Summary
In Rose v. State, 222 Miss. 699, 76 So.2d 835 (1955), the trial court's refusal to grant the instruction was error but the facts were similar to the Wood case and the error was called harmless.
Summary of this case from Richardson v. StateOpinion
No. 39248.
January 10, 1955.
1. Criminal law — witnesses — reputation — for truth and veracity — jury issue.
In prosecution for armed robbery, whether reputation of prosecuting witness for truth and veracity was good or bad was issue for the jury.
2. Criminal law — evidence — illegal search — property not owned by accused.
Evidence as to finding pistols and rope in automobile in which defendant and co-indictees were riding was properly admitted where automobile had not been owned or rightfully possessed by defendant or any of his co-indictees, notwithstanding contention pistol and rope were found in course of illegal search, for defendant could not complain of illegal search unless he was either owner or in rightful possession of automobile searched.
3. Criminal law — evidence — mistrial — refusal — not error.
Trial Court's refusal to grant motion for mistrial after sustaining motion to exclude testimony concerning co-indictee witness' part in scheme by co-indictees to take over whiskey business was not error where it had been otherwise shown that all co-indictees had been interested in the whiskey business and where Court instructed jury to disregard excluded testimony.
4. Criminal law — instructions — refused — defendant's failure to testify.
Trial Court's refusal to grant requested instruction to effect that fact that defendant did not testify was not to be considered unfavorably to him by jury in trial of case was error, but not reversible error under facts and circumstances of case.
5. Criminal law — instructions — refused — evidence — reasonable probability of innocence.
Trial Court's refusal of instruction to effect that unless evidence for State was so strong, clear and convincing as to exclude every reasonable probability of defendant's innocence they could not convict him was not error where defendant was granted a number of instructions to effect that jury could not convict until and unless they believed from evidence and circumstances he was guilty beyond every reasonable doubt and to a moral certainty.
6. Criminal law — instructions — refused — defendant competent witness — in own behalf.
Trial Court's refusal to give instruction to effect defendant was competent witness in his own behalf and jury had no right to disregard his testimony simply because he was a defendant was not error where defendant did not testify.
7. Criminal law — instructions — refused — presumption of innocence.
Trial Court's refusal of requested instruction announcing presumption of innocence principle and that such presumption was witness for defendant throughout trial was not error.
Headnotes as approved by Roberds, P.J.
APPEAL from the circuit court of Monroe County; RAYMOND T. JARVIS, Judge.
Richard B. Booth, Aberdeen, for appellant.
I. The Court erred in admitting the evidence pertaining to the search of the automobile and search of defendant's home. Adams v. State, 202 Miss. 68, 30 So.2d 593; Elardo v. State, 164 Miss. 628, 145 So. 615; Ford v. City of Jackson, 153 Miss. 616, 121 So. 278; Gauze v. State, 203 Miss. 377, 34 So.2d 729; Moore v. State, 138 Miss. 116, 103 So. 483; State v. Patterson, 130 Miss. 680, 95 So. 96; Tucker v. State, 128 Miss. 211, 90 So. 845.
II. The Court erred in admitting into evidence the compact and purse which were obtained by a search of the defendant's premises in Columbus, Mississippi, for the reason that the information obtained as a basis for the issuance of the search warrant was unlawfully obtained from the defendant, Earnest Rose.
III. The Court erred in not granting the motions of the defendant for a mistrial.
IV. The Court erred in refusing certain of the instructions of the defendant. Berry v. State, 212 Miss. 164, 54 So.2d 222; Harris v. State, 209 Miss. 141, 46 So.2d 91; Kehoe v. State, 194 Miss. 339, 12 So.2d 149; Mars v. Herndon, 178 Miss. 157, 171 So. 880, 173 So. 286; Powers v. State, 156 Miss. 316, 126 So. 12; Scarbrough v. State, 204 Miss. 487, 37 So.2d 748; Turberville v. State (Miss.), 179 So. 340; Wood v. State, 221 Miss. 901, 74 So.2d 851; Secs. 1691, 1693, Code 1942.
Joe T. Patterson, Asst. Atty. Gen., Jackson, for appellee.
I. Appellant first contends that the Trial Court erred in admitting evidence pertaining to the search of the automobile and the search of defendant's home. Appellant's contention here is not well taken for several reasons: (1) the proof clearly shows that the officers arrested the driver of the vehicle for a misdemeanor being committed in their presence, and after having lawfully arrested the driver of the vehicle for a misdemeanor committed in their presence the officers had a right to proceed with a search of the vehicle, and evidence obtained thereby was admissible; (2) moreover, the proof clearly shows that the automobile did not belong to this appellant, and was not even in his care and custody at the time of the search and, therefore, appellant is in no position to complain of a search thereof, even an unlawful search thereof. Brooks v. State (Miss.), 52 So.2d 609.
II. Appellant contends that the Trial Court erred in admitting in evidence a compact and purse which were obtained by a search of appellant's premises in the City of Columbus, Mississippi. This evidence was entirely competent. The officer obtaining the search warrant had every reason to believe that stolen goods might be found in the home of the appellant and was, therefore, justified in making the affidavit for a search warrant. Having obtained the search warrant, the officers were authorized to make the search, and the property found clearly shows that the officer was justified in believing that stolen goods were in the home of this appellant.
III. The Trial Court committed no error in overruling appellant's motion for a mistrial.
IV. A refusal of a requested instruction adequately covered by instructions given is not reversible error. Thigpen v. State, 219 Miss. 517, 69 So.2d 241.
Earnest Rose, the appellant, and Mack Wood, Robert Smith Ballow and W.R. Scott were jointly indicted for the armed robbery of Donald Hendrix. A severance was granted, and Wood, Ballow and Rose were all convicted in separate trials at the October 1953 term of the Circuit Court of Monroe County, Mississippi. Wood and Ballow appealed to this Court and their convictions were affirmed October 18, 1954. Wood v. State, 221 Miss. 901, 74 So.2d 851; Ballow v. State, 221 Miss. 776, 74 So.2d 854. Rose, upon conviction, was sentenced to the state penitentiary for a term of twenty-five years, and this is his appeal to this Court.
It is not necessary for us to detail the testimony given in the trial of Rose for the reasons, first, that it is substantially the same, except as hereinafter noted, as that stated in the opinions in the Wood and Ballow cases, and, second, the questions raised on this appeal do not require a detailed statement of the testimony given on the trial of the case.
(Hn 1) However, the evidence in the case at bar differs in two respects from that adduced on the trials of Wood and Ballow. In this case one witness testified that he knew the general reputation of Donald Hendrix, the prosecuting witness, for truth and veracity and it was bad and he would not believe Hendrix on oath, and William O. Pegram, who was a resident citizen of Memphis, Tennessee, testified to extensive sales of whiskey by him to Wood and Scott in north Mississippi. This testimony in no way changes the result in this case. While as stated, one witness said he would not believe Hendrix on oath, three other witnesses said his reputation for truth and veracity was good and they would believe him. That simply made the veracity of Hendrix an issue for the jury. The testimony of Pegram showed he was a large liquor dealer in Memphis, and that, over a considerable period of time, he had sold much whiskey in north Mississippi to Wood and Scott, which testimony had little, if any, bearing upon whether or not Rose was guilty of armed robbery of Hendrix.
(Hn 2) On the night after the robbery officers stopped an automobile which was being driven by Ballow and in which Woods, Scott and Rose were also riding. In the car the officers found pistols and a rope which the evidence shows was used in the robbery. Proof was made of that on the trial of this appellant. Rose says it was error to make that proof because the officer had no warrant to search the car. The contention is not well taken. In addition to the fact that the automobile was exceeding the speed limit, in the presence of the officers, it is shown that Rose did not own, or claim to own, the automobile, nor did he claim to be in possession thereof, rightfully or otherwise. The car was being driven by Ballow, and Rose was on the back seat. It was licensed in the name of a Mrs. Stevens. To be in position to complain of an illegal search one must either be the owner or in the rightful possession of the property searched. Lee v. City of Oxford, 134 Miss. 647, 99 So. 509; Lucas v. City of Oxford, 134 Miss. 771, 99 So. 510; Ross v. State, 140 Miss. 367, 105 So. 846; Polk v. State, 167 Miss. 506, 142 So. 480; McLemore v. State, 178 Miss. 525, 172 So. 139; Brown v. State, 192 Miss. 314, 5 So.2d 426; Smith v. State, 198 Miss. 788, 24 So.2d 85; Harris v. State, 216 Miss. 895, 63 So.2d 396; Brooks v. State (Miss.), 52 So.2d 609. The Brooks case involved property taken from an automobile not owned, or in the rightful possession, of the accused.
(Hn 3) In the cross-examination of Mack Wood, co-indictee of appellant, the State by its questions, undertook to show that Pegram, Wood and Scott had endeavored to "take over" the whiskey business in north Mississippi. The learned trial judge permitted the questions to be asked at that stage to show the interest of the witness as one associated with and actively engaged in the whiskey business in which it was claimed appellant was also engaged. The trial judge anticipated the State would introduce proof contradicting the denial of Wood that he and the others were so engaged. However, that proof was not made. The court then sustained a motion of defendant to exclude the testimony on that question. Defendant made motion for mistrial, which the court overruled. That was at the close of the trial. We do not think refusal to grant a new trial was reversible error. A part of the property (if it may be so called) taken as a result of the robbery was whiskey; also it is shown that Wood, Ballow, Scott, and the witness Pegram were all interested in the whiskey business in North Mississippi. The testimony did have some bearing upon the interest of Wood. However, the court excluded the questions and answers and instructed the jury to disregard them. Refusal to grant a new trial was not error.
(Hn 4) Rose requested, but was refused, an instruction telling the jury that the fact that the defendant did not testify was "not to be considered unfavorable to him by the jury in the trial of the case." Appellant says the refusal to grant that instruction was reversible error. The same instruction was refused in the Wood case, supra. This Court said the instruction should have been granted but its refusal was not harmful so as to require a reversal of the case. Since practically the same factual situation existed in the Wood case as exists in the case at bar the refusal to grant the instruction in the case at bar is not reversible error.
(Hn 5) Rose requested, and was refused, an instruction telling the jurors they could not convict him "* * * unless the evidence for the State is so strong, clear and convincing as to exclude every reasonable probability of defendant's innocence." The court properly might have granted this instruction, although it is strongly worded and more applicable to circumstantial than direct testimony, but it was not error to refuse it in this case for the reason defendant was granted a number of instructions informing the jury they could not convict the defendant until and unless they believed from the evidence and circumstances he was guilty beyond every reasonable doubt and to a moral certainty, and especially in view of the fact he obtained an instruction to the effect that "if the jury can deduce from the facts and circumstances surrounding the case, either from evidence or lack of evidence, any reasonable theory 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.'"
(Hn 6) Defendant requested, but was refused, an instruction telling the jury the defendant was a competent witness in his own behalf, and the jury had no right to disregard his testimony simply because he was a defendant. Refusal of that instruction was not error for the reason the defendant did not testify.
(Hn 7) Defendant requested an instruction announcing the presumption of innocence principle and that such presumption was a witness for defendant throughout the trial, which instruction was, in substance, the same as that refused in Lott v. State, 204 Miss. at page 627. This Court, in that case, said the refusal to grant the instruction was not error. That is especially true in the case at bar, since defendant obtained instructions covering every phase of his defense.
We find no reversible error in this record and the verdict and judgment should be affirmed.
Affirmed.
Hall, Lee, Kyle and Holmes, JJ., concur.