Opinion
No. 36419.
June 9, 1947.
1. BURGLARY.
Guilt of burglary was for jury under evidence consisting largely of testimony of accomplice.
2. CRIMINAL LAW.
Alleged error in admitting officers' testimony as to what they found at defendant's home and as to his attempt to flee when they sought to arrest him, on ground that failure to produce affidavit or search warrant was not properly accounted for, was not available on appeal when such testimony was not seasonably objected to.
3. CRIMINAL LAW.
Admission by defendant in burglary prosecution that he had been previously convicted of willful trespass should have ended inquiry into such conviction, and further inquiry to show that such conviction had been based on withdrawn plea of guilty of burglary, not connected with instant charge, was prejudicial error (Code 1942, sec. 1693).
APPEAL from the circuit court of Lauderdale county. HON. JESSE H. GRAHAM, J.
Tally D. Riddell, of Quitman, and E.T. Strange, of Meridian, for appellant.
The court committed error in overruling appellant's motion for a directed verdict at the close of the evidence.
White v. State, 146 Miss. 815, 112 So. 27; Byrd v. State, 154 Miss. 742, 123 So. 867; Williams Yellow Pine Co. v. Henley, 155 Miss. 893, 125 So. 552; Turner v. State, 168 Miss. 452, 151 So. 721; Rutledge v. State, 171 Miss. 311, 157 So. 907; Creed v. State, 179 Miss. 700, 176 So. 596; Southern R. Co. v. Buse, 187 Miss. 752, 193 So. 918; Truckers Exchange Bank et al. v. Conroy, 190 Miss. 242, 199 So. 301; Jakup v. Lewis Grocer Co. et al., 190 Miss. 444, 200 So. 597; Upton v. State, 192 Miss. 339, 6 So.2d 129; Lyle v. State, 193 Miss. 102, 8 So.2d 459; Ladner v. State (Miss.), 9 So.2d 878; Perdue v. State, 199 Miss. 624, 25 So.2d 185.
The verdict is contrary to the law and the evidence.
Abele v. State, 138 Miss. 772, 103 So. 370; Harmon v. State, 167 Miss. 527, 142 So. 473; Day v. State (Miss.), 7 So. 326; Hardy v. Masonic Benefit Ass'n, 103 Miss. 108, 60 So. 48; DeAngelo v. State, 187 Miss. 84, 192 So. 444.
The court erred in overruling appellant's motion to exclude evidence of officers as to articles or property found on appellant's premises and as to other facts or circumstances occuring on said premises during the search thereof, the production of a legal search warrant being demanded and not being produced in open court or its loss or destruction accounted for by the State.
Tucker v. State, 128 Miss. 211, 90 So. 845; Williams v. State, 129 Miss. 469, 92 So. 584; State v. Patterson, 130 Miss. 680, 95 So. 96; Owens v. State, 133 Miss. 753, 98 So. 233; Cuevas v. City of Gulfport, 134 Miss. 644, 99 So. 503; Wells v. State, 135 Miss. 764, 100 So. 674; Nelson v. State, 137 Miss. 170, 102 So. 166; Iupe v. State, 140 Miss. 279, 105 So. 520; Cofer v. State, 152 Miss. 761, 118 So. 613; Elardo v. State, 164 Miss. 628, 145 So. 615; Boyd v. State, 164 Miss. 610, 145 So. 618; Lancaster v. State, 188 Miss. 374, 195 So. 320; Constitution of 1890, Secs. 23, 26.
The court erred in allowing evidence of a plea of guilty by appellant to a former charge of burglary when said plea had been withdrawn, a plea of guilty to a charge of wilful treaspass substituted in lieu thereof and conviction and sentence had on the latter charge.
Jenkins v. State, 98 Miss. 717, 54 So. 158, distinguished; Kearney v. State, 68 Miss. 233, 8 So. 292; McLin v. State, 150 Miss. 159, 116 So. 533; Floyd v. State, 166 Miss. 15, 148 So. 226; Starling et al. v. State, 89 Miss. 328, 42 So. 798; Code of 1942, Sec. 1692; 16 C.J. 400, Sec. 733, p. 630, Sec. 1254; 70 C.J. 856, Sec. 1059; 9 Words Phrases 597-600, 605, 610-611, 1947 Pockett Parts 123; 1 Bouvier's Law Dictionary (Rawles 3rd Revision), p. 672; Underhill's Criminal Evidence (4 Ed.), p. 210, Sec. 140, pp. 291, 293, Sec. 167, p. 540, Sec. 277, p. 890, Sec. 434, p. 896, Sec. 435.
The court erred in admitting in evidence details of a previous conviction.
Smith v. State, 102 Miss. 330, 59 So. 96; Saucier v. State, 102 Miss. 647, 59 So. 858, Ann. Cas. 1915A, 1044; Walker v. State, 151 Miss. 862, 119 So. 796; Powers v. State, 156 Miss. 316, 126 So. 12; Bufkin et al. v. Grisham, 157 Miss. 746, 128 So. 563; Lawson v. State, 161 Miss. 719, 138 So. 361; Cooksey v. State, 175 Miss. 82, 166 So. 388; Mars v. Hendon, 178 Miss. 157, 171 So. 880; Dodds v. State (Miss.), 45 So. 863; Turberville v. State (Miss.), 179 So. 340; Swanner v. State, 191 Miss. 47, 2 So.2d 142; 70 C.J. 854, Sec. 1054; Underhill's Criminal Evidence (4 Ed.), p. 209, Sec. 140, p. 892, Sec. 435.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
I do not challenge the authorities cited by the appellant as being the proper announcement of law, as applied to the facts of each particular case, but I do deny that they are applicable to the facts of the present case. I think the evidence and the law justify the verdict. There is nothing involved in this case except a conflict in the evidence which is solely for the determination of the jury, there being no reversible error in admitting or excluding evidence and no reversible error in the instructions.
The decision of the accused's guilt of burglary based on the evidence is for the jury.
Duke v. State, 175 Miss. 743, 166 So. 619.
Whether the testimony of an impeached accomplice should be disregarded is for the jury to decide.
Nichols v. State, 174 Miss. 271, 164 So. 20.
The credability of an accomplice's evidence if reasonable and not held contradictory on its face is for the jury.
Matthews v. State, 148 Miss. 696, 114 So. 816.
All questions of fact in evidence and the credability of the witnesses and the value or worth of the evidence are questions for the jury.
Mississippi Digest, "Criminal Law," Key Nos. 741, 742, 747.
The jury has the duty to consider evidence as a whole and draw proper inferences therefrom.
Carter v. State, 140 Miss. 265, 105 So. 514.
With reference to the plea of guilty in a former case noted on the trial judge's docket, I submit that the plea of guilty is equivalent of a confession of guilt and is admissable in evidence as such, although no judgment was rendered thereon and a substitute offense was made and a plea of guilty thereto entered at the time. It was not introduced as a conviction, but as a confession or admission of guilt and as a similar crime and was competent as evidence to show motive and to rebut the evidence of good character and good standing in the community.
Jenkins v. State, 98 Miss. 717, 54 So. 158.
Argued orally by Tally D. Riddell, for appellant, and by Geo. H. Ethridge, for appellee.
The appeal here is from a conviction for the crime of burglary. The owner of the grocery store which was burglarized during the night of March 16, 1946, testified as to the fact of the burglary, and as to what was stolen from the store. He knew nothing as to who committed the crime.
Among the articles of merchandise taken there were about twenty sacks of flour, seventy cartons of cigarettes, and about one hundred and twenty pounds of sugar, which was put up in five pound bags; and also some cigars, cheese, matches, gloves and other articles.
The prosecution relied for conviction upon the uncorroborated testimony of an alleged accomplice, Joe Harris, as to the actual participation of the appellant in the crime, and upon the further circumstance of his having left his home to evade the officers when they went there to arrest him. The testimony was in sharp conflict as to both of these issues.
The testimony of Joe Harris as to the effect that he furnished the automobile for the journey to the store, that the stolen goods were divided about equally between the three participants in the crime when they arrived near the home of the appellant, that the latter received fifteen cartons of cigarettes, two sacks of flour, and eight five-pound bags of sugar, along with other articles, as his one-third of the loot. The other alleged accomplice, Marion Gabriel, was available, but was not placed on the stand as a witness. After the trial the witness, Harris, was permitted to withdraw his previous plea of guilty to this burglary charge, and enter a plea of guilty of a misdemeanor — wilful trespass.
On the following Monday, after the commission of the crime on Thursday night, the officers searched the home of the appellant, but found none of the merchandise which could be identified as having been stolen from the store. They testified that they found five bags of sugar in his home of the same brand and weight; but the evidence on behalf of the defendant disclosed that he had purchased four of them from another neighborhood grocery store a few days prior thereto, and none of the other stolen merchandise was found there after diligent search on two occasions.
The appellant seeks a reversal of his conviction on three grounds; first, that he was entitled to a directed verdict in his favor; second, that the testimony of the officers as to what they found at his home, and to his alleged attempt to flee from the scene when they sought to arrest him, was incompetent and inadmissible, for the reason that neither an affidavit nor a search warrant for the premises was produced at the trial, and the failure to produce the same was not properly accounted for; and, third, because the State as permitted to make proof as to a withdrawn plea of guilty to a burglary charge on a former occasion, where the defendant had been sentenced on a substituted plea of guilty for the less offence of a wilful treaspass.
We are of the opinion that the first contention is not well taken, for the reason that under all of the evidence the proof was sufficient to present a question of fact for the jury; and that as to the second contention the objection to the introduction of the testimony in regard to the search was not seasonably made.
We are of the opinion, however, that the third ground is well taken; that it was prejudicial error to let the prosecuting attorney inquire into what amounted to no more than an extra-judicial confession of the commission of a separate and distinct crime, for which a plea of guilty had been withdrawn, and no sentence had been imposed thereon.
Section 1693, Code 1942, authorizes the examination of any witness as to his conviction of any crime, but not in regard to any withdrawn plea of guilty of a separate and distinct offence. In the case of Dodds v. State (Miss.), 45 So. 863, 864, the Court held that, "But for the statute, no questions along this line could have been asked at all, and the statute must be strictly construed in favor of a defendant, and it only permits a witness to be examined as to his `conviction of any crime,' and allows his answers to be contradicted, `and his conviction of a crime established by other evidence.' This all goes to the credibility of the witness; . . ." In the instant case the accused had not placed his character in issue, so as to render competent such a confession of another offence.
The defendant was asked, on direct examination, "Have you ever been convicted of any offence?" Answer, "Yes, sir." "Q. What was it? A. Wilful trespass." This should have ended the inquiry, unless the prosecution desired to inquire as to his conviction of other offences, based upon a plea of guilty, or a conviction disclosed by the judgment of some court. The inquiry by the prosecuting attorney as to the circumstances under which the plea of guilty to a wilful trespass had been enter, and for the purpose of showing that there had been a withdrawn plea of guilty of a greater offence, wholly disconnected with the charge on which the defendant was being tried, could have served no purpose other than to prejudice the rights of the defendant, and bring about his conviction where his guilt or innocence might otherwise have been left in reasonable doubt, in the opinion of an unbiased jury.
The State relies upon the case of Jenkins v. State, 98 Miss. 717, 54 So. 158, for the admissibility of this evidence, in which case the accused after pleading guilty before a justice of the peace, appealed his case to the Circuit Court, and the prosecution was permitted to prove the plea of guilty as a confession of the particular crime for which he was being tried on the appeal, but held that the plea of guilty in such case amounted to no more than an extra-judicial confession of the crime for which he was then on trial in the Circuit Court. But it has not been held that what amounts to no more than extra-judicial confessions of separate and distinct offences is admissible in evidence where the defendant has not put his character in issure. In other words, the prosecution is only permitted to inquire as to previous convictions as effecting the credibility of the witness.
Reversed and remanded.