Opinion
No. 37538.
April 10, 1950.
1. Criminal procedure — evidence of conduct of accused when taken to scene of alleged offense.
Testimony that accused struggled with officers in the effort to escape when taken to the scene of the alleged robbery, about the time the victim, who had been struck to the ground regained consciousness, was admissible as throwing light upon the question of his guilt of the robbery for which he was intercepted and arrested.
2. Criminal law — intoxication — when issue for the jury.
When the defense to a charge of robbery was that the accused at the time was so thoroughly drunk as to be incapable of forming an intent to commit larceny, an essential element of the crime, and four witnesses testified that, although he had been drinking, he was not drunk, the issue was properly submitted to the jury under proper instructions.
Headnotes as approved by Hall, J.
APPEAL from the circuit court of Leflore County; ARTHUR JORDAN, Judge.
Means Johnston, for appellant.
POINT 1. The admission in evidence of the details of the fight between appellant, a Negro, and the white police officers, after appellant had been identified, was highly prejudicial, inflamed the jury, and caused the jury to ignore appellant's defense, and deprived him of due process of law.
It is the general rule of law, that in prosecution for crime, evidence which shows or tends to show the commission, by the accused of other separate crimes is not admissible, and if it be doubtful whether such evidence falls within any of the exceptions to the rule, it should be excluded. Whitlock v. State, 6 So. 273; Brown v. State, 72 Miss. 997, 17 So. 278; Bogents v. State, 144 Miss. 442, 110 So. 114; McLin v. State, 150 Miss. 159, 116 So. 533; Willoughby v. State, 154 Miss. 653, 122 So. 757; Floyd v. State, 166 Miss. 15, 148 So. 226; Gunter v. State, 180 Miss. 769, 178 So. 472; Kehol v. State, 194 Miss. 339, 12 So.2d 149; Crafton v. State, 200 Miss. 10, 26 So.2d 347; Augustine v. State, 201 Miss.
(1) Upon the trial of an indictment, a previous crime committed by defendant can be proved only: (a) where it is connected with the one charged, and sheds light upon the motive of defendant; or (b) where it forms a part of a chain of facts so intimately connected with the whole that it must be heard in order to interpret its several parts; or (c) in cases of conspiracy, uttering forged instruments or counterfeit coin, and receiving stolen goods, for the sole purpose of showing criminal intention. Raines v. State, 81 Miss. 489, 33 So. 20; Collier v. State, 106 Miss. 613, 64 So. 373.
(2) Evidence of other crimes committed by accused is relevant to prove identity. Hurd v. State, 137 Miss. 178, 102 So. 293; Willoughby v. State, 137 Miss. 653, 122 So. 757; Brown v. State, 171 Miss. 157, 157 So. 363.
(3) Where the offense charged is so interwoven with other offenses they cannot be separated. Collier v. State, 106 Miss. 613, 64 So. 373; Clark v. State, 181 Miss. 455, 180 So. 602, Massey v. State, 19 So.2d 476; Bangren v. State, 198 Miss. 359, 22 So.2d 360; Rossetto v. City of Bay St. Louis, 97 Miss. 409, 52 So. 786; May v. State, 38 So.2d 726.
In the case at bar appellant had already been arrested, and carried back to the scene of the alleged crime, and had been identified, before the fight happened.
Appellant admits that evidence of the fact that he attempted to flee was admissible to show motive, but the details of the fight, after he was identified, which is a separate offense, were not admissible.
POINT 2. The verdict of the jury convicting appellant of the crime of robbery is against the overwhelming weight of the evidence.
It is the contention of the appellant that at the time the alleged crime was committed he was intoxicated to such an extent that he was incapable and incompetent of forming a felonious intent to steal.
In the case of Edwards v. State, 178 Miss. 696, 174 So. 57, the Court held in a larceny case, that since the specific intent to steal is essential element of larceny, accused can show as a defense that he was too drunk to have such intent when he committed acts which would otherwise constitute larceny. In the case at bar a specific intent to steal is an essential element of robbery, and of course, if appellant was too drunk to have such intent, he is not guilty of robbery, but under the law would be guilty of assault and battery, for which offense appellant could have been given $500, and six months in jail.
George H. Ethridge, Acting Attorney General, for appellee.
This is an appeal from a conviction of robbery and a penitentiary sentence of three years. The victim of the robbery was walking at night along a city street in Greenwood and as he passed a tree some one who had been hiding behind the tree struck him, knocked him to the ground, removed from his pocket a purse containing a $10.00 bill and a $5.00 bill and ran away. Two eyewitnesses to the attack flagged a police car, advised the officers what had happened, described the appellant, and pointed the officers to the direction in which he had fled. The officers gave pursuit, apprehended appellant a few blocks away, placed him under arrest, searched him and found a $10.00 bill and a $5.00 bill upon his person, and also found the victim's purse on the ground by the side of a store along the route which appellant had taken. They returned appellant to the scene of the crime, arriving there about the time the victim regained consciousness, and the two eyewitnesses immediately identified appellant, in his presence, as the robber; this identification was not disputed by appellant but he forthwith undertook to escape and it was necessary that he be subdued by the officers which was accomplished by the use of the usual policeman's club.
(Hn 1) The trial court admitted evidence, over the objection of appellant, as to what occurred when appellant was returned to the scene and this is the basis of the first assignment of error which is directed particularly to the disclosure of the details of appellant's struggle with the officers. We observe in passing that upon direct examination the state witnesses did not go into detail in relating what occurred on that occasion, but these details were developed on cross-examination. Using the words of this Court in the case of Rosetto v. City of Bay St. Louis, 97 Miss. 409, 414, 52 So. 785, 786, this evidence was proper "not to show that appellant was guilty of another offense, but as throwing light on that question of his guilt of the crime for which he was arrested. His conduct at the time, and any statements he made, are competent for that purpose. If the appellant had requested it, the court should have instructed the jury as to the purpose for which such testimony was admitted." The case of Brown v. State, 171 Miss. 157, 157 So. 363, is also directly in point on this question and in our opinion this assignment is without merit.
(Hn 2) The only other assignment of error argued by appellant is that the verdict is contrary to the overwhelming weight of the evidence for the reason that he was so thoroughly drunk that he was incapable of forming an intent to commit larceny which is an essential element of the crime. Appellant was the only witness in his own behalf and he testified that he had imbibed so freely prior to the robbery that he could not remember any thing that occurred on the night in question. Four other witnesses testified that appellant had been drinking but was not drunk. Thus there was presented a question for the jury and this issue was submitted to the jury by two instructions granted to appellant. The verdict against appellant was abundantly supported by the proof and was not contrary to the overwhelming weight of the evidence. Consequently the judgment of the lower court is affirmed.
Affirmed.