conviction may be had upon the uncorroborated testimony of an accomplice, but, where the accomplice is the sole witness connecting the defendant with the crime, and where his veracity is shown by strong evidence to be bad, and where the defendant's reputation for honesty and integrity and truth and veracity is satisfactorily proved to be good, and where an alibi is proved by a disinterested witness, a conviction on the unsupported testimony of the accomplice will not be upheld. In the Matthews case the court held that the evidence of an accomplice was sufficient to sustain a conviction against his co-defendant, unless such evidence was so self-contradictory and improbable on its face as to be unbelievable, and the jury's verdict would not be disturbed merely because such evidence was contradicted by witnesses for the defendant.
In 1 R.C.L., par. 13, p. 166, it is stated that under the common law it is well settled that the testimony of an accomplice, although entirely without corroboration, will support a verdict of conviction of one accused of crime, and that this is still the law in the absence of a statute to the contrary. (The common-law rule obtains in this state.) In paragraph 15, p. 169, there is a discussion of the character and extent of the corroboratory evidence necessary to satisfy the requirements of the statutes of those jurisdictions requiring corroboration; and then in paragraph 17, p. 170, the one relied on and copied in appellant's brief, it is stated that the confirmation required to give the testimony of an accomplice the necessary weight should come from an unimpeached source, and that the evidence of one accomplice is insufficient for the purpose of corroborating another; that the reason of this rule is that each is contaminated by the turpitude of the same guilt, and the same infirmity therefore attaches alike to the testimony of both. It seems manifest that the author was undertaking to state what corroboration was necessary in those states having statutes requiring corroboration. Evidently he was not referring to common-law rule, because in paragraph 13 he had already stated it was well settled that the testimony of an accomplice under the common law, although entirely without corroboration, would support a conviction.
In Pruitt v. State, 139 So. 861, our court stated the rule to be that the evidence on behalf of the state must be most favorably considered in determining whether or not there shall be a reversal, because the conviction stands merely upon the evidence of a confessed accomplice who was the main agent in the accomplishment of the crime charged, and that it had been settled in this state by a long line of decisions "beyond peradventure" that the testimony of an accomplice alone uncorroborated was sufficient to sustain a verdict of guilty — citing Keithler v. State, 10 Smedes M. 192; Dick v. State, 30 Miss. 593; Strawhern v. State, 37 Miss. 422; George v. State, 39 Miss. 570; Fitzcox v. State, 52 Miss. 923; White v. State, 52 Miss. 216; Wilson v. State, 71 Miss. 880, 16 So. 304; Matthews v. State, 148 Miss. 696, 114 So. 816; Gates v. State, 160 Miss. 479, 135 So. 189.
As above stated, the testimony of the two accomplices, Evans and Jenkins, if corroboration were necessary, was corroborated by numerous facts and circumstances. The evidence tended to show that the appellant was the master of the whole scheme of robbery, and that his brother and Evans and Jenkins were mere tools in his hands to carry out such scheme, and that appellant retained one-half of the fruits of the robbery, one-fourth for himself, and one-fourth for his brother.
Appellant assigns and argues as error the refusal by the court of the following instructions: "The court instructs the jury for the defendant that if the jury believe from the evidence in this case that the witness Evans has been successfully impeached by trustworthy testimony upon vital and material testimony then in that event the jury cannot convict the defendant upon the testimony of the witness Evans."
"The court instructs the jury for the defendant that if the jury believe from the testimony in this case that the witness Jenkins has been successfully impeached by trustworthy evidence upon vital and material matters in this case then the jury cannot convict the defendant upon the testimony of the witness Jenkins."
There was no error in refusing these instructions, for two reasons: First, because each of them singles out the testimony of a particular witness, and tells the jury that, if he has been successfully impeached upon a vital issue in the case, then the jury must disregard his testimony entirely; second, if there were no errors in the instructions, their refusal by the court was harmless to appellant, for the court instructed the jury at appellant's request that the law looked with suspicion and distrust on the testimony of an accomplice, and required the jury to weigh the same with great care and caution, and, in this case, that Evans and Jenkins were accomplices, and, in passing on what weight, if any, they would give their testimony, they should weigh it with great care and caution, and look upon it with distrust and suspicion.
On a search by the officers of appellant's home and premises, there was found under his residence a package containing something over one thousand six hundred dollars, which the state claimed was a part of the fruits of the robbery. This search was made on an affidavit and search warrant issued by an authorized officer. On the trial, the search warrant was introduced in evidence, but the affidavit for the search was not. Appellant contends that the evidence obtained by the search should not have been admitted for two reasons: (1) Because the affidavit for the search warrant was not introduced in evidence, and (2) because the search warrant failed to sufficiently describe the money of which the Stonewall Cotton Mill was robbed. The state contends that whatever merit there may be in appellant's contention, it was not raised in the court below, and therefore cannot be considered on appeal.
W.Z. West, sheriff of Clarke county, testified as a witness for the state. He was one of the officers who made the search of appellant's home and premises and found the package of money containing something over one thousand six hundred dollars. He testified that, when the search was made, they had a search warrant and served it on appellant's wife; appellant not being in his home. While the witness was testifying, he had in his hands the affidavit for the search warrant and the search warrant. Appellant cross-examined the witness. At the conclusion of the cross-examination, appellant's attorney interposed the following objection to the testimony of the witness: "Because the affidavit does not show whose property it was that was believed to be upon the property of B.A. Boutwell." The objection was overruled by the court, to which action of the court appellant excepted. If appellant had made an objection to the evidence of the search because the affidavit and search warrant had not been introduced, his objection would have been well founded and should have been sustained by the court, but, instead of doing that, he objected to the affidavit alone on the specific ground that it failed to show whose property was to be searched for. When the search warrant was introduced, appellant made no objection whatever. Now appellant contends on appeal for the first time that the evidence obtained by the search should have been ruled out because the affidavit for the search warrant was not introduced, and the search warrant itself did not comply with the law, because the money to be searched for was not sufficiently described. It is too late to raise these questions. Appellant had full opportunity of raising them in the court below, and failed to do so. He chose on the trial to object alone to the evidence on the specific ground that the affidavit failed to show whose property was to be searched for, not on the ground that the affidavit was not introduced in evidence. Questions will not be decided on appeal which were not presented to the trial court and that court given an opportunity to rule on them. In other words, the trial court cannot be put in error, unless it has had an opportunity of committing error. Pruitt v. State (Miss.), 139 So. 861; Jackson v. State (Miss.), 140 So. 683, and authorities cited in those cases; Pickle v. State, 151 Miss. 549, 118 So. 625.
Appellant assigns and argues as error the giving of the following instruction for the state: "The court charges the jury for the state that if you believe from the evidence beyond a reasonable doubt that the robbery of the Stonewall Bank payroll was committed by Evans on the witness Oliver at a time when J.W. Boutwell was present in assisting the said Oliver in delivering the said payroll to its proper destination and that the defendant B.A. Boutwell encouraged, aided and abetted in the same and shared in the fruit of said robbery, if you believe said robbery was committed, then you are charged that under the law, the defendant herein was an accomplice and as such an accomplice, is just as guilty under the law as the man Evans or Jenkins, and this is true although you may further believe from the evidence that the defendant B.A. Boutwell was not present at the time and at the place of the robbery."
Appellant contends that by the instruction the court peremptorily charged the jury that the Stonewall Cotton Mill had been robbed of its pay roll. Concede that it does; there was no error in the instruction for that reason, because the robbery was entirely undisputed. It was not an issue of fact at all. Appellant contends further that the instruction was calculated to confuse the jury, principally because of the use of the words "the same." We do not think there is any merit in this contention. "The same" clearly refers to the completed crime.
Appellant assigns and argues as error the giving of the following instruction: "You are charged for the state, that in establishing a conspiracy, the state is never required to prove in express terms an agreement between the parties to commit the crime, but it is sufficient when the evidence reveals, from all the facts and circumstances, together with the acts of the parties, a common design or understood purpose between the parties to commit the crime, and you are further charged that you have a right under the law to consider all of the testimony in this case which tends, either directly or indirectly, to prove or disprove the theory of the state that a conspiracy to rob the Bank of Stonewall Payroll was concocted or had by and between the defendant and M.A. Evans, Hobart Jenkins and J.W. Boutwell, or any one, or all of them."
Appellant contends that the instruction is erroneous, because it tells the jury that the state is never required to prove in express terms an agreement. He argues that "this seems to be directed to the recognition of the weakness of sufficient proof rather than the definiteness of the terms of the agreement." We do not think there is any merit in this contention. The next criticism of the instruction is the word "reveals" — "that it does not mean the same as proof beyond a reasonable doubt." There is no merit in this criticism of the instruction. This court has held time and again that all the instructions given in a case should be read into each other so as to make one consistent statement of the applicable law of the case, and one instruction cannot be isolated from the others and its merits determined in that way, and that when, considering all the instructions together, the governing principles of law are properly set out, there is no error.
In the instructions in this case for the state the court told the jury time and again that the guilt of appellant had to be proven beyond a reasonable doubt and to a moral certainty; therefore, when the court used, in this particular instruction, the word "reveals," the jury must have understood that the court meant that the guilt of the defendant had to be revealed from the evidence beyond all reasonable doubt.
Appellant assigns and argues as error the action of the court in refusing the following instruction: "The court instructs the jury for the defendant that reasonable doubt means that uncertain condition of mind which may remain after considering what has not, as well as what has been proved in this case. And if the jury, from all testimony in this case and the lack of testimony, has a reasonable doubt in their mind as to the guilt of the defendant, then it is your sworn duty to acquit this defendant."
There was no error in refusing this instruction. The court had correctly and fully instructed the jury to acquit appellant, unless his guilt had been proved beyond every reasonable doubt arising from the evidence or the want of it. Reversible error was not committed by refusing this instruction. Runnels v. State, 96 Miss. 92, 50 So. 499. Reasonable doubt defines itself; it therefore needs no definition by the court.
We do not think the other questions argued have sufficient merit to call for a discussion by the court.
Affirmed.