Opinion
No. 33169.
April 4, 1938.
BURGLARY.
Evidence sustained conviction for burglarizing a store.
APPEAL from the circuit court of Wayne county; HON. A.G. BUSBY, Judge.
W.M. Hutto, of Waynesboro, for appellant, Clarence Hall.
We did not have the opportunity to be connected with the defense of Clarence Hall in the trial court, and after we have studied the record of the evidence introduced in the court below on the part of the State insofar as the guilt of Clarence Hall is concerned, we can only reach one conclusion, and that is that the trial court erred in not sustaining the motion made on the part of the defendant Clarence Hall to exclude the evidence on the part of the State and find the defendant Clarence Hall not guilty and for the further reason that the overwhelming weight of the evidence is contrary to the verdict of the jury. The defendant Clarence Hall was convicted solely on suspicion by the jury.
M.L. Heidelberg, of Waynesboro, for appellants, Clarence Hall and Roland Arnold.
The only evidence to connect Clarence Hall with the alleged burglary is the testimony of C.H. Walker, witness for the State. In his testimony he alleges that he recognized Clarence Hall at a distance of 44 yards, and that he was standing by the roadside and a short distance from the storehouse that Roland Arnold was at the time trying to enter; and that a moment later Clarence Hall began to move east towards the bridge and away from the storehouse; and that he never saw him any more that night.
In the case of Tallent, et al. v. State, 119 So. 175, the court said: "That testimony merely showing that the defendant was present at the still at the time it was being operated was insufficient to warrant a conviction under an indictment for manufacturing intoxicating liquors."
Medlin v. State, 143 Miss. 856, 108 So. 177; Powers v. State, 86 So. 862.
There was no attempt to trace Clarence Hall with bloodhounds, and he was never identified by the bloodhounds as the person who walked away towards the bridge.
The verdict of the jury is contrary to the law and the evidence and against the weight of the evidence.
Witness, C.H. Walker, claims to have recognized both defendants on a cloudy moonlight night at a distance of 44 yards from where he stood in his residence door. We submit that this assertion is contrary to common experience. To recognize one at a distance of 135 feet in a cloudy moonlight night is hardly possible, unless words are spoken by the one to be recognized. But it is common experience that many persons let their imagination lead them to assert a thing to be true, when as a matter of fact it could not be true.
As to bloodhounds, Mr. Jenkins testified that his bloodhounds were pure blood and trained; but he did not state how he knew this or that he did the training. This is hardly sufficient. The defendant, Roland Arnold, testified that he passed under the porch of the Walker store Tuesday morning of the day the burglary is alleged to have taken place, on the way to his mother's home, where he went that morning. The bloodhound testimony corroborates the State's theory that he went from the place of the burglary to his mother's house, for when the hounds reached his mother's he was not there and had not been there that night. It is assumed that he was taken away in an automobile, but this is not proved nor probable, for if he went to his mother's house after the burglary, as is assumed, he went there to stay for the night. It is not reasonable to think or believe that a man would walk two miles past his place to sleep after ten o'clock at night, when he would know that his mother was then in bed, or just to get a ride back over the same road to the very place he had passed. It is assumed he was trying to hide by riding in an automobile, but the place he went was no hiding place, but his regular sleeping place, or at least where he was in the habit of staying, and the sheriff knew that and went there and found him, without the help of any bloodhounds.
Russell Wright, Assistant Attorney-General, for the State.
The State submits, without the necessity of extending the argument, that the positive identification of the witness, C.H. Walker, who was standing 15 steps from Roland Arnold, whom he had known 10 years, at the time Roland Arnold came out of the store through the window, and who, after he had gotten to his feet, stood there probably half a minute until the witness, Walker, spoke to him, is sufficient for the jury to have convicted the appellant, Roland Arnold, of burglary. The jury accepted the identification of the witness, Walker, and we submit that under the proof of the alibi, which was discredited, the jury's acceptance of this version precludes this court from disturbing its verdict.
Roland Arnold and Clarence Hall were together. Roland Arnold went into the store and Clarence Hall stood watching. The jury had a right to infer that by the same moonlight by which he was identified he saw Walker's head out of Walker's door and turned and walked away because he saw that he had been seen. It was probably bad fortune for Roland Arnold, who was inside the store, that he was not able to turn and walk away too, but we submit that, under this testimony, the jury had a right to find that both of these defendants went to this store for the purpose of burglary, one to go in and the other to watch and that, under such circumstances, they were equally guilty.
The appellants were jointly indicted and tried, and each convicted of the crime of burglary, in the circuit court of Wayne county; from which judgment this appeal is prosecuted.
The appellants were convicted of burglarizing the store of Mr. C.H. Walker, situated on the Waynesboro and Laurel public road. Mr. Walker lived opposite his store, on the public highway. He had retired, but had not gone to sleep, when he heard a noise, and listening, decided that it came from the direction of his store. He arose, went to the front door of his residence, opened it slightly, and looked in the direction of the store, when he saw Mr. Arnold working his way in the window of the store, while Mr. Hall stood on the property on which the store was situated, four to six feet from the store window, facing the residence of Mr. Walker. Mr. Walker stepped back from the door, secured a pistol, and came out of the house, but in the meantime Hall had gone. Arnold was emerging from the store window, head first, as Walker approached within ten or twelve feet and asked what he was doing and what he wanted; whereupon Arnold fled in a westerly direction, Walker firing the pistol at him five times without hitting him.
Walker stated that he had known Arnold some fifteen or sixteen years, and Hall for about two and a half years. The moon was shining brightly, at about the position in the sky where the sun would be at 10 o'clock in the morning.
Mr. Walker went for the sheriff, who telephoned to Meridian for Mr. Jenkins, who owned bloodhounds, to bring his dogs, which he did, arriving at about two or half past two in the night. The hounds were taken to the window where Arnold had come out; there they took up the scent and followed the trail to the home of Clarence Hall, where they found Arnold in bed. When the bloodhounds saw Arnold, they scented him and bayed — that is, they barked, which seems to be their way when they locate the person they are trailing.
The testimony of Mr. Jenkins was to the effect that the animals were well trained; that when they took the trail they never departed from it for any other; and that they identified the person they were trailing by rearing up on him and barking, as they did in the case of Arnold.
Up to the time of the arrest of Arnold, Mr. Walker had not mentioned to the sheriff that he had seen Mr. Hall at the place above mentioned, and the fact of his disappearance, but he subsequently told about it. Hall was arrested after Arnold's arrest.
When the state closed its case there was a motion to strike the evidence and direct a verdict of acquittal, which was overruled; whereupon the defendants offered proof of an alibi for both, several witnesses testifying that the two men were at a house near the home of Hall during the period of time from about 8:30 to about 11:30, Hall leaving some fifteen minutes before Arnold. All of these witnesses, of whom there were several, placed Arnold and Hall together at this house. Also, Arnold testified that he had gone along the route from the store to the home on the day before the burglary at night; and that he had secured two rides along the way for parts of the distance, with two different people.
At the conclusion of the case the defendant requested a peremptory instruction, which was refused. There is no assignment of error other than as to the sufficiency of the evidence to sustain the conviction. It is insisted, in particular, that the evidence is insufficient to convict Hall, as it did not couple him with the actual commission of the crime, nor prove a conspiracy to commit the crime.
If Hall's alibi had been separate, and at a different place from that of Arnold, there would be some difficulty in upholding the conviction; but the proof on the part of the defendants showed that they lived together, in the same house, and that they were together on the evening in question; and the testimony as to Hall's alibi would be false unless Arnold was also at the place claimed. In other words, if the testimony as to one is false, it is also false as to the other.
It is shown by the state that Hall was standing within a few feet of Arnold when the latter was entering the store, that he was watching Walker's house and disappeared when the door opened, while Walker was going from the door to the place where his pistol was kept and returning to the door. As already mentioned, it was a bright, moonlight night. Since there was a brief interval between Arnold's entrance of the store, and his coming out, the jury could well infer that Hall gave the alarm, having seen the door of the residence open; that he left at once; and that Arnold came out of the store much sooner than he otherwise would have done.
Mr. Walker was positive in his testimony identifying both of the parties; and certainly as to Arnold his testimony shows that he was within a few feet of him as he came out of the store through the window. Also, there was some braid, as well as some other articles, just outside the window where Arnold came out.
We think the evidence is sufficient to sustain the conviction, and the judgment is affirmed.
Affirmed.