Opinion
No. 26970.
April 9, 1928.
1. BURGLARY. Larceny. Evidence held sufficient to support conviction for burglary and larceny.
In prosecution for burglary and larceny, evidence that while defendant did not actually enter storehouse that was burglarized, he first suggested burglary and planned details thereof and supplied automobile in which stolen goods were hauled away from place where they hid them outside of store, and that he received portion of stolen goods and actually assisted in hauling them away and secreting them, held to support conviction.
2. CRIMINAL LAW. In burglary prosecution, admitting evidence of defendant's admissions regarding committing other crimes held prejudicial error.
In prosecution for burglary and larceny, in which defense was based on theory that defendant was acting in conjunction with police officers in effort to detect crime, admitting evidence of alleged admissions of defendant that he had committed numerous other crimes wholly disconnected from crime for which he was on trial held prejudicial error.
3. CRIMINAL LAW. In criminal prosecution, generally, evidence which tends to show accused's commission of separate and distinct crimes is not admissible.
General rule is that in prosecution for crime evidence must be confined to issue and evidence which shows or tends to show commission by accused of separate and distinct crimes is not admissible.
APPEAL from circuit court of Coahoma county, Second district; HON.W.A. ALCORN, JR., Judge.
John W. Crisler and Chas. W. Crisler, for appellant.
In a case very close on the facts, as the case at bar, it is highly important to the appellant that all prejudicial evidence be excluded and that the jury be properly instructed. A single ruling on several of the matters contained in this record would perhaps have caused a different result at the hands of the jury. The record discloses many attempts to inject highly prejudicial and incompetent evidence into the trial. We particularly call the court's attention to the repeated efforts made by the state to show evidence of other burglaries alleged to have been committed by the appellant. The circuit judge ruled that it was competent. The improper efforts of the state's attorneys in attempting to prejudice the jury against the appellant would alone have been sufficient to entitle appellant to a new trial, even if the court had held to his ruling that evidence of other burglaries was incompetent. We call the special attention of the court to the fact that all of this testimony has reference to alleged burglaries committed before they even thought of going into this burglary. The witness directly testifies to this. Consequently, under no theory could this evidence be held competent. It was extremely damaging and prejudicial to the appellant and except for its admission the verdict of the jury doubtless would have been one of acquittal. See Whitlock v. State, 6 So. 237; Morris v. State, 8 S. M. 762.
The state, over the objection and exception of the appellant, was permitted to show that he was placed in the Mississippi Industrial and Training School at Columbia in 1922, although the state did not show that the appellant has ever been convicted of any offense. We feel that this was manifest error and calculated to prejudice the jury.
It will be seen by reference to chapter 337, Laws of 1926, section 5697, Hemingway's Code 1927, that a child may be admitted to the Industrial Training School without having been convicted of any offense. The sole purpose of this testimony was to prejudice the jury. This evidence produced the effect on the minds of the jury that it was calculated to produce, and that although incompetent, it perhaps brought about the conviction of the appellant.
Rufus Creekmore, Assistant Attorney-General, for the state.
Counsel argue that the court was in error in permitting the state to prove that the defendant had committed crimes separate and distinct from that for which he was then being tried. The rule is of course well settled that generally evidence of the commission of crimes separate and distinct from that for which the defendant is being tried are inadmissible in evidence. There are, however, certain well-recognized exceptions to this rule. In this cause the court in every respect has followed the proper course in the admission of the testimony which is here complained of. It will be observed that the district attorney made the statement that this testimony was being introduced because the statements made by the defendant to his co-conspirators with reference to other burglaries was an inducement to them to commit this particular crime. The court thereupon made the statement that, if the testimony showed this to be the facts then it would be competent, otherwise not. The rule in this state is well settled that although it is not permissible on the trial of the defendant, to prove in dependent and distinct crimes, yet there are certain well-recognized exceptions to the rule, among which are: where the crimes show a part of the system where they are part of the res gestae; where the identity of the defendant is in question; where they shed light upon the motive of the defendant, or in cases of conspiracy, where the purpose is to show a criminal intent. Cotton v. State, 17 So. 322; Dabney v. State, 82 Miss. 252, 33 So. 973; Collier v. State, 106 Miss. 613, 64 So. 373; Hurd v. State, 137 Miss. 178, 102 So. 295.
Counsel next argue that the court was in error in permitting the state to show that the appellant was placed in the Industrial Training School at Columbia. The objection of counsel comes too late. The state witness, without objection, testified that the defendant had been in the Industrial Training School. When the defendant was on cross-examination, the state showed by his testimony, without objection, that he had been in the Industrial Training School at Columbia. Under these circumstances, it becomes exceedingly difficult to see how the defendant has been prejudiced in this respect. Counsel, however, cite section 5697, Hemingway's Code 1927, the section creating the Industrial School, and argue that, under this section, a person may be committed to the school whether they have been convicted of an offense or not. It is evident that counsel in this connection overlooked the provisions which provides that the school is: "For the care and training of children who are found to be destitute, abandoned, or delinquent, where hereinafter defined." From Sec. 5702, Hem. Code 1927, it will be seen that it was impossible for the defendant to have been committed to the school unless he had been convicted of some crime involving moral turpitude, or unless he was immoral, delinquent, or incorrigible.
Argued orally by Jno. W. Crisler, for appellant, and Rufus Creekmore, for the state.
The appellant, Thomas McLin, was convicted in the circuit court of Coahoma county on a charge of burglary and larceny, and was sentenced to the state penitentiary for a term of five years, and from this conviction and sentence he prosecuted this appeal.
The conviction of the appellant, who is about eighteen years of age, is based upon the testimony of two accomplices about seventeen years of age. The testimony of these accomplices, if believed, amply warrants the verdict. They testified that while the appellant did not actually enter the storehouse that was burglarized, he first suggested the burglary and planned all the details thereof, and supplied the automobile in which the stolen goods were hauled away from the place where they hid them outside of the store, and that he received a portion of the stolen goods and actually assisted in hauling them away and secreting them.
Over the objection of the appellant, these witnesses were permitted to testify that at the time the burglary was planned, as well as previously, the appellant stated to them that he had previously blown a safe in the city of Jackson and easily got away with it, and that he had committed numerous burglaries in the city of Jackson and had been able to get away with them and stay on the good side of the officers of the law.
The appellant denied that he had anything to do with planning the burglary, or that he knew anything of it until the three perpetrators asked him to assist them in hauling the stolen goods and secreting them. His defense was based on the theory that he was acting in conjunction with the police officers of the city of Clarksdale in an effort to detect crime, and particularly to detect the perpetrators of a series of burglaries that had occurred in that city. There was some testimony tending to substantiate this theory.
The appellant assigns as error the action of the court below in permitting the introduction in evidence of the statements or admissions of the appellant that he had committed numerous other crimes wholly disconnected from the crime for which he was on trial. We are of the opinion that this testimony was inadmissible and highly prejudicial. The general rule is that, in a prosecution for crime, the evidence must be confined to the issue, and evidence which shows or tends to show the commission, by the accused, of separate and distinct crimes, is not admissible. To this rule there are certain well-established exceptions; but this record does not bring the case within such exceptions.
It is also assigned as error that on cross-examination of the appellant the state was permitted to show that he had at one time been committed to the Mississippi Industrial Training School. Without now deciding whether the admission of this testimony was reversible error, we think the cross-examination of the appellant should have been confined to the limits prescribed by section 1920, Code 1906 (section 1653, Hemingway's 1927 Code), which provides that the credibility of any witness may be impeached by showing that such witness has been convicted of crime. For the error above indicated, the judgment of the court below will be reversed and the cause remanded.
Reversed and remanded.