Opinion
No. 38773.
May 11, 1953.
1. Evidence — hearsay — replevin.
In an action of replevin to recover stolen property, testimony as to what the thief said in connection with his plea of guilty was hearsay and was properly excluded.
2. Appeal — verdict against overwhelming weight of the evidence.
Where the verdict and judgment is contrary to the overwhelming weight of the competent evidence there will be a reversal and a remand for a new trial.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Lee County; RAYMOND T. JARVIS, Judge.
Douglas D. Shands and Cason Rankin, for appellant.
The appellant takes the position that the appellees based their defense not on the probability or the fact that they had bought the seed from other persons than Jack Ellis, but instead on the mere probability that they could have bought the seed from some other firm and the appellant contends that the evidence produced in court was sufficient to shift the burden of going forward with the evidence to the appellees. The appellant contends further that the testimony in behalf of the appellees did not meet the burden imposed upon them and that the verdict of the jury was clearly against the weight of the evidence. A verdict and judgment against the overwhelming weight of the evidence, when reasonably and impartially considered, should be reversed, and another trial granted on that ground alone. Montgomery Ward Co. v. Windham, 195 Miss. 848, 17 So.2d 208; Jones v. Carter, 195 Miss. 182, 13 So.2d 623; White, et al. v. McCoy, 7 So.2d 886.
The defense of the appellees was of a passive nature and they based their defense on the grounds that they did not know where they purchased the seed. They produced no evidence in the way of invoices to prove that they had bought the seed from other sources, and in view of the evidence introduced by the appellant, the refusal of the court below to peremptorily instruct the jury to return a verdict for the appellant placed upon the appellant the burden of proving the identity of the property beyond a reasonable doubt, rather than by a preponderance of the evidence. In view of the evidence as a whole, the testimony of the appellees does not conflict with that heard in behalf of the appellant but amounts only to a mere passive resistance; therefore, the court should have instructed the jury to return a verdict for the appellant. North v. Delta Chevrolet Co., 188 Miss. 252, 194 So. 478.
Noel Monaghan, for appellees.
The question of identification has been settled by the courts of Mississippi, as shown in the following cases: Brunson v. Volunteer Carriage Co., 93 Miss. 793, 47 So. 377; Scarborough v. Lucas, 119 Miss. 128, 80 So. 521; Johnson v. Sanders, 148 Miss. 472, 114 So. 334. However, the latest case and the one which appears to be almost exactly in point with the case at bar is Anderson, Clayton Cotton Co. v. Daniel, et al., 187 Miss. 255, 192 So. 432.
This appeal involves two replevin suits instituted by the appellants doing business as A.S. Levin, Seeds, of Chattanooga, Tennessee, against the appellees Kyle Brown and Evans McCulley, doing business as Brown and McCulley, a partnership at Tupelo, Mississippi, and which two suits were consolidated by agreement of the parties and tried as one cause. There was a jury verdict for the defendants, and the plaintiffs in replevin have prosecuted this appeal.
The great weight of the evidence clearly establishes the fact that the sheriff in executing the writs of replevin found in the possession of the defendants almost all of the personal property described in the affidavits in replevin, and that the same had been stolen from the warehouse of the plaintiffs in Chattanooga.
The sheriff testified that he levied upon the property pointed out to him by the defendants, and the great weight of the evidence shows that they had purchased the same from one Jack Ellis, a former truck driver of the plaintiffs, subsequent to July 21, 1950, after the said Ellis had been discharged as an employee of the plaintiffs.
The plaintiffs undertook to show that Jack Ellis plead guilty to the larceny of this property and was sentenced to the state penitentiary in Tennessee, but the proceedings sought to be introduced were incomplete in that there was no certified copy of the indictment contained therein.
(Hn 1) In that connection, they undertook to prove by Carl Levin that he was present in court and heard the said Ellis state in connection with his plea of guilty that he sold the property to the defendants which he was alleged in that indictment to have stolen from the plaintiffs. This testimony was objected to and the objection was properly sustained on account of being hearsay evidence. If the statements of Ellis as to where he got the property that he sold to the defendants were to be used at the trial, his deposition should have been taken in that behalf, subject to the right of cross-examination.
(Hn 2) However in view of the fact that the proof otherwise is so overwhelming that the property levied upon by the sheriff was delivered to the defendants by Ellis after it had been stolen from the plaintiffs, we have concluded that the verdict of the jury and the judgment appealed from must be reversed as being against the overwhelming weight of the evidence. Since the case is being reversed for a new trial, we refrain from commenting in further detail as to the proof on the trial of the case.
Reversed and remanded.
Hall, Lee, Holmes and Arrington, JJ., concur.