Opinion
No. 39009.
February 8, 1954.
1. Burglary — statutes — evidence — purpose for which goods kept.
In prosecution under indictment founded on statute making one guilty of burglary who breaks and enters, in day or night, any shop, store, warehouse or other building, in which any goods, merchandise, or valuable things shall be kept for use, sale, deposit or transportation with intent to steal therein, evidence was sufficient to show purpose for which stolen automobile was kept by Motor Company from which automobile was stolen. Sec. 2043, Code 1942.
2. Burglary — indictment — proof sufficient of crime as laid in.
In such case, where indictment charging burglary by stealing of automobile from Motor Company stated that automobile was kept for use, transportation, deposit, sale "and" delivery, use of conjunction "and" instead of disjunctive "or" provided in statute, did not impose upon State burden of proving all five purposes for which kept, but proof that it was kept for sale and delivery to a customer was sufficient. Sec. 2043, Code 1942.
3. Burglary — evidence — sustained conviction.
In such case, evidence sustained conviction of burglary as defined by statute. Sec. 2043, Code 1942.
4. Criminal law — conviction — uncorroborated testimony of accomplice.
An accused may be convicted on the uncorroborated testimony of an accomplice if such testimony is reasonable and the question of the truth or falsity of such testimony is for jury.
5. Criminal law — evidence — admission of machine gun proper.
In such prosecution, admission in evidence of a machine gun shown to have been used in the commission of the crime and found in automobile of defendant's accomplice wherein defendant was apprehended was not error.
Headnotes as approved by Gillespie, J.
APPEAL from the circuit court of Pike County; TOM P. BRADY, Judge.
Colin L. Stockdale, Jackson, for appellant.
I. Appellant was entitled to the requested peremptory instruction. Section 2043 of the Mississippi Code of 1942 under which appellant was indicted, tried and convicted provides that: "Every person who shall be convicted of breaking and entering * * * any shop * * * or other building * * * in which any goods, merchandise or valuable thing shall be kept for use, sale, deposit or transportation, with intent to steal therein * * * shall be guilty of burglary, etc." Our Court has held that the crime of burglary was not charged under said Section unless the indictment alleged that the goods, merchandise or valuable thing was kept for use, sale, deposit or transportation; that if the indictment failed to charge the purpose for which the goods, etc., were kept that it also failed to charge the crime of burglary under this Section; that the purpose for which the goods, etc., were kept in the building is one of the elements of burglary under that Section. Brown v. State, 209 Miss. 636, 48 So.2d 131; Cannon v. State, 133 Miss. 567, 98 So. 63.
II. Since the State failed to offer any evidence on the purpose for which the goods, etc., were kept and since this Court has held in the above cited cases that the purpose for which the goods, etc., are kept in the building is one of the elements of the offense created by the statute, etc., we submit that the lower court should have granted the peremptory instruction requested by appellant.
III. The burden is on the State to establish the guilt of accused, that is, to prove every fact and circumstance which is essential to the guilt of the accused, or, as frequently stated, to prove every essential element of the crime charged, and to prove each item as though the whole issue rested on it, except insofar as a statute establishes a different rule. Cannon v. State, supra; Page v. State, 160 Miss. 300, 133 So. 216; Stubbs v. State, 206 Miss. 483, 40 So.2d 256; Williams v. State, 207 Miss. 816, 43 So.2d 389; 16 C.J.S. 528, Par. 993.
IV. There was insufficient evidence to establish appellant's guilt beyond a reasonable doubt. Appellant was convicted mainly on the testimony of an alleged accomplice, namely, one Andrew Clyde Thrash.
A. We are familiar with the rule that the credibility of the witnesses is for the determination of the jury; there are, however, some witnesses whose testimony should not be allowed to convict anyone. Thrash, it seems to us, is one of those witnesses.
V. The Court erred in granting State's Instruction Number 2 which is in these words: "The Court instructs the jury for the State that you do not have to know that the defendant, Roy Strickland, is guilty before you can convict him, but, that in order for you to be warranted in returning a verdict of guilty in this case it is only necessary that you believe from all the evidence in this case beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis, that the defendant is guilty." The fault of that instruction is that it belittles the doctrine of reasonable doubt. This doctrine is a very necessary part of our system of justice. But when the State tells the jury that it does not have to know the defendant is guilty but that in order for it to be warranted in returning a verdict of guilty it is only necessary that it believe beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis, that he is guilty, then the State has destroyed this protection which law gives the defendant. We submit that it is not only necessary that a jury believe beyond a reasonable doubt that defendant is guilty but that it is absolutely necessary that it so believe. The use of the word "only" in the instruction completely negatives the State's burden of proving absolutely the defendant's guilt beyond a reasonable doubt.
VI. The Court erred in admitting, over appellant's objection, certain prejudicial evidence. A machine gun, which was not found at the scene of the crime, which was not owned by appellant, which was not shown to have been in appellant's possession on the night of the crime, and which was obtained by the witness Thrash — the thrice convicted burglar — and Bill Huddleston at a time when appellant was not present, which was not used by anyone during the burglary and which was confiscated by officers a week later a hundred or more miles from the scene of this crime, was introduced into the evidence. This machine gun was not even a circumstance tending to prove burglary was committed; it was owned by Thrash and Huddleston and did not in any wise connect appellant with this charge of burglary. Appellant was arrested with Thrash and Huddleston a week after the crime of burglary was committed and a hundred or more miles away from the scene of this crime and the machine gun was in the wrecked car. Thrash's testimony merely shows that he had the machine gun in Magnolia on the night of the burglary. It does not show that the machine gun was used in the commission of burglary. It had no bearing on the crime of burglary. It is difficult to imagine anything that could have been more prejudicial against appellant than the introduction of this machine gun into the evidence.
VII. We think the introduction of Huddleston's trousers was also very prejudicial. After all, those trousers had no place in this law suit. The record being full of evidence showing that Huddleston and appellant were arrested together a week after this crime, the jury naturally got the idea they ran together. Since Huddleston's trousers were found at the scene of the crime and since Huddleston and appellant were arrested together then, of course, appellant must have committed burglary. This evidence served no purpose other than to be prejudicial to appellant.
VIII. The motion to exclude the evidence on the part of the State and to discharge the defendant as well as the motion for a new trial filed on behalf of the defendant, should have been sustained and it follows that the verdict of the jury was against the overwhelming weight of the testimony and evidence in the cause.
Joe T. Patterson, Asst. Atty. Gen., Jackson, for appellee.
I. Cited and discussed the following authorities: Boutwell v. State, 165 Miss. 16, 144 So. 479; Larry v. State, 211 Miss. 563, 52 So.2d 292; Lifer v. State, 189 Miss. 754, 199 So. 107; Mathews v. State, 148 Miss. 696, 114 So. 816; Young v. State, 212 Miss. 460, 54 So.2d 671.
Appellant, Jack Watkins, William Huddleston, Fred Earl Milling and Andrew Clyde Thrash were indicted for burglary. A severance was granted appellant and he was tried, convicted, and sentenced to serve six years and six days in the penitentiary. Thrash entered a plea of guilty and was the state's principal witness.
Thrash testified he had known appellant five years; that on December 8, 1952, he was driving his Lincoln car and picked up appellant, Huddleston and Watkins near Ellisville in Jones County, and sometime later Milling joined them; that the five co-indictees then drove to Magnolia; that they were armed with a machine gun and two pistols; that they went to the Stewart Motor Company at Magnolia and while appellant and Thrash kept watch, the others forced a door of the Stewart Motor Company, broke open the safe and took the money. They also took a new Chevrolet car out a rear door, together with a number of tires and other items. Thrash further testified that after the burglary, which occurred in the early hours of December 9, they abandoned the stolen car a few miles east of town, left a suitcase which was not missed until later, lost a pistol, and hid some of the stolen tires under a bridge. Thrash also testified to other details of the crime.
Testimony of other witnesses showed that the stolen Chevrolet car was found a short distance east of Magnolia. To the rear of the car was a handbag bearing the name of a brother-in-law of Huddleston, and inside the bag was a shirt with the names of appellant and Jack Watkins on it. Two employees of Stewart Motor Company testified that appellant was seen in and about the Stewart Motor Company a few days before the burglary and again on the day before the burglary. E.E. Stewart, owner of Stewart Motor Company, testified as to the identity and ownership of the property alleged to have been stolen. The tires were found under the bridge.
Appellant and Watkins were arrested on December 16, 1952. He was riding at the time in the Thrash Lincoln car. The arrest was in Jones County, and the machine gun was then in the Lincoln car. Appellant's mother, father, sister-in-law, brother-in-law, and a family friend all testified that appellant was at his father's home near Ellisville, Mississippi, on the night of the crime, and whose testimony, if believed by the jury, would have established a complete alibi for the appellant.
Appellant assigns as error the refusal of a directed charge of not guilty for three reasons: (1) that the state failed to prove the purpose for which the Stewart Motor Company kept the allegedly stolen property; (2) that the indictment as drawn required the state to prove all of the purposes for which the goods were alleged to have been kept, and (3) that the proof of the alleged crime was not sufficiently proven. These contentions will be dealt with separately.
(Hn 1) The proof was ample to show that E.E. Stewart, owner of Stewart Motor Company, was engaged in the selling of new and used automobiles and ran a general automobile repair business. It was shown without dispute that the very car stolen was to be delivered the next day to Stewart's customer who had already made a deal for its sale. The purpose for which the property described in the indictment was kept was amply proven.
Appellant was indicted under Section 2043 of the Code of 1942, which is: "Every person who shall be convicted of breaking and entering, in the day or night, any shop, store, booth, tent, warehouse, or other building or private room or office therein, ship, steamboat, flatboat, or railroad car, in which any goods, merchandise, or valuable thing shall be kept for use, sale, deposit, or transportation, with intent to steal therein, or to commit any felony, or who shall be convicted of breaking and entering, in the day or night time, any building within the curtilage of a dwelling house, not joined to, immediately connected with, or forming a part thereof, shall be guilty of burglarly, and imprisoned in the penitentiary not more than seven years." (Emphasis ours.)
(Hn 2) The indictment read "kept for use, transportation, deposit, sale and delivery." It is contended that since the conjunctive "and" was used in joining the several purposes instead of the disjunctive "or" as provided in the statute, the state thereby assumed the burden of proving all five purposes. This contention is hypertechnical and is without merit.
(Hn 3) The proof was sufficient to prove appellant was guilty beyond a reasonable doubt. Appellant assails the testimony of accomplice Thrash because Thrash has an unsavory past. He was shown to have been sent to a reform school at the age of about ten and served three years. At about age sixteen, Thrash was convicted of burglary and sentenced to serve two years. A few years later, he joined the army and received an undesirable discharge. Shortly after leaving the army, Thrash was again convicted of burglary and had finished his sentence before becoming involved in the instant case. Thrash detailed the crime in many respects. His testimony was corro-the crime in many respects. His testimony was corroborated by other witnesses and physical facts. The lost and so was the handbag and the stolen automobile. The tires were found where he said they had been put. Two witnesses testified they saw appellant about the Stewart Motor Company on two occasions prior to the commission of the crime. His story is not unreasonable and the jury was fully warranted in believing him. There is no basis on which this Court would be justified in saying that the testimony of Thrash is unbelievable. (Hn 4) There is ample authority holding that an accused may be convicted on uncorroborated testimony of an accomplice if such testimony is reasonable. Larry v. State, 211 Miss. 563, 52 So.2d 292. The testimony of Thrash is reasonable and is corroborated. The jury was the sole judge of the truth or falsity of such testimony. Young v. State, 212 Miss. 460, 54 So.2d 671.
(Hn 5) Appellant also assigns as error the admission in evidence of a machine gun. It was shown that this machine gun was used in the commission of the crime and that it had been obtained from Millings, one of the co-indictees. Furthermore, the proof showed that the machine gun was in Thrash's automobile when appellant was apprehended, which automobile had also been used in the commission of the crime. The machine gun was properly admitted in evidence.
Appellant also assigns as error the granting of an instruction for the state and the refusal of two instructions requested by the appellant. We have carefully considered these and other assignments of error and find no merit therein.
Affirmed.
Roberds, P.J., and Kyle, Arrington and Ethridge, JJ., concur.