Opinion
No. 35480.
March 13, 1944.
CRIMINAL LAW.
Where owner of automobile permitted a killer to take automobile, to be driven by brother of killer, after the murder had been committed with which owner had no connection, courts of another county through which automobile was driven were without jurisdiction of prosecution of owner of automobile as an accessory after the fact to the killing (Code 1942, sec. 1996; Const. 1890, sec. 26).
APPEAL from the circuit court of Sharkey county, HON. R.B. ANDERSON, Judge.
Harry K. Murray, of Vicksburg, for appellant.
The trial court erred in permitting the state, over the objection of defendant, to amend the indictment by adding "through Sharkey County, State of Mississippi." The prosecution of defendant in the court below was under Section 770, Code of 1930. When the evidence showed that the offense charged against the defendant occurred in Issaquena County, Mississippi, the state moved the court to allow it to amend so that the prosecution could proceed under Section 1186 of the Code of 1930 — where offenses are committed partly in one and partly in another county.
The trial court erred in overruling the motion of defendant at the close of the state's case to dismiss the case because the evidence showed that the offense, if any, was committed in Issaquena County and not Sharkey County, Mississippi, depriving defendant of his constitutional and statutory rights to have a trial in the county where the offense, if any, was committed.
Section 26 of the Constitution of the State of Mississippi gives to the defendant the absolute right to trial in the county where the offense was committed, this being written into the statutes as Section 1176. There are many offenses, such as larceny and embezzlement, which are punishable in different venues, but the charge against the defendant is not one of that sort.
It is true that an accessory before the fact may be tried in the county of the commission of the offense.
Atkinson v. State, 132 Miss. 377, 96 So. 310.
There is a vastly different question as to accessories after the fact, where no "acts, effects, means or agency" of the defendant occur or are present in the county of the commission of the offense.
Murray v. State, 98 Miss. 594, 54 So. 72.
Manifestly none of the material elements of which this crime is composed occurred in Sharkey County. The defendant was entitled to a trial in the county where all of the facts of the alleged crime and its material elements happened. Greek L. Rice, Attorney-General, by R.O. Arrington, Assistant Attorney-General, for appellee.
The amendment to the indictment was proper and the court committed no error in permitting the amendment.
Evans v. State, 144 Miss. 1, 108 So. 725; Code of 1930, Sec. 1208.
When an offense is committed partly in one county and partly in another, or where the acts, effects, means, or agency occur in whole or in part in different counties, the jurisdiction shall be in either county in which said offense was commenced, prosecuted, or consummated, where prosecution shall be first begun.
Atkinson v. State, 132 Miss. 377, 96 So. 310; Bradford v. State, 171 Miss. 8, 156 So. 655; Caldwell v. State, 176 Miss. 80, 167 So. 779; Watson v. State, 166 Miss. 194, 146 So. 122; Code of 1930, Sec. 1186.
All of the elements of the offense charged were proven by the state.
See Crosby v. State, 179 Miss. 149, 175 So. 180.
Under the evidence in this case, the question of guilt or innocence of the appellant was a question for the jury, as they alone are the judges of the credibility of the witnesses. In this case, the testimony of Sias was fully corrobated by all the physical facts and his testimony alone was sufficient to support the verdict of the jury.
Gates v. State, 160 Miss. 479, 135 So. 189.
The night marshal of the town of Rolling Fork in Sharkey County was killed in that town about ten o'clock on a Saturday night by a negro named Harry Sias. Some time after midnight, according to the state's evidence, the killer accompanied by his brother appeared at the home of appellant, situated about five miles west of Rolling Fork and over the county line in Issaquena County. The killer besought appellant to take him to his home which was about twenty miles farther into Issaquena County. Appellant declined to do so but consented that the killer might take appellant's automobile then at appellant's home, and that the car might be driven by the brother. The killer and his brother drove away in the car, the brother driving. In order to reach their home it was necessary to follow a road which lead for a few miles within Sharkey County and thence westwardly into Issaquena County, and this was the route taken. Appellant had had no part whatever in the killing but had heard that it had happened.
As stated, appellant did not go with the killer or the car, and he committed no act in Sharkey County. The driver was in no sense the agent of appellant, or in any way in the slightest under his control. All that appellant did was to deliver to the killer and his brother appellant's automobile, and this was done and completed in Issaquena County. Appellant's only connection with the automobile after the killer and his brother took charge of it and got in it and began to drive away — all of which happened in Issaquena County — was that appellant was the owner of the car. When the occupants started the engine and drove away appellant's connection with the automobile, other than as owner, ceased and this was before the automobile reached the Sharkey County line. If therefore appellant committed any crime it was wholly in Issaquena County, and no part of it in Sharkey County; wherefore, under the present record and under Sec. 26, Const. 1890, the courts of Sharkey County were without any jurisdiction of the prosecution of appellant as an accessory after the fact under Sec. 770, Code 1930, 2 Code 1942, Sec. 1996, and of which he was convicted.
No case directly in point has been cited by either side, nor have we found any after a diligent search. We must, therefore, rely upon applicable principles. Had the killer and his brother negligently collided with and injured some person while passing along the highway in Sharkey County, appellant would not have been civilly liable. The fact that they were using his car would not be sufficient to make appellant a tort feasor in the premises; they were on no mission for him. A fortiori he was guilty of no criminal offense in Sharkey County merely because of his ownership of the vehicle, and which he did not attend either in person or by agent. Compare Woods v. State, 190 Miss. 28, 198 So. 882.
Reversed and remanded.