Opinion
No. 35942.
November 12, 1945.
1. RECEIVING STOLEN GOODS.
Evidence was sufficient to sustain conviction of father for knowingly receiving stolen goods above the value of $25.
2. RECEIVING STOLEN GOODS.
Evidence was insufficient to sustain conviction of son for knowingly receiving stolen property above the value of $25, although the son assisted his father, who was guilty of such offense, in handling the stolen property.
APPEAL from the circuit court of Humphrey county, HON. S.F. DAVIS, Judge.
H.F. Jones, of Belzoni, for appellants.
Good character, alone, may create a reasonable doubt, which may be acted upon.
Lewis v. State, 93 Miss. 697, 47 So. 467.
The party actually committing the felony must be proven guilty before evidence of guilt of the accessory is admissible.
Osborne v. State, 99 Miss. 410, 55 So. 52.
There is no inference that John Reese received stolen property, with knowledge that it was stolen, and the only evidence bearing upon the question of knowledge on the part of John Reese is the testimony, of discredited character, given by Charlie McCollum, which proves, if anything, that John Reese was an accessory before the fact.
Sanford v. State, 155 Miss. 295, 124 So. 333.
An accessory before the fact is one who was not present, actually or constructively, at the time when a felony was committed, but who counseled, procured or commanded another to commit it.
Unger v. State, 42 Miss. 642; Harper v. State, 83 Miss. 402, 35 So. 572; 16 C.J. 134.
The two offenses, burglary and larceny and receiving stolen goods with knowledge, are not constituent offenses, but each occupies a status under separate sections of the law. A person chargeable with the burglary and larceny cannot be charged with receiving stolen property with knowledge. If one is guilty of the former he is not chargeable with the latter.
Sartorious v. State, 24 Miss. 602; Frank v. State, 67 Miss. 125, 6 So. 842; Manning v. State, 129 Miss. 179, 91 So. 902.
No case was made by any of the testimony in the case against Son Reese, and the court erred in overruling the motion to set aside the verdict of the jury as to Son Reese and to grant him a new trial. The verdict of the jury was clearly erroneous and the verdict against Son Reese should very certainly have been set aside and he should have been discharged in the light of all of the evidence produced in this case.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
Evidence of the good character of the accused should go to the jury as any other fact, and its influence in the determination of a case should be left to the jury, without any intimation of the court of its value. The court should not tell the jury that satisfactory evidence of the good character of the accused is or is not sufficient to raise a reasonable doubt of his guilt. The jury is to have the evidence as an aid to estimate the other evidence and by the light of the whole to reach a verdict.
Anderson v. State, 97 Miss. 658, 53 So. 393; Coleman v. State, 59 Miss. 484; Hammond v. State, 74 Miss. 214, 21 So. 149; Powers v. State, 74 Miss. 777, 21 So. 657; Calloway v. State, 155 Miss. 706, 125 So. 109; Shelton v. State, 156 Miss. 612, 126 So. 390; Dewberry v. State, 168 Miss. 366, 151 So. 479; Code of 1942, Sec. 1530.
While the testimony of an accomplice is to be weighed with great care, it is for the jury to determine what credit is to be given it from all the circumstances and to decide whether an accomplice is to be exonerated or not.
Osborne v. State, 99 Miss. 410, 55 So. 52.
In the present case, McCollum was indicted for a different offense from that the appellant was indicted and tried for. Whether the appellant conspired with McCollum to steal the seeds or not is not involved in this case. The proof shown by McCollum for the state is that the appellant, John Reese, asked McCollum to get him some seed but it does not show that any agreement was made as to where McCollum would get the seed or that he would commit a burglary to get them. McCollum does state that Reese knew that he was going to steal them but it did not show that he knew from whom he would steal them or when or where and the appellant was not indicted as an accomplice in the burglary, which voids the doctrine invoked here.
The unexplained possession of stolen property shortly after the commission of a larceny is a circumstance from which guilt of the larceny may be inferred, but no inference can be drawn therefrom alone that the one in possession of the property received it from another knowing that it had been stolen. If the circumstances show, as they do here, that the defendant received the property under circumstances which would convince a reasonable mind that the property was stolen, and where the defendant's connection with the property, as here, is shown, his denial of the possession and the secretion of the property is sufficient to establish that the defendant either knew or had good reaon to know that the property was stolen.
Sanford v. State, 155 Miss. 295, 124 So. 363; Sartorious v. State, 24 Miss. 602; Manning v. State, 129 Miss. 179, 91 So. 902; Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890.
The argument of the appellant as to the law and proof of accessory is not in any wise applicable here and the proof, in my opinion, does not sustain the argument that the appellant was guilty as accessory before the fact for the crime for which McCollum was indicted. There is ample proof to sustain the charge made against the appellant. It is true that if appellant was indicted for receiving stolen property and the only proof of his connection with the stolen property was his possession shortly after it was stolen, the presumption flows from such possession that he was guilty of larceny and not of receiving stolen goods. But the case here does not rest upon such proof and it is overwhelmingly proven, when considered in the light of reason, that appellant did receive the property knowing or having sufficient reason to believe that the property was stolen when he received it.
Argued orally by H.F. Jones, for appellant, and by Geo. H. Ethridge, for appellee.
The appellants were convicted of knowingly receiving stolen property above the value of $25. The party who stole the property, cotton seed, testified for the state, and, if believed, as he must have been in view of the verdict, his evidence was sufficient, together with other circumstances, to uphold the finding that John Reese knew the seed had been stolen when he purchased them from the thief.
Argument is made that the testimony of the thief shows that John Reese, if a participant in the transaction, was an accessory before the fact and is not therefore subject to the prosecution for receiving stolen goods. See Manning v. State, 129 Miss. 179, 91 So. 902. We do not decide whether an accessory before the fact is guilty as a principal in the sense that he, like the principal, may not be prosecuted for receiving, but state merely that the testimony was wholly insufficient to establish this appellant's guilt of the principal offense. The instruction of the state defining the offense follows an approved pattern and need not be here reproduced. The other assignments are not pressed in the briefs. We find no reversible error in the conviction of John Reese, and as to him the judgment is affirmed.
The testimony by which conviction was sought against Son Reese, the son of John Reese, is as follows: When the thief brought the stolen goods to the home of John Reese, during the night, Son Reese, at his father's request, helped in unloading the seed. Later, after the theft was discovered and an investigation begun, the son assisted his father in carrying the seed to some nearby woods. John Reese testified that he was physically unable to transport the seed and sought the son's help. That is the extent of the son's participation. The testimony concerned chiefly the receiving by the father, and there is no evidence that the son ever participated in any plans or negotiations for their purchase or receipt. He did not testify. The record does not disclose his age. We are of the opinion that the evidence is insufficient to sustain his conviction. The issue of the son's guilt was submitted to the jury along with that of his father, and there is no error of the trial court upon which we could act otherwise than to remand the case as to him as not being supported by the evidence, which point was duly, but solely, preserved in his motion for a new trial. Compare Ard v. State (Fla.), 22 So.2d 819.
Affirmed as to John Reese, and reversed and remanded as to Son Reese.