Opinion
No. 36030.
February 11, 1946.
1. LARCENY.
In prosecution for grand larceny, based on the alleged stealing of $440 in bills, undisputed evidence that defendant was in possession of a $20 bill which the prosecuting witness positively identified as having been among the bills that were stolen was sufficient to make case for jury.
2. LARCENY.
A presumption of guilt arises from the possession of recently stolen money, provided that the proof is sufficient to establish that the money was in fact stolen and that the accused failed to give a reasonable explanation of his possession.
3. LARCENY.
Where a purse containing several $20 bills was shown to have been stolen and defendant was found in possession of several $20 bills, one of which was positively identified as having been among the bills stolen, court properly charged that jury could convict accused of grand larceny if they believed that he had stolen the entire $440 in question, but erred in charging that since the testimony showed that not more than one $20 bill came into defendant's possession and was identified, jury could not find accused guilty of a greater offense than petit larceny.
4. CRIMINAL LAW.
Accused could not complain of the giving of a correct instruction for the state, although it was not consistent with the one given more favorable to the accused where the one given in favor of accused was erroneous.
5. CRIMINAL LAW.
Although a jury must obey the instructions of the court, a verdict should not be set aside where it is clear that they were guided by a correct instruction, and without regard to an erroneous instruction which was inconsistent therewith.
APPEAL from the county court of Forrest county, HON. WM. HARALSON, Judge.
Earle L. Wingo and Dudley W. Conner, both of Hattiesburg, for appellant.
The court erred in overruling the defendant's motion at the conclusion of the state's evidence and again at the conclusion of all the evidence and in refusing the defendant's instruction to find the defendant not guilty, for the reason that the testimony beyond doubt shows that the state has failed to prove venue, that is, that the crime, alleged crime, was committed in Forrest County. While it is recognized that the offense of larceny is a continuing one and that the accused may be tried, not only in the county in which the crime is committed, but in any county in which the goods may be taken, yet where there is doubt as to the commission of a crime, then the question of jurisdiction and venue becomes most important. Under the evidence offered in this case, surely no one can say beyond a reasonable doubt that Roberta Jefferson's money was stolen, not even Roberta, and, if stolen, that the crime was committed in Forrest County. The possibility of loss is as great as the possibility of a crime.
The corpus delicti of the crime of larceny is the unlawful and felonious taking and carrying away of property of another without the consent of the owner.
Crabb et al. v. State, 152 Miss. 602, 120 So. 569.
In a case where circumstantial evidence is relied upon to establish the corpus delicti, it is not sufficient that the circumstances proved coincide with and account for, and therefore render probable, the hypothesis of the guilt of the accused. The evidence must be such as to establish the corpus delicti to a reasonable certainty, and exclude every other possible hypothesis except that of guilty; that is, the evidence must be such as to establish so positively the corpus delicti as to exclude from the minds of the jury all uncertainty in regard to it.
Stringer v. State (Ala.), 33 So. 685; 1 Wharton's Criminal Law 461.
The court erred in refusing to sustain the appellant's motion to arrest judgment. After conviction and before sentence of the court, the appellant filed his motion to arrest the judgment of the court. The motion set forth in detail the errors alleged to have been committed on the trial of said cause and the court was given an opportunity to correct such errors, which it refused to do and for which this cause should be reversed and the defendant discharged.
It was error for the court to sentence the appellant to two years in the State Penitentiary when the court had sustained the motion that the greatest offense of which he might be convicted was petit larceny. The defendant requested and the court sustained the following motion: "And now comes the defendant and respectfully moves the court to instruct the jury first that because the testimony shows that no more money than twenty dollars was found on the defendant that was ever identified, that the jury cannot find the defendant guilty of a greater offense than petit larceny." The court so instructed the jury.
Thus, the greatest possible offense of which the appellant could be convicted was petit larceny. Section 2242, Mississippi Code of 1942, fixes the punishment "by imprisonment in the county jail not exceeding three months, or by fine not exceeding one hundred dollars ($100.00), or both." Notwithstanding its action in sustaining defendant's motion and its instruction to the jury and said Section 2242 of the Code of 1942, the court sentenced the appellant to two years in the state penitentiary. This was manifest error for which this cause should be reversed.
It was error for the jury to disregard the court's instruction that it could find the defendant guilty of no greater offense than petit larceny. The court granted the defendant the following instruction: "The court instructs the jury for the defendant that since the testimony in this case shows that not more than $20.00, by circumstantial evidence, came into the possession of the defendant and identified by the prosecuting witness, you cannot, under the law, find the defendant guilty of greater offense than that of petty larceny, and this is true only in the event the jury should find the defendant guilty and in which the form of your verdict should be: `We, the jury, find the defendant guilty of petty larceny.'" At the request of the state the court granted the following instruction: "The court instructs the jury for the State that if you believe from all the evidence in this case, beyond a reasonable doubt, that the defendant, Houston Haney, on or about the 2nd day of July, 1945, in Forrest County, State of Mississippi, did, then and there, a sum of money in the amount Four Hundred and Forty Dollars ($440.00) and of the value of Four Hundred and Forty Dollars ($440.00), good and lawful money of the United States of America, of the personal property of Roberta Jefferson, then and there found and being, did wilfully, unlawfully and feloniously take, steal and carry away, as charged in the indictment, then it is your sworn duty to find the defendant guilty as charged." Having sustained the defendant's motion to limit the issues to petit larceny, the court erred in granting the state the above instruction and the jury's verdict of "Guilty as charged" was in direct conflict and in disregard of the instruction of the court that the defendant could be convicted of no greater offense than petit larceny. The jurors are, by Section 1797, Code of 1942, under the court's control and it was error for the court to refuse to set the verdict aside and grant the appellant a new trial on the hearing of his motion to arrest, or, at least, it was the court's duty to enter the judgment the jury should have rendered under the instructions.
The jury's verdict was against the weight of the evidence and is contrary to the evidence. In larceny prosecution based on circumstantial evidence, the state must prove theft and defendant's connection therewith to exclusion of every reasonable hypothesis of innocence.
Day v. State (Miss.), 7 So. 326; Ezell et al. v. State, 158 Miss. 343, 130 So. 487.
There must be proof that the property described in the indictment was stolen, that the property found in the possession of the accused was the stolen property, and that the possession was recently after the larceny. The limitations are that the accused's possession must be proved to have been personal, conscious and exclusive and unexplained by any direct or circumstantial evidence which would rebut the presumption of a taking by accused.
Wade v. State, 175 Miss. 434, 167 So. 617; 36 C.J. 867, Sec. 427.
Where one in whose possession stolen property is found gives a reasonable account of how he acquired possession, prosecution has burden of showing that the account is false.
Johnson v. State, 186 Miss. 405, 191 So. 127; Calhoun v. State, 191 Miss. 82, 2 So.2d 802.
See also Ewing et al. v. State (Miss.), 9 So.2d 879; Upton v. State, 192 Miss. 339, 6 So.2d 129; Ladner v. State (Miss.), 9 So.2d 878.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
In the absence of an explanation, the presumption of recent unexplained possession of stolen property gives rise to a finding that the possessor is the thief.
Autman v. State, 126 Miss. 629, 89 So. 265.
The motion of appellant to limit jury to verdict of guilty of an offense not greater than petit larceny was in effect the same as a demurrer to the evidence. The rule on such a motion, where there is evidence that would go to jury and be sufficient to warrant their acceptance of it, is that the jury shall be the judges and the court cannot sustain a demurrer to the evidence or substitute its judgment as to sufficiency of the evidence to sustain the verdict. A demurrer to evidence admits all facts of which there is any evidence and all conclusions or inferences drawn fairly and legally from such evidence to sustain the charge.
Chewning v. Gatewood, 5 How. (6 Miss.) 552; Mobile O.R. Co. v. McArthur, 43 Miss. 180; Raiford v. Miss. Cent. R. Co., 43 Miss. 233; Hicks v. Steigleman, 49 Miss. 377; Alexander v. Zeigler, 84 Miss. 560, 36 So. 536; Gravette v. Golden Saw Mill Trust, 170 Miss. 15, 154 So. 274; Mississippi Digest, title "Trials," Key No. 156 (2); 53 Am. Jur. 257, Secs. 313, 314.
Evidence from which reasonable persons may honestly reach different conclusions presents a question for the jury.
Miss. Cent. R. Co. v. Mason, 51 Miss. 234; Great Southern Life Ins. Co. v. Campbell, 148 Miss. 173, 114 So. 262, 56 A.L.R. 681; Mutual Life Ins. Co. of New York v. Savage, 31 F.2d 35; Burkett v. New York Life Ins. Co., 56 F.2d 105; Mississippi Digest, title "Trials," Key No. 142, title "Criminal Law," Key No. 745-747.
The court has the right and power at any time during term to correct any mistake that may have been made by the court on questions which lie within its jurisdiction; rulings of the court are subject to review at any time during the term; the court is not bound to grant new trial or arrest judgment because of a mistake made by the court.
Code of 1942, Sec. 1670; 14 Am. Jur. 351, Secs. 141, 142; 15 R.C.L. 554, Secs. 147-151.
The defendant cannot complain of an instruction which is a correct statement of the law although it is not consistent with other instructions given which were more favorable to him.
George v. Los Angeles Railway Co., 126 Cal. 357, 77 Am. St. Rep. 184, 46 L.R.A. 829.
The motion to arrest the judgment in this case was not a proper motion as such a motion should go to the proceedings in which no legal judgment could be pronounced on the verdict because the finding was of a greater offense than the evidence warranted. The court cannot on motion to arrest judgment consider a question of the weight, effect and value of the evidence.
Where evidence shows a given sum of money was stolen and part of the money is identified in the manner recognized by law, the identification of a particular bill will support a finding of the theft of the companion bills. The law does not require that the precise bills stolen be identified and any ruling that would require identification of each particular bill would be unreasonable and would defeat justice.
To sustain the charge of grand larceny against the appellant, Houston Haney, for the alleged stealing of the $440 in question, the state was able to prove without dispute that he was in possession of a $20 bill which the chief prosecuting witness, Roberta Jefferson, positively identified as having been among the 21 of such bills and 2 ten dollar bills that were stolen from her. This was sufficient proof to make out a case for the consideration of the jury, in view of the presumption of guilt which arises from the possession of recently stolen property, provided (1) that the proof is sufficient to establish that the money was in fact stolen; and (2) that the accused failed to give a reasonable explanation of his possession of such recently stolen property.
An examination of the evidence for the state clearly reveals, circumstantially, that the purse in which this money was contained had either been removed from the bosom of Roberta Jefferson while she was asleep and riding in an automobile between the accused and one Ollie Morgan, or had become unfastened from the clothing of Roberta and was picked up by the accused under such circumstances as would justify a jury in believing that he had come into the possession thereof stealthily.
There is nothing in the evidence that would warrant the belief that either the said Ollie Morgan or any of the occupants of the rear seat of the automobile had first gained possession of the money, since it is not claimed by the accused that he received it from either of them. In fact, it is the theory of the defense that on the afternoon of the preceding day that this $20 bill may have been delivered to the wife of the accused by Roberta Jefferson in payment of her rent, or by a soldier whom the defendant claims purchased some beer for Roberta during the previous evening with a $20 bill.
According to the testimony of Roberta Jefferson, the $20 bill in controversy was given to her by her husband while he was working for the railroad, and immediately prior to his being inducted into the military service, that her husband was killed in Germany about two months before the alleged larceny took place, and that she had placed his initials "C.H.J." on this "souvenir" $20 bill, which she had in her purse on the occasion complained of. She reported this fact to the police officer prior to the arrest of the accused and they found it among the $20 bills, 16 in number, that were taken off the accused at the time of his arrest, along with currency and silver amounting to the total sum of $400.65.
The accused did not testify as a witness on the trial, but his wife undertook to explain his possession of this money by saying that immediately before his arrest she gave him her purse containing all of this money, and for the purpose of buying some hog feed. But, in view of the fact that Roberta Jefferson denied having delivered this $20 or any other $20 bill to the wife of the accused in payment of her rent on the previous afternoon, and denied that any soldier purchased any beer for her or was present at her apartment at any time during the period in question, there was presented for the decision of the jury the question as to whether any reasonable explanation had been made such as would account for the accused's possession of this $20 bill.
The trial court gave an instruction for the state which would clearly permit the jury to convict the accused of grand larceny if they believed from the evidence beyond a reasonable doubt that he had stolen the entire $440 in question. This instruction was properly given, but the jury was instructed on behalf of the accused that: "Since the testimony in this case shows that not more than $20, by circumstantial evidence, came into the possession of the defendant and identified by the prosecuting witness, you cannot, under the law, find the defendant guilty of a greater offense than that of petit larceny, . . ." This instruction for the defendant was erroneous, since the jury was entitled to believe from all of the circumstances that whoever stole the $20 bill which had been initialed had also stolen the remaining contents of the purse. While the two instructions are in conflict, the accused cannot complain of the giving of a correct instruction for the state, although it is not consistent with the one given more favorable to the accused where the one given in favor of the accused is erroneous. George v. Los Angeles Railway Company, 126 Cal. 357, 58 P. 819, 46 L.R.A. 829, 77 Am. St. Rep. 184.
While it is the duty of the jury to obey the instructions of the court, a verdict should not be set aside where it is clear that they were guided in their conclusions by a correct instruction, and without regard to any erroneous instruction which was inconsistent therewith.
We are of the opinion that the conviction for the crime of grand larceny should be upheld, and that therefore the judgment of the trial court should be affirmed.
Affirmed.