Opinion
No. 39461.
January 10, 1955.
1. Larceny — evidence — established venue — sustained conviction.
In prosecution for larceny of a cow, evidence was sufficient to establish venue, and sustain a conviction.
2. Larceny — possession of recently stolen property — presumption of guilt.
A presumption of guilt arises from possession of recently stolen property provided that proof is sufficient to establish that property was in fact stolen and that accused failed to give a reasonable explanation of his possession.
3. Criminal law — conflicts in testimony — credibility of witnesses — for jury.
Conflicts in the testimony and the credibility of witnesses are questions for the jury.
Headnotes as approved by Holmes, J.
APPEAL from the circuit court of Hinds County; M.M. McGOWAN, Judge.
James H. Adams, Raymond; John W. Prewitt, Vicksburg, for appellant.
I. The Trial Court erred in failing to peremptorily find the defendant not guilty for reason that the State failed to prove venue.
II. The Court erred in granting Instruction No. Two on behalf of the State, as follows: "The Court instructs the jury for the State that if you believe from the evidence in this case beyond every reasonable doubt that on the morning of July 24, 1951, the defendant, G.T. McBroom, had possession of one white-faced muley-headed cow, branded `P' on right hip, the property of Mrs. Dave Falkenheimer, and if you believe from the evidence beyond every reasonable doubt that said cow had been recently stolen, then such possession is a circumstance which may be considered by the jury and from which, in the absence of a reasonable explanation, the jury may infer guilt of larceny."
III. The Lower Court erred in refusing to instruct the jury for the defendant that the testimony of an accomplice must be viewed with great caution and suspicion, and must be reasonable, not improbable or self-contradictory, or substantially impeached.
IV. The jury's verdict is clearly erroneous when it failed to follow the Lower Court's instruction for defendant, whereby the Court told them that if the circumstances surrounding the crime charged are capable of any explanation consistent with defendant's innocence, you must acquit, for reason that the circumstances surrounding the crime charged were more consistent with defendant's innocence than guilt.
V. The verdict of the jury was contrary to the overwhelming weight of the evidence, and contrary to the staid principles of law applicable to this case.
VI. The Court erred in overruling the defendant's motion for peremptory instructions.
Collation of authorities: Algheri v. State, 25 Miss. 584; Boman v. State, 112 Miss. 786, 73 So. 787; Booker v. State (Miss.), 9 So. 355; Byrd v. City of Hazlehurst, 101 Miss. 57, 57 So. 360; Cole v. State (Miss.), 4 So. 577; Conway v. State, 177 Miss. 461, 171 So. 16; Cook v. State (Miss.), 28 So. 833; Creed v. State, 179 Miss. 700, 176 So. 596; Ewing v. State (Miss.), 9 So.2d 879; King v. State (Miss.), 48 So.2d 634; Ladner v. State (Miss.), 9 So.2d 878; Love v. State (Miss.), 195 So. 584; Lyle v. State, 193 Miss. 102, 8 So.2d 459; McBroom v. State, 217 Miss. 338, 64 So.2d 144; Manning v. State, 188 Miss. 393, 195 So. 319; Norwood v. State, 129 Miss. 813, 93 So. 354; Perdue v. State, 199 Miss. 624, 25 So.2d 185; Riley v. State, 103 Miss. 633, 60 So. 725; Sorrels v. State, 130 Miss. 300, 94 So. 209; Thompson v. State, 51 Miss. 353; Wade v. State, 175 Miss. 434, 167 So. 617; Watson v. State, 36 Miss. 593, 605; Whitten v. State, 189 Miss. 809, 199 So. 74; Wood v. State, 155 Miss. 298, 124 So. 353.
Joe T. Patterson, Asst. Atty. Gen., Jackson, for appellee.
I. Cited and discussed the following authorities: McBroom v. State, 217 Miss. 338, 64 So.2d 144; Shoemaker v. State, 222 Miss. 257, 75 So.2d 647.
The appellant, G.T. McBroom, was indicted at the September, 1951 regular term of the Circuit Court of the Second Judicial District of Hinds County for the larceny of one white-faced, muley headed cow, branded "P" on the right hip, of the value of $135.12, the property of Mrs. Dave Falkenheimer. He was tried at said term and convicted and sentenced to a term of five years in the state penitentiary. He prosecuted an appeal to the Supreme Court, and on said appeal the judgment of conviction was reversed because of the granting of an erroneous instruction for the State, and the case was remanded for a new trial. McBroom v. State, 217 Miss. 338, 64 So.2d 144. In reversing the case, the Court observed that the evidence on the part of the State was sufficient to sustain the conviction and that the same would have been affirmed but for the granting of said erroneous instruction. At the February, 1954 regular term of the Circuit Court of the Second Judicial District of Hinds County, the appellant was again tried on said indictment and was convicted and sentenced to a term of three and one-half years in the State penitentiary.
(Hn 1) On this appeal, the appellant makes two main contentions: (1) That the proof is insufficient to show the venue of the crime in the Second Judicial District of Hinds County, and (2) that the evidence is insufficient to support the conviction. Both of these contentions relate to the sufficiency of the evidence. It is conceded by both the State and the appellant that the evidence in the record before us on this appeal is substantially the same as the evidence in the record before us on the former appeal. It would be a sufficient answer to appellant's contentions, therefore, to say that this Court has held that the evidence is sufficient to sustain the conviction. However, we have again carefully examined this evidence and are of the opinion, as we were on the former appeal, that the evidence is amply sufficient to sustain the conviction. It can serve no good purpose to relate the evidence in detail. We think that the evidence amply establishes the fact that the cow in question was stolen from the one-quarter acre pasture of A.L. Puckett in the Second Judicial District of Hinds County, Mississippi. According to the testimony of the State's witness, Larry Smithson, the cow was, within a short period of time thereafter, in the possession of the appellant when the latter drove up to the arch in Vicksburg with the cow in his truck, and in accordance with prearrangements, turned the cow over to Smithson to be taken to the sales barn in Port Gibson and sold. No attempt was made by the appellant to explain his possession of the cow, but on the contrary, he wholly denied that he had ever been in possession of the cow or that he had ever seen the cow.
(Hn 2) "A presumption of guilt arises from the possession of recently stolen property provided that the proof is sufficient to establish that the property was in fact stolen and that the accused failed to give a reasonable explanation of his possession." Haney v. State, 199 Miss. 568, 24 So.2d 778.
(Hn 3) Since the State's proof was sufficient to establish the fact that the cow was stolen and was found in the recent possession of the appellant, and the appellant offered no reasonable explanation of such possession, but denied such possession, this, in our opinion, was sufficient to make out a case for the jury on the question of appellant's guilt or innocence. It is true that the appellant denied the testimony of Smithson and undertook to assail his credibility. But this only served to create an issue of fact for the jury on conflicting evidence. The credibility of the witnesses was a question for the jury. We think that the jury was amply warranted in accepting as true the State's proof, particularly in view of appellant's uncertain testimony and his conflicting statements to investigating officers shortly after the theft of the cow was discovered. We do not feel justified, therefore, in disturbing the verdict of the jury, and accordingly, the judgment of the Court below is affirmed.
Affirmed.
Roberds, P.J., and Hall, Lee and Kyle, JJ., concur.