Opinion
No. 33044.
January 31, 1938. Suggestion of Error Overruled February 14, 1938.
1. CRIMINAL LAW.
Evidence sustained finding that written confession had been freely and voluntarily given, justifying admission of confession in evidence.
2. CRIMINAL LAW.
The failure of trial court to strike defendant's statement about stealing whisky which he was drinking on night crime of arson was committed, when eliminating other irrelevant matter from confession, was not reversible error where such failure was evidently due to an oversight and objection was made for first time on appeal.
3. CRIMINAL LAW.
Generally, a confession containing admission of guilt of a separate offense and independent of one inquired into is not admissible.
4. ARSON.
Evidence sustained conviction for arson.
APPEAL from the circuit court of Lee county. HON. THOS. H. JOHNSTON, Judge.
J.W.P. Boggan, of Tupelo, for appellant.
The statement included in the confession that appellant is claimed to have made, wherein he is charged with admitting the stealing of a gallon of whiskey was erroneous and ought to have been excluded from the evidence in this case.
In criminal prosecution, generally, evidence which tends to show accused's commission of separate and distinct crimes is not admissible.
McLin v. State, 116 So. 533, 150 Miss. 159; Willoughby v. State, 122 So. 757, 154 Miss. 653, 63 A.L.R. 1319; Floyd v. State, 148 So. 226, 166 Miss. 15.
It has been held by this court that where a sale of whiskey is charged to have been made on or about a specified day that two distinct sales cannot be offered in evidence.
Robins v. State, 118 So. 535, 151 Miss. 529.
Introduction of evidence of more than one offense in prosecution for manufacture of liquor held erroneous.
Calloway v. State, 121 So. 292, 153 Miss. 599; Craft v. State, 124 So. 488, 155 Miss. 465.
The fact that the appellant may have stolen some whiskey had no connection whatever with the burning of the house with which the appellant was charged.
It is the contention of the appellant that the corpus delicti was not proven, in that it did not show that the fire, which destroyed the house of Rollie Deaton and wife, Mrs. Rollie Deaton, was the result of a criminal agency, but that the evidence in this case, outside of the confession of the appellant, indicated that the fire was the result of the defective wiring of the house.
On the trial of criminal cases, a confession by the accused may be considered together with other evidence to establish the corpus delicti, provided such other evidence is of sufficient character as will satisfy the minds that it is a real and not an imaginary crime which the accused has confessed.
Walker v. State, 89 So. 921, 127 Miss. 246; Barron v. State, 71 So. 374, 111 Miss. 231.
In the case of Ratcliff v. State, 54 So. 947, 99 Miss. 277, the court held that a conviction of arson must be reversed, though the burning was clearly shown, where the only evidence other than accused's claimed confession, tending to show criminal agency, consisted of slight circumstances.
The fact of burning does not establish corpus delicti of unlawful burning.
Rayborn v. State, 76 So. 639, 115 Miss. 730; Holloman v. State, 117 So. 532, 151 Miss. 202; Whitaker v. State, 142 So. 474.
W.D. Conn, Jr., Assistant Attorney-General, for appellee.
Appellant states here that the confession which was offered in evidence was not admissible because it included and referred to a separate and independent offense. It is a general rule that a confession containing admission of guilt of a separate offense and independent of the one being inquired into is not admissible.
Baygents v. State, 144 Miss. 442, 110 So. 114; McLain v. State, 150 Miss. 159, 116 So. 533.
This rule with reference to confessions merely conforms to the general rule that the state is confined to proof alone of the crime charged in the indictment.
Assuming for the sake of argument that the part of the confession here complained of was not competent, the balance of it relating to the crime being inquired into was competent and it was the duty of appellant to be specific enough to point out that part of the proffered evidence which he deemed objectionable and require the court to rule on it. Failure to do this will estop him from doing so in this court for the first time, this court being one of review only.
Lipscomb v. State, 75 Miss. 559, 23 So. 210; Wilkinson v. State, 134 Miss. 853, 98 So. 770; Whittington v. State, 160 Miss. 705, 136 So. 190; Wright v. State, 82 Miss. 421, 34 So. 4; Wampold v. State, 155 So. 350.
It has been held many times by this court that where there has been a confession, any corroborative proof showing that the crime which the accused has confessed is real and not an imaginary one, is sufficient to establish the corpus delicti. In other words, where there has been a confession, the proof of the corpus delicti need be established only to a probability and where such proof, coupled with the confession, establishes it beyond a reasonable doubt, then the corpus delicti was sufficiently proved to admit the confession. There must be proof aliunde the confession, but it need only be slight.
Heard v. State, 59 Miss. 545; Perkins v. State, 160 Miss. 720, 135 So. 357; Pope v. State, 158 Miss. 794, 131 So. 264; Whittaker v. State, 169 Miss. 517, 142 So. 474; Keeton v. State, 167 So. 68, 175 Miss. 631; Nichols v. State, 165 Miss. 114, 145 So. 903; Garner v. State, 132 Miss. 815, 96 So. 743; Patterson v. State, 127 Miss. 256, 90 So. 2; Walker v. State, 127 Miss. 246, 89 So. 921.
Although the corpus delicti cannot be proved alone by the defendant's confession, nevertheless his criminal agency may be shown by his confession alone.
Roberts v. State, 121 So. 279; Crabb v. State, 120 So. 569.
Under the cases set out above, the corpus delicti was sufficiently proved to admit the confession and the proof of the corpus delicti, plus the confession, demonstrates the guilt of appellant beyond any sort of doubt, reasonable or otherwise.
This is an appeal from the circuit court of Lee county from a conviction of arson, and a sentence to serve ten years in the state penitentiary imposed upon the appellant.
A confession of the crime was introduced in evidence over the objection of the appellant on the ground that it was obtained under duress. A preliminary inquiry was held by the court as to whether or not the confession had been freely and voluntarily made. The trial court found from the facts that this written confession had been freely and voluntarily given, and there is ample testimony to sustain this finding.
But it was also contended by the appellant that it was error to admit the confession, for the further reason that it contained an admission of guilt of a separate and distinct offense to that charged in the indictment. However, the record discloses that when the trial court ruled that the confession was admissible, it was then stated by the district attorney, in open court, that there were parts of the statement which did not involve things connected with the particular case, and which might not be admissible. Thereupon the court ruled out a part of the written statement and did not allow the parts so stricken to go before the jury. No specific objection was made to the admissibility of the confession on the specific ground that there was left in the statement a certain admission to the effect that the appellant had stolen the whisky which he was drinking on the night the crime was committed, the only objection in the court below being that the confession had been obtained by duress.
The failure of the trial court to also strike this statement of the appellant about stealing the whisky, when eliminating other irrelevant matter, was evidently due to an oversight, since this particular objection was not called to the attention of the court, and it is raised for the first time on this appeal. It is the general rule that a confession containing admission of guilt of a separate offense, and independent of the one inquired into, is not admissible, Baygents v. State, 144 Miss. 442, 110 So. 114; McLin v. State, 150 Miss. 159, 116 So. 533, the rule announced being in conformity with the general rule that the state is confined to proof alone of the crime charged in the indictment. But under the case of Stegall v. State, Miss., 144 So. 897, where proof of other offenses was admitted without objection, the court held that the action of the trial court in that regard would not be reviewed here.
We are of the opinion that the confession when considered in connection with all of the other facts and circumstances testified to was ample to establish that the fire was of incendiary origin, and that the defendant was guilty of the crime for which he was convicted. Heard v. State, 59 Miss. 545; Perkins v. State, 160 Miss. 720, 135 So. 357; Pope v. State, 158 Miss. 794, 131 So. 264; Whittaker v. State, 169 Miss. 517, 142 So. 474; Keeton v. State, 175 Miss. 631, 167 So. 68; Nichols v. State, 165 Miss. 114, 145 So. 903; Garner v. State, 132 Miss. 815, 96 So. 743; Patterson v. State, 127 Miss. 256, 90 So. 2; Walker v. State, 127 Miss. 246, 89 So. 921.
Affirmed.