Opinion
No. 39008.
February 8, 1954.
1. Criminal law — mistrial — no prejudicial error.
In prosecution for burglary where State's witness in reiterating circumstances which had led to discovery of stolen abandoned automobile unpremeditatedly mentioned that accused had just gotten out of "Pen" and the Court promptly sustained objection, directed jurors to disregard statement, was advised by each juror that juror would disregard it, and where guilt of defendant was clearly shown, the statement did not have such a prejudicial effect as to require a reversal for refusal of trial court to declare a mistrial. Rule 11, Rules of Supreme Court.
Headnote as approved by Ethridge, J.
APPEAL from the circuit court of Pike County; TOM P. BRADY, Judge.
Colin L. Stockdale, Jackson, for appellant.
I. The Court erred in refusing to grant a mistrial to the defendant upon motion duly made as a result of certain testimony offered on behalf the State to which objection was timely made, which objection was sustained by the Court. Shearron v. Shearron (Miss.), 68 So.2d 71.
II. When it is taken into consideration that this defendant's conviction rested solely and alone on the testimony of the thrice convicted of felony, Thrash, with little or no corroboration which could not have been manufactured in his agile mind, it can easily be seen that the statement by an officer of the State Highway Patrol that this appellant had just gotten out of the State Penitentiary, could give considerable more credence to the testimony of Thrash than it was entitled to under the circumstances and the law.
Joe T. Patterson, Asst. Atty. Gen., Jackson, for appellee.
I. The testimony complained of is the testimony of Sam Ivy, Identification Officer with the Mississippi State Highway Patrol. Mr. Ivy had been called to the scene of the burglary for the purpose of investigating the crime. After identifying himself and his official position, and stating that he arrived at the scene sometime during the morning of December 9, 1952, the District Attorney told the witness, "* * * to go ahead and tell us just what you did and what you saw after you got down here." The witness then proceeded to make a detailed statement as to what he did after arriving at the scene of the burglary and inspecting the automobile that had been stolen and the tires. The witness further started to detail his inspection of the clothing found in the bag near the automobile, stating, among other things, "Deputy Carr had it in his automobile and me and Inspector Barrett opened the bag and the first pair of pants I picked up had `Huddleston' in the lining, and we had known Huddleston had got out of the penitentiary * * *." At this point, counsel for appellant objected, and the Court promptly sustained his objection. Counsel for appellant then moved for a mistrial, which was, by the Court, overruled. The Court then instructed the jury to disregard the statement that was made, asking each juror individually, "Can you, and do you, disregard that statement that was made?"
II. In view of the prompt and positive action taken by the trial court in sustaining counsel for appellant's objection, and in further view of the fact that this record clearly shows that there was no effort on the part of the witness, Ivy, or the District Attorney, to make proof of such fact in order to prejudice the minds of the jury toward the appellant, we submit that such an unguarded statement on the part of a witness is far from being calculated to be of such prejudicial effect as to warrant a reversal of this cause. Huggins v. State, 209 Miss. 552, 47 So.2d 852; Shaw v. State, 188 Miss. 549, 195 So. 581.
III. This Court has repeatedly held that an accused may be convicted on the uncorroborated testimony of an accomplice, if such testimony is reasonable. Young v. State, 212 Miss. 460, 54 So.2d 671.
IV. No effort to impeach the testimony of the accomplice, Thrash, was made; moreover, his testimony is fully corroborated by the testimony of every State witness testifying herein and by the physical facts.
Appellant, William Huddleston, was convicted in the Circuit Court of Pike County of burglary. The conviction is amply supported by the evidence, and in fact there is no contradiction of the State's case. The State used ten witnesses, among whom was Thrash, an accomplice of appellant. His testimony contained a credible narrative of the crime, connected appellant with it, and was corroborated by physical facts and other testimony. Appellant introduced no witnesses.
Appellant argues only one point. The State showed that appellant, along with several other men, entered and stole from the Stewart Motor Company, owned by E.E. Stewart, money and property of the approximate value of $6,918.10. The crime occurred in the nighttime, and among the items of property taken was a 1952 Chevrolet automobile. The next morning the officers found this abandoned car a short distance from the Town of Magnolia, and near it a small bag containing clothing, among which was a pair of trousers bearing the name "Huddleston."
The State introduced as a witness Sam Ivy, identification officer with the Mississippi Highway Patrol. He testified that he got the report of the burglary the next morning, and that he went down to Magnolia to investigate it. The district attorney then asked him to go ahead and tell just what he did and what he saw after he got there. Ivy then proceeded to narrate that he processed the car and the motor company for fingerprints; that they found the stolen tires under a bridge and "when we got back we got information that Deputy Carr had a bag at the scene of the Chevrolet car. Deputy Carr had it in his automobile and me and Inspector Barrett opened the bag and the first pair of pants I picked up had Huddleston in the lining, and we had known Huddleston had gotten out of the Pen." Appellant's attorney immediately objected to the last quoted statement. The court sustained the objection and directed the jury to disregard it. Appellant then moved for a mistrial. That motion was overruled. The court asked each of the jurors individually "Can you and do you disregard that statement that was made?", to which each juror replied in the affirmative.
Appellant says that the refusal to grant a mistrial was reversible error, since the minds of the jurors had been prejudiced by the quoted remark of Ivy with reference to the penitentiary, and that this reacted adversely against the defendant. Of course this statement by the officer should not have been made, and the objection to it was properly sustained. However, the court promptly sustained the objection, directed the jurors to disregard it, and then was advised by each of them that they would disregard it. No further reference to that statement of Ivy was made in the trial. In view of the trial court's prompt action on appellant's objection, and because appellant's guilt was rather clearly shown, (Hn 1) we do not think that this unguarded and unpremeditated statement had such a prejudicial effect as to require a reversal. Somewhat analogous to this situation was that in Huggins v. State, 209 Miss. 552, 47 So.2d 852 (1950). Moreover, the accomplice's testimony is clear and consistent, is supported by the physical facts and other testimony, and is not contradicted by appellant. And under Rule 11 of this Court, no judgment shall be reversed "unless it shall affirmatively appear, from the whole record, that such judgment has resulted in a miscarriage of justice." For all of the above reasons we affirm the judgment of the trial court.
Affirmed.
Roberds, P.J., and Kyle, Arrington and Gillespie, JJ., concur.