Summary
In Passons v. State, 239 Miss. 629, 124 So.2d 847 (1960), a robbery victim identified Passons from a group of photographs which were held to be properly excluded because they included pictures of convicted criminals showing their file number and that they were convicts. The present situation is distinguished from Passons because the trial judge required anything suggestive that the individuals in the photographs were convicts was covered or excluded.
Summary of this case from Taylor v. StateOpinion
No. 41707.
November 21, 1960.
1. Robbery — evidence — conviction of robbery with firearms sustained as against defense of alibi.
Evidence sustained conviction of robbery with firearms as against defense of alibi. Sec. 2367, Code 1942.
2. Criminal law — evidence — identification of accused — character and adequacy of evidence for jury.
Character and adequacy of evidence of identification of an accused is primarily a question for the jury provided the evidence reasonably complies with the requirement of proof beyond a reasonable doubt.
3. Criminal law — evidence — identification of accused — evidence required to support conviction — number of witnesses as not controlling.
The jury need not be controlled by the number of witnesses testifying to the identification of an accused and identification based on the testimony of a single witness if complying with the standard in criminal cases can support a conviction even though denied by the accused.
4. Criminal law — identification — instructions — reasonable hypothesis consistent with innocence instruction properly refused.
In robbery prosecution, requested instruction authorizing an acquittal if there was any reasonable hypothesis consistent with innocence was properly refused where the testimony of identification was not circumstantial but direct.
5. Robbery — instructions — refusal of instruction requiring jury to believe that defendant took from victim exactly the amount charged was not error.
Refusing an instruction requiring jury to believe that the defendant took from the victim exactly the amount charged was not error when the evidence showed that the exact amount taken was not known but that it approximated $125.
6. Robbery — instructions — requested instruction requiring an acquittal unless jury found that money was taken from person of victim was properly refused.
Requested instruction which erroneously stated that the jury should acquit defendant unless it found that the money was taken from the person of the victim, when the evidence showed that part of it was taken from her person and part from the safe, was properly refused. Sec. 2367, Code 1942.
7. Criminal law — evidence — identification — pictures from police files by which victim identified accused properly excluded from evidence.
Where witness testified that the victim identified the defendant from a group of pictures which he sent her and also from a lineup at the jail, pictures which were offered only for identification and which the jury did not see were properly excluded.
Headnotes as approved by Ethridge, J.
APPEAL from the Circuit Court of Montgomery County; HENRY L. RODGERS, Judge.
Hugh L. Bailey, Rupert Ringold, Winona, for appellant.
I. Appellant was prejudiced by failure of trial court to grant defendant's instruction number seven, which is as follows: "The Court instructs the jury if the jury can deduce from the facts and circumstances surrounding the case, either from the evidence or the lack of evidence, any reasonable hypothesis consistent with the innocence of the defendant, then there is a reasonable doubt of his guilt, and the jury should return a verdict of not guilty". Brown v. State, 219 Miss. 748, 70 So.2d 23; Cohran v. State, 219 Miss. 767, 70 So.2d 46; Grant v. State, 219 Miss. 800, 70 So.2d 28; Newton v. State (Miss.), 90 So.2d 375; Walton v. Owens, 244 F.2d 383.
II. Appellant was prejudiced by failure of trial court to grant defendant's instruction number eight, which was as follows: "The Court instructs the jury for the defendant, Robert Earl Passons, that unless you believe from the evidence herein beyond all reasonable doubt and to a moral certainty that the defendant, Robert Earl Passons, on or about the 8th day of January, 1959, in the City of Winona, Montgomery County, Mississippi, did unlawfully and feloniously make an assault on Mrs. G.C. Castle and did then and there feloniously put the said Mrs. G.C. Castle in the fear of some immediate and great danger to her person by then and there feloniously exhibiting in a threatening manner, a deadly weapon, to-wit, a pistol, and that the said Robert Earl Passons did feloniously take from the person of and against the will of Mrs. G.C. Castle the sum of $125 in good and lawful money of the United States and that the said Robert Earl Passons did take, steal and carry away said property unlawfully and feloniously and failing to believe all of the above from the evidence, it is your duty to return a verdict of not guilty". Jeffcoat v. State (Miss.), 21 So.2d 8; Miller v. State, 198 Miss. 277, 22 So.2d 164; Stubbs v. State, 206 Miss. 485, 40 So.2d 256; Westbrook v. State, 202 Miss. 426, 32 So.2d 251.
III. It was prejudicial error to appellant for Court to overrule objections to introduction of exhibits 1, 2, 3, 4, 5 and 6 to testimony of Gwin Cole, said exhibits purporting to be photographs out of police files of the appellant.
A. Such evidence of photographs were without proper foundation and were not used solely for identification but were used to establish existence of former violation and thereby deprived the defendant of his constitutional rights under the Fifth Amendment and under the Constitution of the State of Mississippi.
B. Such evidence must be viewed with care. It failed under necessary rules. Carr v. Columbus Greenville R. Co., 210 Miss. 63, 48 So.2d 630; Fore v. State, 75 Miss. 727, 23 So. 710; Koestler v. Burton, 207 Miss. 40, 41 So.2d 362.
C. Such evidence was plainly prejudicial and deprived the appellant of due process of law. Brett v. State, 94 Miss. 669, 47 So. 781; Gulfport Fertilizer Co. v. Bilbo, 178 Miss. 791, 174 So. 65.
D. Photographs should be excluded when they unduly emphasize the claims or evidences of one of the parties. Kirsch v. Ford, 170 Md. 90, 183 A. 240; Mandorff v. State (Fla.), 196 So. 625; 32 C.J.S. 612.
IV. The verdict was contrary to law and the weight of the evidence. Bell v. State, 89 Miss. 810, 42 So. 542; Howard v. State, 182 Miss. 27, 181 So. 525; Johnson v. State (Miss.), 198 So. 554.
V. There is but one question in this criminal case; has the guilt of the defendant been established beyond a reasonable doubt? Clanton v. State (Miss.), 49 So.2d 267; Dawson v. State, 62 Miss. 241; Garvin v. State, 201 Miss. 751, 43 So.2d 209; Merrell v. State (Miss.), 39 So.2d 306; Pollard v. State, 53 Miss. 410.
VI. Evidence on prosecution for robbery with deadly weapon should be scrutinized carefully. Herron v. State, 176 Miss. 795, 170 So. 536; Lenzy v. State (Miss.), 87 So.2d 572; Moore v. State (Miss.), 2 So.2d 832.
G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. Appellant was not prejudiced by failure of the trial court to grant defendant's Instruction No. 7. Smith v. State, 233 Miss. 886, 103 So.2d 360; Alexander's Mississippi Jury Instructions, Sec. 1501; Mississippi Digest, Criminal Law, Key No. 814(17).
II. Appellant was not prejudiced by the failure of the trial court to grant his Instruction No. 8.
III. As to the introduction of the photographs. Allegrezza v. State, (Miss.), 120 So.2d 780; Eslick v. State, 238 Miss. 666, 119 So.2d 355; Ellis v. State, 227 Miss. 440, 86 So.2d 330; McAfee v. State (Miss.), 40 So.2d 271; Ransom v. State, 149 Miss. 262, 115 So. 208.
IV. The verdict was not contrary to the law on the weight of the evidence.
Appellant, Robert Earl Passons, was convicted in the Circuit Court of Montgomery County of robbery with firearms. Miss. Code 1942, Rec., Sec. 2367. He was sentenced to ten years in the state penitentiary, and appeals.
(Hn 1) The evidence was sufficient to support the conviction. Mr. and Mrs. G.C. Castle operated a motel in Winona. On the night of January 8, 1959, Mrs. Castle was keeping the office. Her husband was ill and had retired. Around 11:35 p.m. two men entered the office and one of them, the leader, pointed a pistol at Mrs. Castle, required her to open the safe, and took from her about $125 in cash. The crime took place over a period of about twenty five minutes, while the robbers were threatening Mrs. Castle in order to get her to open the safe. Her testimony is the only evidence connecting defendant with the crime. We have examined it carefully. Mrs. Castle made an intelligent and perceptive witness. She was with defendant and his accomplice, according to her testimony, around twenty five minutes, and had ample time to observe and remember his appearance. She was positive in her identification of Passons, stating she could not "possibly be mistaken," and was "just as positive as a person can be." Her eyesight was good, she did not wear glasses, and certainly her powers of perception and memory appeared to be sound. The jury was amply warranted in accepting her testimony identifying defendant as one of the robbers.
Defendant denied he was guilty, and said that on that night he was with Jerry L. Knotts and Billy Polk in Jackson, about ninety miles from Winona. However, Knotts testified that he saw Passons early that afternoon, and no later; and Polk said he did not see defendant after 8 to 8:30 p.m. Mrs. Strong, another witness for defendant, stated on cross-examination that she saw Passons two days after the robbery occurred. He was going to Vicksburg and then to California, and told her, "I am hot, I've got to get out of town," that he had written some bad checks. In short, the witnesses for defendant do not support his asserted alibi, since they do not place him in Jackson any later than three hours before the crime occurred. Moreover, the testimony of Mrs. Castle was exceptionally strong, and amply warranted the jury in accepting her identification of Passons as the guilty man, and rejecting defendant's assertion he was somewhere else.
(Hn 2) The character and adequacy of evidence of identification of an accused in a criminal case is primarily a question for the jury, provided the evidence could reasonably be held sufficient to comply with the requirement of proof beyond a reasonable doubt. (Hn 3) The jury need not be controlled by the number of witnesses testifying to the identification of an accused. Identification based on the testimony of a single witness, if complying with the standard in criminal cases, can support a conviction, even though denied by the accused. The jury can appraise the truthfulness of an asserted alibi. In short, positive identification by one witness of the defendant as the perpetrator of the crime may be sufficient, as in the instant case. 23 C.J.S., Criminal Law, Sec. 920, p. 192.
(Hn 4) The trial court correctly refused appellant's requested instruction which would have authorized an acquittal if there was any reasonable hypothesis consistent with innocence. This theory is applicable only to cases resting entirely upon circumstantial evidence. Smith v. State, 233 Miss. 886, 889, 103 So.2d 360 (1958). Certainly Mrs. Castle's testimony was not circumstantial but direct evidence by the victim of the crime. (Hn 5) Nor was there any error in refusing the instruction requested by defendant which would have required the jury to believe that he took from Mrs. Castle exactly $125, when the evidence showed that the exact amount taken was not known but it approximated $125. (Hn 6) Moreover, the instruction erroneously stated that the jury should acquit defendant unless it found the money was taken from the person of Mrs. Castle, when the evidence showed that part of it was taken from her person, and part from the safe. Code Sec. 2367.
(Hn 7) The State offered Gwin Cole, Assistant Director, Bureau of Identification of the Mississippi Highway Patrol, who testified (as did a deputy sheriff) that Mrs. Castle identified Passons from a group of pictures which he sent her, and also from a lineup at the jail. The trial court properly sustained defendant's objection to the introduction of these pictures in evidence. They were offered only for identification, and the jury did not see them. On cross-examination defendant's counsel developed in detail that the pictures were those of several convicted criminals in the files of the Highway Patrol. For both of these reasons, there was no error.
Affirmed.
McGehee, C.J., and Kyle, Holmes, and Gillespie, JJ., concur.