Summary
In Jackson v. State, 173 Miss. 776, 163 So. 381, the property was described as "one certain Ford automobile, two-door make, of the property of Ben Stevens and of the value of more than $25 * * *".
Summary of this case from Barnes v. StateOpinion
No. 31695.
September 30, 1935.
1. LARCENY.
Description in indictment for grand larceny in theft of automobile as "one certain Ford automobile two-door make, of the property of Ben Stevens and of the value of more than twenty-five dollars" held sufficient (Const. 1890, section 26).
2. WITNESSES.
Witness who had been jointly indicted with defendant for larceny of automobile held not required to testify where defendant expected to prove by such witness that witness had assisted defendant in cleaning and working over automobile for purpose of selling it to one in whose possession it was found, since such testimony would have tended to incriminate witness.
3. CRIMINAL LAW.
Action of trial court in overruling motion to exclude testimony of state's rebuttal witness who had been jointly indicted with defendant and whose testimony, if true, would have shown defendant's guilt, on ground that such testimony should have been obtained in direct examination, held proper, where part of testimony was in rebuttal and part was not, and defendant had failed to separate rebuttal testimony from other testimony in making objection.
APPEAL from circuit court of Forrest county.
HON.W.J. PACK, Judge.
Chester Jackson was convicted of grand larceny, and he appeals. Affirmed.
Dudley W. Conner, of Hattiesburg, for appellant.
In the absence of a controlling statute an indictment for larceny should describe the property alleged to have been taken with reasonable certainty, or, as is sometimes said, with "certainty to a common intent."
17 R.C.L., p. 55; Pitts v. State, 76 Miss. 140; Moran v. State, 135 So. 209; 36 C.J., p. 813.
Appellant complains that the action of the trial court deprived him of his constitutional guarantee of compulsory process for obtaining the attendance and testimony of witnesses in his favor.
Sec. 26, Const. 1890; Secs. 1530, 1532, 1535, Code of 1930.
A witness cannot refuse to answer as to a matter having no tendency to incriminate him.
70 C.J., p. 728, sec. 880.
There are authorities that hold a codefendant may be compelled to take the stand on the behalf of another, although he cannot be required to give self incriminating testimony.
McElwain v. Com., 142 S.W. 324, 146 Ky. 104; State v. Smith, 86 N.C. 705; State v. Rose, 61 N.C. 406; 28 R.C.L., p. 427.
By the provisions of the federal constitution and those of several states, the right to compulsary process to obtain the attendance of witness is secured to the accused. This right is absolute, of which he cannot be deprived either by the courts or the legislature; and an attachment is available where the witness fails to obey the subpoena, thus placing the accused on an equality with the state.
Underhill's Criminal Evidence (3 Ed.), sec. 396, p. 572; Alabama Sheppard v. State, 55 So. 514, 172 Ala. 363; Bank v. State, 93 So. 293, 18 Ala. App. 376, 207 Ala. 179, 24 A.L.R. 1359.
The privilege of a witness to refuse to testify on the ground that his testimony may incriminate or tend to incriminate him is strictly personal. Accordingly, a party to a suit cannot claim the privilege for the witness whether the party is the one who called the witness or not. Moreover, it is no part of the duty of counsel on the other side to advise the witnesses as to their privilege in the matter of incriminating testimony, and it is not error for the court to suppress his effort in that direction.
28 R.C.L., p. 426, sec. 11; Brown v. State, 66 So. 228.
The fact tending to criminate, which a witness may not be compelled to disclose, is a fact that would form a necessary and essential part of a crime.
Crum v. Brock, 101 So. 704; 28 R.C.L. 428, sec. 13; Judge Ethridge in "Mississippi Constitutions," p. 133.
In view of the court's refusal to allow the appellant the benefit of the testimony of the witness, Essie Colston its action in this regard becomes, in the humble opinion of counsel, an abuse of its discretion.
26 R.C.L., p. 1036; State v. Johnson et al., 75 So. 678; Jones Commentaries on Evidence (2 Ed.), sec. 2507. W.D. Conn, Jr., Assistant Attorney-General, for the state.
Upon the previous decisions of this court, the state submits that the court's action in overruling the demurrer was proper.
Jones v. State, 51 Miss. 718; People v. Jackson, 8 Barb. (N.Y.) 637; Rex v. Stroud, 6 Car. P. 535.
It is only necessary to observe that it is the substance, not the shadow which should inspire the administration of justice.
Pitts v. State, 115 Miss. 189, 76 So. 140.
In the case of Brown v. State, 108 Miss. 46, 66 So. 288, the court observed: "It is our opinion that the attorneys, as officers of the court, might properly ask the court to apprise the witness of his rights; but, certainly, they have no right to object to his testimony, if he desires to do so. The court cannot assume that the witness is unwilling to give evidence, unless the witness so states."
In the case at bar the district attorney, as an officer of the court, advised the court that the proposed witness had been jointly indicted with the defendant at the bar and that the state expected to prosecute him and asked the court to apprise the witness of his right to refuse to testify under the circumstances. The court did advise him of his rights and the witness exercised his privilege and declined to testify.
Spright v. State, 120 Miss. 752, 83 So. 84.
Where part of the testimony objected to is not subject to the criticism directed against it, it is not error to overrule a general motion to exclude.
Wampold v. State, 170 Miss. 732, 155 So. 350.
Error in admission of evidence can be predicated only on an objection thereto specifically pointing out the infirmity therein.
Wampold v. State, 170 Miss. 732, 155 So. 350; Lee v. State, 137 Miss. 329, 102 So. 296; Jackson v. State, 163 Miss. 235, 140 So. 683.
It is submitted that a part of the testimony of this witness was distinctly rebuttal in its nature.
Rose v. State, 170 Miss. 550, 155 So. 341; Williams v. State, 171 Miss. 324, 157 So. 717.
Appellant, Homer Colston, and Essie Colston were jointly indicted in the circuit court of Forrest county of the crime of grand larceny in the theft of a Ford automobile. Appellant was granted a severance and was tried separately and convicted and sentenced to a term of three years in the state penitentiary. From that judgment, he prosecutes this appeal.
Appellant raised the question by demurrer as to whether the indictment sufficiently described the automobile. He contends that the description failed to meet the provisions of section 26 of the constitution which requires that the defendant shall be informed of the nature and cause of the accusation against him. The automobile was described as "one certain Ford automobile, two-door make, of the property of Ben Stevens and of the value of more than twenty-five dollars, etc. This contention is without merit. Jones v. State, 51 Miss. 718, 24 Am. Rep. 658. In that case the defendant was charged and convicted of the larceny of a mule. The indictment described the mule as "one mule, the property of William Adkins." The court held that was a sufficient description. The opinion stated that it was not necessary to state the color, age, or any other particular concerning the mule by way of description or identity. Pitts v. State, 115 Miss. 189, 76 So. 140, does not sustain appellant's contention; on the contrary, it gives some support to the contention of the state. The subject of the larceny in that case was three yearlings and a cow, described in the indictment as "three certain yearlings and one certain cow, a more particular and accurate description of which is to the grand jury unknown, then and there the personal property of D.E. Spearman of the value of fifty dollars," etc. The evidence showed that the cow did not belong to Spearman, and under the evidence the jury might well have found that the yearlings were worth less than twenty-five dollars. There was no instruction to the jury to find the defendant not guilty as to the cow, nor any to find the value of the yearlings separate from the cow. The court said that former jeopardy as to the larceny of the cow could not be pleaded by the defendant, as the description of the cow was insufficient when the name of the owner was taken therefrom, clearly indicating that if the converse were true, the defendant could rely on former jeopardy.
Appellant offered Essie Colston as a witness. The district attorney thereupon stated to the court that Essie Colston was not only jointly indicated with appellant for the larceny of the automobile but was "also charged in a second indictment with unlawfully receiving this stolen goods," and asked the court to advise the witness of his constitutional right to refuse to incriminate himself. In response the court stated to the proposed witness that he could testify in the case if he wanted to but under the law he did not have to, and asked him if he was willing to do so. In response to this question the witness said: "I would rather not testify." The court then ruled that he should not be forced to testify, to which action of the court appellant excepted. Appellant's attorney then stated into the record what he expected to prove by the witness, which was, in substance, that the witness assisted appellant and Homer Colston in cleaning and working over the car for the purpose of selling it to Black, in whose possession it was found. It is not necessary to determine whether the procedure adopted by the court was correct or not, for it is manifest from what appellant expected to prove by the witness that his testimony would have tended to incriminate him. The fact that he, with appellant and the other joint defendant, was engaged in working the car over would have been, on his trial, a fact strongly tending to show his own guilt, although he denied guilt. It would have been error, therefore, if the court had forced the witness to testify.
After appellant's testimony had been concluded, the state put Homer Colston, who, as above stated, was jointly indicted with appellant and Essie Colston, on the witness stand in rebuttal. He had pleaded guilty to the charge and was awaiting sentence of the court. His testimony, if true, showed appellant's guilt as well as his own. Neither during the progress of his testimony, nor at its conclusion, did appellant object to it either in whole or in part upon any ground. The state followed him with another witness in rebuttal. While this witness was testifying, appellant's attorney moved to exclude the testimony of Homer Colston, using this language: "Comes the defendant and moves the court to exclude all the testimony of the witness Homer Colston for the reason that it is improper rebuttal testimony and should have been put on in direct examination." This motion was overruled by the court. Appellant urges that this action of the court is ground for a reversal of the judgment. Waiving the lateness of the objection, the trouble with appellant's position is that part of the testimony of this witness was in rebuttal and part of it was not. In such a case it is not error for the court to overrule a general motion to exclude. Appellant should have pointed out specifically the rebuttal evidence, separating it from the other. This was not done. Wampold v. State, 170 Miss. 732, 155 So. 350; Jackson v. State, 163 Miss. 235, 140 So. 683; Lee v. State, 137 Miss. 329, 102 So. 296.
Affirmed.