Opinion
No. 30617.
October 9, 1933.
APPEAL from the Circuit Court of Lamar County.
N.T. Currie (of Currie Currie), of Hattiesburg, for appellants.
The state's case was supported by no direct testimony, but depended upon circumstantial evidence and testimony of statements made by the appellants. No witness testified that he saw the burglary committed and that the appellants were the persons who committed it.
"Where a defendant has two distinct defenses each of which is supported by evidence sufficient, if believed by the jury, to entitle him to a verdict, he is entitled to have each fairly presented and submitted under proper instructions to the jury."
Cook v. State, 38 So. 110; Doe ex. dem. Anniston City Land Co. v. Edmondson, 40 So. 505; Southern Pine Company of Florida et al. v. Powell et al., 37 So. 570; Birmingham Ry. Light Power Co. v. Mullen, 35 So. 701; Baker et al. v. Eastis et al., 110 So. 705; Hill v. State, 92 So. 578; Alabama Great Southern R.R. Co. v. C.C. Gewin Son, 59 So. 553; Murphy v. State, 42 So. 877; Lott v. State, 93 So. 481.
Error is confessed as to the other appellants and properly so for the reason that they were not present at the time of the alleged statements by Grantham, and under the law are not bound by them, and the whole case as to all of the appellants depended on the alleged statements of Grantham and the state was left without any other proof to uphold the conviction against any of the appellants.
E.F. Coleman, of Purvis, for appellants.
It was manifest error on the part of the court below to admit the testimony or confession of Louis Grantham as to the appellants Louis Dunn and Vester Broom, for the said confession was not made in the presence of and in the hearing of these two appellants.
Thomas M. and Thomas Lynes v. The State, 36 Miss. 617; Foster v. The State, 92 Miss. 257, 45 So. 869; Tate v. The State, 95 Miss. 138, 48 So. 13.
Herbert Nunnery, Assistant Attorney-General, for the state.
In neither instance did Grantham make the alleged confession in the presence of any of the codefendants, and accordingly it was inadmissible.
Pickens v. State, 129 Miss. 191; Murphy v. State, 129 Miss. 634, 92 So. 694; Osborn v. State, 99 Miss. 410, 55 So. 52.
Regardless of the circumstances of the inadmissibility of the evidence procured or admitted against the other defendants below, it has no bearing on the appellant, Grantham. It appears clearly from the record that in making these statements or confessions, that he made same without any reservation and without any inducement from the parties that he made it to, and same were free and voluntary, of his part in the burglary.
We, therefore, submit that the appeal of the appellant, Grantham, should be affirmed, and as to Dunn and Broome, should be reversed.
Argued orally by N.T. Currie, for appellant.
The appellants, Grantham, Dunn, and Broom, were jointly indicted for burglary and larceny of a dwelling house, the property of J.J. Shelton, Sr., convicted by a jury, and sentenced to serve a term of three years in the state penitentiary, from which an appeal is prosecuted.
As to appellants Dunn and Broom, there is not a scintilla of competent evidence of their guilt in this record. Witnesses testified that Grantham stated to them, long after the completion of the crime, and after a conspiracy — if one existed — had been terminated, that he watched while Dunn and Broom entered the dwelling house. Of course, this testimony as to what Grantham said was competent as against himself, there being no question but that the dwelling house in question was burglarized, as alleged in the indictment, but such declarations, not having been made in the presence of the other two appellants, Dunn and Broom, were not competent against them; and, when objection was interposed to this evidence against them, the court should have sustained it as to the two defendants who were not present when Grantham made the confession. Lynes v. State, 36 Miss. 617; Foster v. State, 92 Miss. 257, 45 So. 859; Tate v. State, 95 Miss. 138, 48 So. 13; Osborne v. State, 99 Miss. 419, 55 So. 52; Pickens v. State, 129 Miss. 191, 91 So. 906.
In regard to the appellant, Louis Grantham, the case must be affirmed. There is no merit in the objections urged as to the alleged variance and amendment of the indictment or as to the instruction complained of, and there is no error as to Grantham.
Reversed and remanded as to appellants Dunn and Broom; affirmed as to appellant Grantham.