Poore v. State

Full title: POORE v. STATE

Court: Supreme Court of Mississippi, In Banc

Date published: Mar 7, 1949

37 So. 2d 3 (Miss. 1949)

37 So. 2d 3

Opinion

October 11, 1948. Appeal dismissed and certiorari denied in the Supreme Court of the United States, March 7, 1949. 93 L.Ed. (U.S.) 611.

1. Criminal procedure — venue — circumstances, shown by.

When the dead body was found in the judicial district of the county wherein the indictment for murder was found and the trial had, and it is shown that the accused was with the deceased, and was the last and only person so seen with him, late at night, near the place where the body was found, and that later the accused appeared alone at the residence of a relative a few miles away in possession of the automobile of the deceased and that the accused also had in his possession the watch and the personal baggage of the deceased, the facts were sufficient to sustain venue in the judicial district of the county in which the dead body was found.

2. Criminal procedure — circumstantial evidence sufficiency of.

Venue as well as guilt may be proved either by circumstantial or by direct evidence; and where a conviction depends upon circumstantial evidence, the legal test of its sufficiency for that end is its power to satisfy the understanding and conscience of the jury and is sufficient if the circumstances produce moral certainty, to the exclusion of every reasonable doubt.

3. Criminal procedure — corpus delicti — circumstances sufficient to establish.

Proof that the skull of the deceased was broken into fragments and that the third and fourth vertebrae of the neck were separated is sufficient to establish that it was not done by the deceased and that it was by a criminal agency and that the offense was murder.

4. Criminal procedure — requiring accused to stand up for identification — no motion to exclude physical evidence.

When at the request of the prosecution the accused was directed to stand up for identification by a witness, the error, if any, is not reviewable in the absence of a motion to exclude the physical evidence.

5. Searches and seizures — complaint not available to party who denies ownership.

Complaint that evidence was obtained by an unlawful search is not available to a party who denied ownership and possession of the property searched.

6. Arrest — examination of incriminating articles by arresting officer.

When an arrest is lawful the arresting officer as an incident thereto may examine incriminating articles then and there present, which are connected with the crime as its fruits.

7. Criminal procedure — proof of guilt by circumstantial evidence — undenied.

When the guilt of accused has been shown by circumstantial evidence beyond a reasonable doubt, and the accused introduces no evidence either in denial or explanation the proof becomes conclusive and no motion to exclude will be entertained.

Headnotes as approved by Montgomery, J.

APPEAL from the circuit court of Jones County; F. BURKETT COLLINS, J.

W.A. Jones and J.A. McFarland, Sr., for appellant.

The State failed to prove venue. The State failed to prove that the circuit court of the first judicial district of Jones County, Mississippi, had jurisdiction. The failure of the State to prove venue and jurisdiction is in violation of Article 3, Section 26, of the Constitution of the State of Mississippi, and the "Due Process of Law" clause (Fourteenth Amendment) of the Constitution of the United States. Likewise, the State failed to prove that the mortal stroke or blows, or other cause of death, occurred or was inflicted (commenced or consummated) in the first judicial district of Jones County, Mississippi, or the deceased, A.H. Hover, died in the first judicial district of Jones County, Mississippi, as is required by Sections 2419, 2427, 2428, 2429 and 2430 of the Mississippi Code of 1942.

The most that can be said as to the evidence presented to establish venue and jurisdiction is that a badly decomposed body of a human being, identified as A.H. Hover, was found approximately 15 miles south of Laurel, Mississippi, on a country road, a distance of approximately a quarter of a mile from Highway 15. There is not one scintilla of proof to show the place the crime, if any, was committed or the place where the deceased died or how or under what circumstances the deceased came to his death. The State did not offer proof or attempt to prove that the deceased was either murdered or died at the scene of where the body was found. The proof presented by the State does not show that a single witness ever saw appellant in the first judicial district of Jones County, Mississippi. The proof of the State places appellant in Laurel, Mississippi (in the second judicial district of Jones County, Mississippi) and at Waynesboro, in Wayne County, Mississippi, and at Richton in Perry County, Mississippi. There is no proof to show whether the deceased died from a criminal agency or whether he died from a natural death. If everything was true that the State attempted to prove, same still did not establish venue and jurisdiction in the first judicial district of Jones County, Mississippi. The inconsistent proof relied upon for venue and jurisdiction by the State is possibilities, conjecture, imagination or what could have happened in the premises. In attempting to prove venue and jurisdiction, the State tried to show what could have happened, instead of what did happen.

In fact, there was no evidence to show where the crime, if any, was committed or consummated or whether same was committed or consummated in the first judicial district of Jones County, Mississippi, or whether in some other judicial district or whether in some other county or state. There was no question of county or judicial district boundary lines in issue as the State wholly failed to show by the evidence that a crime was committed or if committed, the place where same was committed or inflicted or consummated.

It is true that venue may be shown by circumstantial evidence; Holloway v. State, 24 So.2d 857; Ussery v. State, 154 Miss. 704, 123 So. 854; 16 C.J. p. 768, Section 1573; 23 C.J.S., Criminal Law, Section 914, but there is no evidence, either circumstantial or otherwise, to show that a murder was committed, occurred or was inicted, commenced or consummated in the first judicial district of Jones County, Mississippi, or that the deceased, A.H. Hover, died in the first judicial district of Jones County, Mississippi.

Proof of venue in criminal cases is jurisdictional. Johnson v. State, 186 Miss. 544, 181 So. 115. The State wholly failed to establish venue in the first judicial district of Jones County, Mississippi, and therefore, the court below never had or acquired competent jurisdiction. Circumstances rendering it possible that a crime was committed within the court's jurisdiction are insufficient to show venue, where from such circumstances it is as reasonable and possible that it was committed beyond its jurisdiction. 16 C.J., p. 769, Section 1574. The proof shows overwhelmingly that it was reasonable and possible that the crime, if any, was committed beyond the jurisdiction of the court below. Same could have been inflicted or consummated in any county or state in the Union. Neither was appellant connected with any purported crime.

The State failed to prove the corpus delicti, and if same was proven, the State failed to establish the said corpus delicti by proof aliunde the admissions of the appellant.

"Corpus delicti" in homicide cases consists of facts of deceased's death and existence of criminal agency as cause thereof, Brook v. State, 178 Miss. 575, 173 So. 409. In a prosecution for murder, the corpus delicti consists of proof of the facts forming the basis of the offense and of the existence of a criminal agency as the cause thereof. People v. Ford, (Cal.) 258 P. 1111; 9 Words and Phrases (Permanent Edition) Page 754.

If everything was true that the State attempted to prove concerning the corpus delicti, same would only amount to this: i.e. that appellant came to Mississippi with the deceased and came to the vicinity of Laurel, Mississippi, and Ovett, Richton and Waynesboro, Mississippi; that the deceased and appellant arrived in said vicinity either on the 6th or 7th day of July, 1947; that thereafter, appellant had deceased's automobile and some of his personal effects; and that the body of the deceased was found on the 10th day of July, 1947. Such possession could not establish the corpus delicti beyond a reasonable doubt. There was no proof whatsoever that the crime of murder was committed or to show the criminal agency thereof. There were no witnesses that testified that a crime had been committed or connected appellant with murder. There was not a single witness that saw appellant in the first judicial district of Jones County, Mississippi, or in any other county or district, except in the city of Laurel, which is in another judicial district outside of the district in which applelant was convicted. Even with the stateents made by appellant to the F.B.I. agents, police officers and others, appellant completely exonerated himself from having committed the crime of murder. The admissions of the appellant that he was with the deceased in Mississippi, in Wayne County, Mississippi, and that he acquired the automobile of deceased, would not aid the State in establishing the corpus delicti. The statements or admissions made to these officers were not even incriminating. These statements could not aid in the establishment of the corpus delicti. The court held in Heard v. State, 59 Miss. 545, that slighter evidence of the corpus delicti is sufficient for its establishment where the commission of the crime has been confessed by the defendant. However, the admissions, or statements made by the appellant was not a confession of any crime whatsoever; in fact said statements and admissions did not show that appellant had committed any crime or that he had committed the crime of murder. "All that is necessary is for the jury to belivee that the evidence as to the corpus delicti, when viewed in the light of confession, is sufficient to establish that a real, and not an imaginary crime has been confessed . . ." Walker v. State, 127 Miss. 249, 89 So. 921; Patterson v. State, 127 Miss. 256, 90 So. 2; Garner v. State, 132 Miss. 815, 96 So. 743; Perkins v. State, 160 Miss. 720, 135 So. 357. All the proof of the State was imaginary. All of the evidence shown in the admissions and statements by appellant would merely go to the credibility of appellant, since same was merely oral statements and not confessions. Corpus delicti must be shown by proof aliunde the admissions, statements or confession of accused, to prevent the conviction of a person upon his confession of what may later prove to be merely an imaginary crime. But where, for instance, either the death of a person, the burning of a house occur, disappearance of property has been clearly established, (murder was not first established in this case), then the fact that such result was produced by a criminal agency may be shown by circumstantial evidence. Such fact is not required to be shown beyond a reasonable doubt by other evidence where the accused has made a free and voluntary confession but such a confession may be invoked in aid of the other proof to establish the corpus delicti beyond a reasonable doubt . . . Walker v. State, supra; Patterson v. State, supra; Garner v. State, supra; Nichols v. State, 165 Miss. 114, 145 Co. 903; Whittaker v. State, 169 Miss. 517, 142 So. 474; Keeton v. State, 175 Miss. 631, 167 So. 68; Anderson v. State, 184 Miss. 892, 186 So. 836; Gross v. State, 191 Miss. 383, 2 So.2d 818; Phillip v. State, (Miss.) 16 So.2d 630, but there is no proof whatsoever and no witness saw appellant with the deceased within Mississippi or connected appellant with a crime of murder. The proof shown by the record shows inconsistencies, probabilities, conjecture and imagination and same could not support the establishment of the corpus delicti beyond a reasonable doubt.

The State wholly failed to establish the criminal agency or connect the appellant with the purported crime of murder (Taylor v. State, 108 Miss. 18, 66 So. 321, and Brief on Corpus Delicti, 159 ALR 524-541) and therefore, failed to establish the corpus delicti, and if same was established, it certainly was not established aliunde the statements and admissions of appellant.

The court erred in requiring the appellant, over his objections, to stand up for the purpose of being identified and giving evidence against himself, in violation of his constitutional rights as contained in the constitutions of the State of Mississippi and the United States.

The court required appellant, over his objections, to stand up in the presence of the jury for the purpose of being identified by a negro, Rector Garrett. It is apparent that the purpose of this was to require the appellant to stand up so that said negro could view appellant, therefore requiring appellant to give evidence against himself, in violation of the Fourth and Fifth Amendments to the Constitution of the United States and Section 26, Article 3 of the Constitution of the State of Mississippi. Our chief complaint is that this action of the court not only constituted testimonial compulsion, but that same created prejudice in the minds of the jury, by the judge below taking an active part in the prosecution of appellant. The court assisted the State and the witness, Garrett, in attempting to identify appellant. The act of the court could only be interpreted as an act by the court to call upon the accused as a witness to either admit or deny his identity as to whether or not he sold Rcetor Garrett a watch and chain in Alabama. We further urge and insist that the testimony as to this watch and chain as to appellant's identity by Garrett had no connection with the purported crime. Appellant stood up as requested and demanded by the court. The fact that the evidence was excluded by the court did not cure the error for the reason that the appellant did not testify in his own defense.

We rely for our authority in support of this assignment of error on the case of Brashier v. State, 197 Miss. 97, 20 So.2d 65, 157 ALR 311 and the case of Smith v. State (Ala.) 24 So.2d 546, with the authorities cited therein.

The court erred in admitting evidence against the appellant, over his objections, as to other crimes, i.e., larceny, forgery, embezzlement, adultery, unlawful cohabitation and other crimes, and the court should have excluded same. Likewise, the court erred in admitting the evidence pertaining to the sale of the automobile and the sale of other articles and erred in admitting the justice of peace seal, all of which should have been excluded. The court erred in admitting the articles introduced, over the objections of appellant, which were found in Adrain, Michigan. The court erred in admitting evidence of any matters that took place subsequent to the time the body of deceased was found. The court erred in admitting the admissions of the appellant, over his objections.

The testimony in this case as to the sale of the automobile in Nebraska and the purported forgery of the Bill of Sale, could only create inferences that the appellant was guilty of larceny, forgery and embezzlement. We objected to the testimony as to the sale of the automobile and the sale of other articles. Further, there is other evidence in the record that appellant was living with another woman that was not his wife, either living in adultery or unlawful cohabitation. All of the foregoing could only impress upon the jury that if appellant was guilty of either of the above crimes, that he was likewise guilty of murder. It has frequently been held that the court will permit the introduction of such testimony where there is some connection between such testimony and the crime charged. Such testimony has been admitted in other cases for the purpose of identifying the accused.

However, in this case before this honorable court, there was ample testimony to identify the appellant without the admissions or inferences of larceny, forgery, embezzlement, adultery, unlawful cohabitation and the stealing of the justice of peace seal and the sale of the automobile and other articles. Wade Hover, the son of the deceased man, identified appellant, as did Mr. George W. Hindman of Middlesboro, Kentucky, and many other witnesses. It was therefore not necessary to identify appellant by showing or inferring to the jury the crimes of larceny, forgery, embezzlement, adultery, unlawful cohabitation and the stealing of the justice of peace seal and the sale of the automobile and other articles.

Evidence of other criminal transactions may be introduced in prosecution of one offense to identify defendant when there is apparent relation or connection between acts proposing to be proved and the offense charged. Crafton v. State, 26 So.2d 347. There is no relation or connection between the above and foregoing matters and the crime of murder. Further, the evidence pertaining to same could not have been admissible to identify appellant for the reason that there as an overwhelming number of other witnesses that identified appellant.

Further, at no time had appellant been connected with the crime of murder. It was apparently the contention of the State that since appellant had some personal articles and the automobile of deceased and was guilty of larceny or embezzlement and forgery in the sale of said automobile that same was sufficient to convict appellant of murder. The proof in the record plainly shows that the purpose of all of the above evidence was not to identify appellant as being the person that committed the purported crime of murder, but for the purpose of showing appellant as being guilty of the above and foregoing several matters.

Even when evidence is introduced for the purpose of identifying an accused, such evidence of identity must be far the purpose of identifying the accused as being the person that committed the crime charged. In this case, however, the evidence was not evidence as to the identity of appellant as being the person that committed the crime of murder. 16 C.J. 600, Section 1165. Matters occurring after the offense, which are neither incriminatory or exculpatory, and which have no bearing on the guilt or innocence of the accused are irrelevant and inadmissible. Harper v. State, 83 Miss. 402, 35 So. 572, 16 C.J. 550, Section 1057. And it follows that matters that took place subsequent to the time the body of deceased was found should not have been admitted, over the objections of appellant. The testimony of the F.B.I. agent handwriting expert, Davis, was inadmissible and we objected to same. The forgery, if any, of the Bill of Sale, the use of the justice of peace seal and the proof of the various alias names purportedly used by appellant had no connection with the murder charge. Same had no bearing on the guilt or innocence of appellant. Harper v. State, supra. The trial of this appellant was not a trial involving disputed documents and the question of disputed documents was never in issue — appellant neither admitted or denied the documents as he did not testify in his own behalf or present any witnesses. This testimony of the handwriting expert could not have been competent for identification purposes or for comparison for the reason that same had no connection with the crime charged. See authorities under this point in this brief as to subsequent and unconnected matters; also Washington v. State, (Ala.) 39 So. 388. The proof does not sustain the admissibility of any of the foregoing testimony on the grounds of either motive or intent. Much of the objectionable and inadmissible testimony was admitted in evidence by the court because the State continuously advised the court that same would be connected, but none was ever connected nor was appellant ever connected with the crime of murder.

We further seriously urge that the articles found in Michigan and introduced over the objections of appellant should have been excluded for the reason that the admission of same in evidence violated the Fourth and Fifth Amendments to the Constitution of the United States, i.e., the rights of one to be secure in his person, papers and effects, against unreasonable search and seizure and not to be compelled in a criminal case to be a witness against himself — the same being fundamental rights under the Fourth and Fifth Amendments to the Constitution which affect the very essence of constitutional liberty and security. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 525-532, 29 L.Ed. 746; Weeks v. United States, 232 U.S. 383-391, 34 S.Ct. 341, 58 L.Ed. 652, LRA 1915B, 834, Ann. Cas. 1915C 1177. The admissions of such articles is likewise a violation of Article 3, Sections 23 and 26 of the Constitution of the State of Mississippi. (Section 23 prohibits unreasonable searches and seizures and Section 26 prohibits requiring a person to give evidence against himself).

The proof shows that all of the articles, personal items and luggage that was obtained from appellant and introduced in evidence was taken from the apartment of appellant by F.B.I. officers without a search warrant. The F.B.I. agent, Wallace R. Moseley. testified that after appellant was arrested in the business section of Adrian, Michigan, appellant wanted to go to his residence or apartment and obtain a suitcase and some clothing. F.B.I. agent, Moseley, went with appellant to his apartment and while this witness, Moseley, was in said apartment, the said Mr. Moseley went through all the baggage, took the shirts and various articles of clothing, examined them and the ones which he wished to bring to Mississippi, he placed in the bag, and all of which was returned to Mississippi and admitted in evidence, over our objections. Further, other articles, bags, luggage and justice of peace seal (R.L. Ward) which were taken from appellant's apartment were likewise introduced in evidence. It should be noted that this F.B.I. agent even went back to the apartment the second time on September 13th, which was 10 days after the first trip to said apartment. Again, on this second trip, witness, Moseley, did not have a search warrant and he made a further examination and obtained additional articles which were introduced in evidence. There is no proof to show whether these articles were owned by appellant or Arizona Peyton (the woman he was purportedly living with in said apartment) or owned by them jointly.

We submit that none of the items taken from appellant's apartment were admissible and same was a violation of appellant's constitutional rights, as aforesaid. See Little v. State, 171 Miss. 818, 159 So. 103. In the case of Agnello v. United States, 269 U.S. 20, 32, 46 S.Ct. 4, 6, 70 L.Ed. 145, 51 ALR 409, the court sustained a search of the place where the arrest was made as reasonably incident thereto, but held that the right to make a search did not extend to other places and that the search of Agnello's house several blocks distant from where he was arrested, could not be sustained as reasonable incident to Agnello's arrest. It has further been held in the case of United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877, 82 ALR 775, that a "clean sweep of all the papers and documents found on the premises where the arrest was made was not reasonably incident to the lawful arrest". See above cases and also Harris v. United States, 151 F.2d 837, 169 ALR 1413, and Davis v. United States, 66 S.Ct. 1256, which are supporting authorities for our contention. The arrest was made as aforesaid in the business section of Adrian, Michigan. Appellant's apartment was some distance away from where he was arrested, and under the above authorities, the F.B.I. officers certainly did not have the right to invade the premises of appellant to take evidence to be used against him in the trial of this case. Their action appears to be more or less an exploring trip to appellant's apartment and it is plain that the officers were "fishing" for evidence and acting in violation of appellant's constitutional rights.

George H. Ethridge, Assistant Attorney General, for appellee.

The venue may be proved by either direct or circumstantial evidence and the proof on the point, I submit, is established in such a manner as to satisfy the law. In Capps v. State, 189 Miss. 134, 196 So. 639, there was involved a case in which the establishment of venue was in question, the body having been found in a river and the venue was alleged to be in another county just above where the body was found. A fight between Capps and the deceased was proved but the body was afterwards found in another county with the throat cut, but the lungs had no water in them as would have been the case had the deceased drowned. There was also a place on the bank of the river in the county where the crime was alleged to have happened where some clothing of the of the deceased was found. The evidence was held in that case to sustain proof that the offense was committed in the county where the indictment was found. This case is a stronger case on establishing venue than the present case and warrants the jury verdict in the present case. See also Womack v. State, 161 So. 747 (not officially reported) which supports the finding of the jury in the present case.

In McCann v. State, 13 Sm. M. 471, the court dealt with circumstantial evidence which is an interesting and conclusive case. In the first syllabus it is stated: "Circumstantial evidence has been received in every age of the common law; and it may rise so high in the scale of belief as to generate full conviction; when, after due caution, this result is reached, the law authorizes its ministers to act upon it."

"Where a conviction depends upon circumstantial evidence, the legal test of its sufficiency for that end is its power to satisfy the understanding and conscience of the jury. It is sufficient if the circumstances produce moral certainty, to the exclusion of every reasonable doubt."

The case of Browning v. State, 33 Miss. 77, is therein cited, which is one of the most interesting cases on circumstantial evidence in our books. In the McCann case no one saw the appellant strike the fatal blow and the face of the body of the deceased, when found, had been eaten away by hogs, making it impossible to identify the body by its features. It is true the venue was not as much in review in that case as the evidence of the crime and the court discussed the full effect of circumstantial evidence in securing a conviction. In the said opinion in discussing the evidece the court said:

"They place his guilt beyond all reasonable doubt. They are entirely consistent with that conclusion, and with all our knowledge of the ordinary motives of human conduct, if we are to believe him innocent."

In this case the court also commented on the fact that the appellant did not dispute the accusatory facts or denials as to the evidence introduced and made inconsistent statements in his own statements.

See Woods v. State, 155 Miss. 298, 124 So. 353; Holloway v. State, 24 So.2d 857; 16 C.J.S. 768, Section 1573. See also Wilson v. U.S., 40 L.Ed. 1075.

See Burrill on Circumstantial Evidence, page 681, under the subtitle "Identification of the Body or Remains". He discussed various cases and mentioned the McCann case above cited. He lays down the rule as made in the McCann case as to the force of the combination of circumstances where any particular circumstance would not be sufficient and would be of little force, whereas the combination of a large number of circumstances, each pointing in some degree of guilt, would make strong proof sufficient to establish guilt beyond every reasonable hypothesis.

Therefore, when we take all the circumstances put together the venue is clearly established that the killing took place in the first district of Jones County. It is true the defendant cannot be required by law to explain to the court any part of the offense against himself, where he does not take the stand, but when the facts established are undisputed the jury is entitled to treat them as being true. The jury is also permitted to draw the inferences and conclusions from the facts even where more than one conclusion may be drawn.

Taking the proof of facts in this case it is clear, I think, that the venue was established. The fracture of the skull and a broken neck certainly indicates that the deceased did not inflict the wounds upon himself and it is quite probable that the body was carried to this lonesome road in the hours of the night for the purpose of committing murder and robbing the deceased and the court is certainly given full force and effect to all the facts disclosed, bearing in mind the rule that the confessions or statements by appellant to the officers and the F.B.I., when taken in connection with the circumstantial evidence of the corpus delicti, fully established the criminal agency in the death of the deceased in this case. This is especially true when the appellant was shown to be in possession of certain property belonging to the deceased including the car, afterwards sold by appellant..

The appellant's second point for reversal is that the State failed to prove the corpus delicti and if the same was proven the state failed to establish said corpus delicti by proof aliunde the admissions of the appellant.

What I have said in the above on the venue is applicable to this point. I think the proof of the corpus delicti is amply established by the circumstances and the evidence surrounding the murder. The familiar rule is that the corpus delicti must be established by evidence beyond the confession or independent of the confession. Where the evidence shows a confession or statements by the accused in the nature of an admission or confession the evidence may be considered together and if so considered to establish the guilt beyond a reasonable doubt. In Walker v. State, 127 Miss. 246, 80 So. 921, the court held that on the trial of a criminal case a confession by the accused may be considered together with the other evidence to establish the corpus delicti if such other evidence is of such character as will satisfy the mind that it is a real and not an imaginary crime which the accused has confessed. In Keeton v. State, 175 Miss. 631, 167 So. 68, it was held that where the defendant confesses the commission of the crime corpus delicti is required to be established only to a probability and proof is sufficient where confession and evidence of the corpus delicti taken together establish the corpus delicti beyond a reasonabel doubt. It was also held that where accused confesses, much slighter proof is required to establish a corpus delicti than would be necessary where the state must make out the entire case unaided by confession. In Brooks v. State, 178 Miss. 575, 173 So. 409, it was held that the jury is not always procluded from considering confession in determining whether corpus delicti was established.

While in the present case the appellant did not confess the murder itself he made statements which show that he was the probable person who committed the crime and all of the circumstances show that he was the guilty person. The evidence shows that on the night the murder took place he was at the home of Mr. Cooley and that he was in Laurel later the same night and tried to hire his kinsman to go with him and he had at that time an automobile belonging to the son of the deceased in which he and the deceased were riding during the day between Knoxville and Laurel. He also had possession of a watch and chain belonging to the deceased and sold it in Alabama to a negro. I do not think it necessary to elaborate on the evidence in this case which is not disputed and stands as a part of the proof showing that the appellant had killed the deceased for the purpose of robbery.

On the third point of appellant's brief he contends that the court erred in repairing the appellant, over his objection, to stand up for the purpose of being identified and giving evidence against himself in violation of his constitutional rights as contained in the United States and Mississippi Constitutions. This point is predicated upon the effort to prove that the negro who bought the watch from the appellant was being examined upon the said sale of said watch which he testified to and on the identity of the appellant. This negro would not say for sure that the appellant was the person who sold him the watch but that he favored him and pointed out the appellant in the court room. The court asked the appellant to stand so that the witness could see him. The appellant, of course, must be in the court room during the trial and the appellant was not called on to say whether or not he was the one who sold the watch to the negro. It was necessary to identify the watch as the one in possession of the appellant shortly after the homicide and it is constant practice in the circuit court where a witness must identify a person connected with the crime to prove the crime. The negro never did say positively that the appellant was the man who sold him the watch but did testify that he bought the watch in the home where the appellant was. Both the husband and wife who owned the home where the watch was sold to the negro testified to seeing and hearing the sale and to the identity of the appellant. It is a necessary practice in identifying criminals who were seen under circumstances which indicate guilt of the crime to have the prisoner brought forth for the witnesses to look at and see if they were the same person who was seen under circumstances which would establish or indicate their guilt. It is manifest that this constituted no error in the present case. The possession of the watch by the appellant before the sale tended to prove that the appellant had taken the watch from the deceased, indicating that he was the guilty person. The possession of stolen property may be considered in establishing a corpus delicti. Wood v. State, 155 Miss. 298, 124 So. 353.

Evidence of crimes wholly disconnected from the crime charged is not admissible but where there is a connection between the crime being charged and the separate crime offered in evidence and the second crime connects with the motive for the crime for which he is indicated, then it is admissible. In Collier v. State, 106 Miss. 613, 64 So. 373, the court discussed this question, holding in the third syllabus that a previous or subsequent offense committed by accused can be proven only where it is connected with that charged in the indictment and throws light upon accused's motive or where it forms a part of a chain of circumstances so connected that the whole must be shown in order to interpret its parts for the purpose of showing criminal knowledge or intent. Numbers of other cases discussing the question will be found in Mississippi Digest, "Criminal Law", Key No. 369, but I do not deem it necessary to quote further from these cases.

The fourth point argued by appellant is that the court erred in admitting evidence against the appellant over his objections as to other crimes. What I have just said in the preceding part of this brief answers this. Where the proof of another crime tends to show motive or intent or constitutes an essential link in the proof of the crime charged it is admissible notwithstanding it would also amount to another crime. The appellant was not being tried for any crime except murder. He made the statements to the officers voluntarily, tending to make out his guilt.

Montgomery, J.

J.W. Poore was convicted in the lower court on a charge of murdering one A.H. Hover and was sentenced to death. From this judgment he appeals.

A.H. Hover was an oil operator, and his business was to drill oil wells and buy and sell leases. He met Poore in a hotel at Middleboro, Kentucky, and Poore represented to him that he, or he and his family, had mineral lands in Mississippi that had not been leased and that the wanted Hover to come down and inspect them with a view to development. They, Hover and Poore, left Middleboro on July 6, 1947, traveling in a cream-colored 1947 Studebaker Commander coupe, that belonged to Hover's son, W.H. Hover. At one or two o'clock a.m., on July 7th, they arrived at the home of Mr. and Mrs. Bud Cooley in Wayne County, Mississippi. Bud Cooley died before the trial. Poore came into the house and asked Cooley to come out and meet a frined. He went out to the car and some conversation ensued in which Mrs. Cooley heard her husband say that there was no unleased land. Three days later, at 4:30 or 5:00 a.m. on July 10th, Poore came to the home of George L. Graham in Laurel, Jones County, Mississippi, carrying in his hand a German Luger pistol. Graham was dressing to go to work, and Poore offered Graham $50 to go with him, not saying where, and Graham refused. He then offered Graham $5 for a screw driver and pliers, but Graham told him he had none. He told Graham not to tell any one that he had been there and left by the back door, and Graham ran through the house and, looking through the front door, saw a cream-colored Studebaker car out front, but saw no one in it.

The badly decomposed body of Hover was found at about 6:00 p.m., on July 10th, about 100 feet from a little cutoff road about three miles northeast of Ovett, Mississippi, leading from Highway 15 to Waynesboro, and at a point about one-fourth miles from where the cutoff road left Highway 15. The body had been covered with pine tops and its discovery was led to by a large flock of buzzards.

On the next day, July 11th, J.W. Poore was seen at a sandwich shop in Laurel eating watermelon. The cream-colored Studebaker was parked across the street.

On July 26th, Poore, under the name of J.W. Powell, sold the dream-colored Studebaker to one Harry Hansen in Omaha, Nebraska, exhibiting to him a bill of sale for the car, executed to J.W. Powell by M.H. Morgan, of Monteagle, Tennessee, dated and sworn to on June 16th before R L.C. Ward, who is a Justice of the Peace at Enterprise, Clarke County, Mississippi. The undisputed evidence shows this bill of sale and the jurat at the justice of the peace thereon were forged by Poore. The transfer of the car from Poore, under the name of Powell, to Hansen was made on the back of this forged bill of sale.

In August, the exact date not being shown, Poore, in company with one Arizona Peyton, spent three nights in Sheffield, Alabama, at the home of Mrs. Willard Stansell, and, while there, was seen to sell a gold watch and chain to a Negro, Rector Garrett, which watch and chain was identified as belonging to and worn by Hover when he left Middleboro, Kentucky in company with Poore.

Poore was arrested at Adrian, Michigan, on September 4, 1947, near the intersection of Beecher and Treat streets and carried to police headquarters by the F.B.I. He requested Wallace R. Moseley, F.B.I. agent, to take him to his home at 739 Caton street to there procure some clothing. On arrival there Moseley saw three traveling bags and examined the contents of each. One of the bags in the posssesion of Poore and identified as the property of Hover, was disclaimed by Poore, who said it was owned by Arizona Peyton, with whom he was setting up housekeeping. The contents of this bag were examined by Moseley, and it was found to contain some ties, an altimeter, a compass, a shaving kit, an optical lens, and other articles belonging to A.H. Hover and identified as such. Poore took with him two of the three bags, leaving behind the bag belonging to Hover. Ten days later, Lucille Kelly, the daughter of Arizona Peyton, carried Moseley out to 739 Caton Street and delivered to him the Hover bag and its contents, and it was sent to the Mississippi officers by the F.B.I.

The foregoing gives the high lights of the picture presented by the testimony in the record. More detailed statements will be presented regarding the questions raised in the assignment of errors.

The assignment of errors first raises the question of venue. Counsel argues that venue was not proven in the First Judicial District of Jones County, Mississippi, as required by art. 3, Section 26, of the Constitution of the State of Mississippi and the Fourteenth Amendment of the Constituiton of the United States. This contention is not supported by the record. The witness, J. Preston Royals, testified that the place near the little gravel road where the body was found is located in Beat 4 and the "First Judicial District of Jones County". J.K. Kilpatrick testified it was in the "First District of Jones County, Mississippi", and S.W. Young testified it was in the "First District of Jones County, Mississippi". From this it is clearly proven that it is in the First Judicial District of Jones County, and that Jones County is in the State of Mississippi.

It is next argued that the State failed to prove venue by failing to prove where the mortal blow or blows were inflicted or that A.H. Hover died in the First Judicial District of Jones County, as required by Scetions 2419, 2427, 2428, 2429 and 2430 of the 1942 Code.

We consider Section 2419, Code of 1942, the controlling section here. It reads as follows: "The local jurisdiction of all offenses, unless otherwise provided by law, shall be in the county where committed. But, if on the trial the evidence make it doubtful in which of several counties, or judicial districts, or justice of the peace districts, in cases before justice of the peace, including that in which the indictment, or affidavit, alleges it, the offense was committed, such doubt shall not avail to procure the acquittal of the defendant."

As above stated, Poore and Hover were at the home of Mr. and Mrs. Bud Cooley in Wayne County, Mississippi, on the morning of July 7th, traveling in the cream-colored Hover Studebaker. This was eight miles from where the body was found. At 4:30 or 4:45 a.m. on July 10th, Hover was at the home of George L. Graham in Laurel, Jones County, Mississippi, with a German Luger in his hand, offering Graham $50 to go with him, $5 for a pair of pliers and a screw driver, and left by the back door, telling Graham to tell no one that he had been there. He came and left in the cream-colored Hover Studebaker. On July 10th, the same day, at 6:00 p.m., Hover's body was found, covered over with tops broken from small pine trees. There had been a tremendous blow on the head, sufficient to divide the skull into four large fragments, only one of which was still attached to the spine and many smaller fragments the size of a "four bit piece", lying nearby on the ground. The entire skull was broken into fragments extending onto the neck in the back and both sides and across the top. The third and fourth vertebrae of the neck part of the spine were separated. In a statement to Wallace R. Moseley, Poore said he had never driven the cream-colored Studebaker, did not buy it, but that Hover left him at the fork of the roads, and that was the last time he knew anything about him or the Studebaker car. He told Wayne Valentine, the Chief of Police at Laurel, that on the way to Mississippi from Kentucky, they had picked up a man by the name of Morgan at Birmingham, and that Morgan got out of the car at the crossroads near the Cooley home and waited while he and Hover drove to the Cooley home and then returned to the crossroads, where Hover picked up Morgan and went to get some whiskey, and he got out near the crossroads where he waited at a house, a short distance away, for some four hours, when Morgan returned without Hover, saying he had bought the car from Hover and had carried Hover to Laurel where he caught a bus. This same statement was testified to by the witnesses, Edward Steele and Jeff Montgomery.

It will be seen from the above synopsis of the testimony that Poore's statements bring Hover alive to the crossroads, where he says he last saw him, and where his body was later discovered. By his statement he brings Hover, alive, into the First Judicial District of Jones County, Mississippi to a point about one-quarter mile from where Hover's body was later found.

On Hover's body was found a Masonic ring and cuff link, identified as Hover's. Poore sold Hover's watch to Rector Garrett. When arrested in Adrian, Michigan, he had in his possession Hover's traveling bag, his shaving kit, an altimeter and a compass that belonged to Hover and which Hover used in inspecting oil lands, also an optical lens from Hover's glasses, a pencil with the initials "A.H.H." on it, a tiepin, and other articles all identified as Hover's. He sold the Studebaker car under a forged bill of sale to one Hansen; and the handwriting on the bill of sale, including the signature of the seller, Morgan, and the signature of the justice of the peace appearing thereon as having taken Morgan's affidavit, are shown by the undisputed evidence to have been forged and in the handwriting of J.W. Poore. Poore had in his possession a solid gold fountain pen that had been given Hover by his son as a Christimas present. He tried to get the witnesses, Miller Graham and wife, to swear falsely that he had spent at their house the four hours, when he was supposed to have been waiting near the crossroads for the return of Hover and Morgan.

The appellant, Poore, after the State rested its case, did not take the stand in his own defense nor did he offer any witnesses in his own behalf.

(Hn 1) Do these facts support the venue here? We are satisfied they do. The evidence that the skull was broken into fragments and that the third and fourth vertebrae of the neck were separated, establishes that this could not have been done by deceased. The jury was justified in finding that it was done by a criminal agency, and establishing that offense as murder, and that the venue of the crime was in the First Judicial District of Jones County, Mississippi. Capps v. State, 189 Miss. 134, 196 So. 639.

(Hn 2) Venue may be proven by either direct or circumstantial evidence. Circumstantial evidence has been received in every age of the common law and it may rise so high in the scale of belief as to generate full conviction; when, after due caution, this result is reached, the law authorizes its ministers to act upon it. Where a conviction depends upon the circumstantial evidence, the legal test of its sufficiency for that end is its power to satisfy the understanding and conscience of the jury. It is sufficient if the circumstances produce moral certainty, to the exclusion of every reasonable doubt. McCann v. State, 13 Smedes M. 471; Browning v. State, 33 Miss. 47; Womack v. State, Miss., 161 So. 747.

Poore's own statement places him last with Hover, alive, at the crossroads near which the body was later found, and which was the First Judicial District of Jones County, Mississippi. (Hn 3) The head was bashed into pieces and the neck broken in a manner the deceased could not have inflicted upon himself. Poore showed up with the personal effects and car of the deceased. Consequently, the only reasonable deduction is that Poore murdered Hover in the First Judicial District of Jones County, Mississippi, and there concealed his body under a covering of pine tops. We think the evidence shows that the murder was committed in the First Judicial District of Jones County, Mississippi, and we also think that the evidence is sufficient to show that the crime was murder. This finding also disposes of the appellant's argument that the corpus delicti was not established by the evidence, and this finding, as to corpus delicti, is based on sufficient evidence in this record aliunde the confession or statement made to the officers by Poore.

(Hn 4) It is next urged that the action of the trial judge in requiring the defendant to stand up in the courtroom for identification by the witness Rector Garrett was a violation of Poore's constitutional right to not be forced to give evidence against himself. At the time Poore was asked to stand up in the courtroom, it was for the purpose of affording opportunity to the witness, Rector Garrett, to get a full view of him for purposes of identification. The witnses Garrett did not definitely identify him as being the man who sold him Hover's watch, and thereupon Mr. Arlington Jones, of counsel for the defendant, made this objection: "We object and move that all his testimony be excluded for the reason he cannot identify any man as having sold him the watch and chain", and thereupon the court said: "Objection sustained. Before you can point a man out he must be positively identified as the person." Hence it will be seen that defendant's objection was sustained by the court. No motion to exclude the physical evidence of Poore's standing up for identification was made, and the court committed no error in not excluding it in the absence of a request so to do. Brown et al. v. State, 173 Miss. 542, 158 So. 339, 161 So. 465. We find no merit in this assignment of error. See Journal of Criminal Law and Criminology, Vol. 28, pp. 272 and 273, and cases there cited.

(Hn 5) It is next urged that the court erred in admitting in evidence the bag and the articles found therein which were found in Poore's posssesion when he was arrested in Adrian, Michigan. There is no merit in this contention. The undisputed evidence shows that Poore denied ownership and possession of the bag and stated that it belonged to Arizona Peyton, with whom he was setting up housekeeping. It is also undisputed that Poore invited the witness Moseley into the room at 739 Caton Street, Adrian, Michigan and no search was necessary, for the bag was in full view and open to the eye and hand. (Hn 6) The arrest was a lawful one, the examination of the bag was an incident to the arrest, and the incriminating articles were connected with the crime as its fruits. 47 Am. Jur. Sec. 19, p. 515; Davis v. State, 170 Miss. 78, 154 So. 304; Patton v. State, 201 Miss. 410, 29 So.2d 96; Bird v. State, 154 Miss. 493, 122 So. 539; Watson v. State, 166 Miss. 194, 146 So. 122.

Three is no merit in the objections made to the various instructions given to the State. As a whole, they correctly announce the principles of law applicable to this case. We find no need to lengthen this opinion by setting them out herein.

(Hn 7) There was no error in overruling appellant's motion to exclude the State's evidence and discharge him. When the State rested its case, it had, by the evidence, established Poore's guilt beyond a reasonable doubt. It is true the proof rests largely in circumstantial evidence, but this circumstantial evidence was not denied by Poore or any one else. Undenied, it became conclusive proof beyond a reasonable doubt. White v. City of Philadelphia, 197 Miss. 166, 19 So.2d 493, 744.

The judgment of the lower court will be affirmed, and Thursday, November 25, 1948, set for the date of execution.

Affirmed.

Montgomery, J.

RESPONSE TO SUGGESTION OF ERROR. ( 37 So.2d 357)

Smith, J.

In response to the Suggestion of Error, we have reexamined the record and have fully discussed it in conference. We are of the opinion that the Suggestion of Error should be overruled.

However, it has been called to our attention that, by an inadvertence as to the incident of Thanksgiving Day upon the date set for the execution, it was directed to be had on Thanksgiving Day. We now change the date of the execution to Friday, December 3, 1948.

Suggestion of error overruled, and date of execution reset.