Opinion
No. 32930.
November 15, 1937. Suggestion of Error Overruled November 29, 1937.
1. LARCENY.
Evidence that state's witness stole cow at request and for the benefit of accused held sufficient to sustain conviction of accused for petit larceny.
2. CRIMINAL LAW.
A charge that if two or more persons are engaged in the commission of a crime, then the acts of each in the commission of such crime are binding upon all, and all are equally responsible for the acts of each in the commission of such crime, where there was sufficient evidence for jury to believe that defendants were acting jointly in the commission of the crime, was not error.
APPEAL from the circuit court of Monroe county.
HON. THOS. H. JOHNSTON, Judge.
Vardaman Worthy and Noel Conwill were convicted of petit larceny, and they appeal. Affirmed.
M.C. Young, of Aberdeen, for appellants.
The first assignment of error is a challenge of the correctness of the first instruction given for the State. This instruction reads as follows, to-wit: "The court charges the jury for the State that it is the law that if two or more persons are engaged in the commission of a crime, then the acts of each in the commission of such crime are binding upon all, and all are equally responsible for the acts of each in the commission of such crime."
This instruction does not properly tell when a person is bound by the acts of another. It does not come within the law of a conspiracy. No combination, confederation, or concerted action is set out in this instruction. It does not connect or tie in the defendants as having guilty knowledge that the cow was stolen. The jury could infer that the appellants are guilty whether they knew the cow was stolen by the State's witnesses, and the State's witnesses are thieves and accomplices according to their own testimony.
All the testimony shows that the appellants made the deal in the open, there was no element of theft by their actions and dealings with the animal. But the three boys, all guilty by their own confession, tell such an unreasonable tale and are so contradictory, that we are compelled and forced to the conclusion that the jury decided the case against the law and the great weight of the evidence.
There should have been a verdict of not guilty. Of course the court should not have entered judgment and sentence based upon such evidence.
W.D. Conn, Jr., Assistant Attorney General, for the state.
The proposition of law which is contained in the instruction is almost elementary. The State submits that the instruction correctly states the law and that there was no error in the giving of that instruction.
Anderson v. State, 171 Miss. 41, 156 So. 645; Lusk v. State, 64 Miss. 845, 2 So. 256; Woodward v. State, 166 Miss. 596, 143 So. 859; Odom v. State, 161 So. 141.
Even the uncorroborated testimony of an accomplice if not altogether improbable or self contradictory on its face will sustain a conviction.
Boutwell v. State, 165 Miss. 16, 143 So. 479; Matthews v. State, 148 Miss. 696, 114 So. 816.
But where such testimony is corroborated, as in the case at bar, the conviction will be upheld, even though it later develops that the accomplice has misrepresented the facts.
Frazier v. State, 142 Miss. 456, 107 So. 674.
On the record before the court the State submits that the testimony of the accomplices in this case is not of that character as would require a reversal as was the case in Rutledge v. State, 157 So. 907, and that this conviction should be upheld.
Appellants, Vardaman Worthy and Noel Conwill, were indicted for the theft of a cow, the property of H.Y. Johnson, and valued in the indictment at $35; were tried and convicted of petit larceny in the circuit court of Monroe County, and sentenced to pay a fine of $100 and to serve 90 days in jail, from which judgment this appeal is prosecuted.
It appears that Punk Harlow, who testified as a witness for the state, with two others, went at night to the premises of Johnson, took this cow from Johnson's premises, and carried it through the field and around to the paved highway, and there met the appellants, who loaded the cow on a trailer attached to their automobile. Harlow's testimony is to the effect that he stole the cow at the request and for the benefit of the appellants. It also appears that on the following day the cow was butchered and sold to the A. P. Store for about $18.
The appellants' testimony is to the effect that they bought the cow from Punk Harlow; that he stated to them that he had a cow for sale and was to deliver it on the highway for a named price.
Punk Harlow further testified that after the parties were arrested, and before the preliminary trial was held, they induced him to leave, and he went to Arkansas; they furnishing him the money to do so. This was denied by the appellants. The testimony of Punk Harlow was, to some extent, corroborated in material elements, and was sufficient to warrant the jury in finding the appellants guilty.
It is assigned that the court erred in instructing the jury as follows: "The court charges the jury for the State that it is the law that if two or more persons are engaged in the commission of a crime, then the acts of each in the commission of such crime are binding upon all, and all are equally responsible for the acts of each in the commission of such crime."
This instruction is not an attempt to announce the law of guilt based upon conspiracy, but is intended to state the law as to joint acts in reference to a crime.
There was sufficient evidence to warrant the court to give this instruction, and for the jury to believe that the appellants were acting jointly in the commission of the crime of petit larceny.
We think the law was fairly announced on the trial so as to present its applicability to the facts, and the judgment of the court below will be affirmed.
Affirmed.