PATTERSON v. STATE

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Docket Number

No. 34071.

Attorney(S)

Paul G. Swartzfager and Raymond C. Swartzfager, both of Laurel, for appellant. The trial court erred in refusing to grant a peremptory instruction to the defendant at the conclusion of the state's evidence. Knight v. State, 20 So. 860, 74 Miss. 140; Loggins v. State, 136 So. 922, 161 Miss. 272; Garland v. State, 94 So. 210, 130 Miss. 310; City of Hazlehurst v. Byrd, 57 So. 360, 101 Miss. 57; Jobe v. State, 61 So. 826, 104 Miss. 860; Williams v. State, 98 So. 338. The trial court erred in granting this instruction for the state: "The court charges the jury for the state that the unexplained possession of recently stolen property is an element by which the jury may infer guilt." Patterson v. State, 110 So. 208, 144 Miss. 410; Smith v. State, 137 So. 96, 161 Miss. 430. The trial court erred in refusing the following instruction requested in behalf of the defendant: "The court instructs the jury for the defendant that of the two reasonable hypotheses supported by the evidence in this case, it is the jury's duty to adopt the hypothesis of innocence, though that of guilt is the more probable." Williams v. State, 142 So. 471, 163 Miss. 475; Irving v. State, 56 So. 377, 100 Miss. 208; Hogan v. State, 90 So. 99, 127 Miss. 407. The verdict of the jury was against the overwhelming weight of the evidence. Bowen v. State, 144 So. 230, 164 Miss. 225. In the case at bar, the jury arbitrarily disregarded the defendant's explanation of the means by which he came into possession of the oil. The only evidence for the state was that the defendant had oil similar to that stolen in his possession and this possession was explained by him on two occasions. Patterson v. State, 110 So. 208, 144 Miss. 410; Ross v. State, 42 So. 801. The only evidence that the state offered was that some oil similar to that stolen was found in the possession of the defendant. There was not one shred of proof that he broke and entered the warehouse. The oil found in the possession of the defendant was never directly compared to the remainder of the oil at the bulk plant. There was even a sharp conflict of opinion as to whether the oil found in the possession of the defendant was motor oil or transmission grease, as was the substance allegedly stolen, as testified to by Mrs. Holloway, the owner of the warehouse. Jackson v. State, 79 So. 809, 118 Miss. 602. The fact that the appellant had in his possession several gallons of oil similar to that stolen is what the state based their case on. This oil could have been obtained in a hundred different ways without stealing it. We submit that this thin shred of circumstantial evidence is wholly insufficient upon which to base a conviction. We submit that the record shows that the verdict in this case is not a true and just verdict. We submit that the judgment of the court below should be reversed and the appellant discharged. If mistaken in that, we submit that the judgment should be reversed and the cause remanded for a new trial. W.D. Conn, Jr., Assistant Attorney-General, for the State. There appears to be no dispute or conflict in the record as to the fact of the burglary. After the burglary was discovered, appellant was found to be in the possession of about four and one-half gallons of some description of oil. It is not clear from the record that what he had was differential grease. So far as we have been able to determine from the record, there was never any identification of what he had as being a part of that which was stolen. There were no identification marks on or about the oil or grease in appellant's possession. It was not shown that appellant was ever about the place where the differential grease was stored. Under the decisions of this court in Robinson v. State (Miss.), 178 So. 588; Sorrells v. State, 130 Miss. 300, 94 So. 209, and Jackson v. State, 118 Miss. 602, 79 So. 809, we submit that there is no evidence in this record upon which a verdict of guilty could be predicated, and the motion to exclude should have been sustained. The record does not show that the appellant ever requested a peremptory instruction. The record shows that a motion for a new trial was filed, but there is nothing to indicate that this motion was ever brought to the attention of the court. Therefore, there is nothing for this court to review with reference to this motion for a new trial. Cogsdell v. State (Miss.), 185 So. 206.

Judges

McGowen, J., delivered the opinion of the court.

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PATTERSON v. STATE.

1. BURGLARY.

Evidence that warehouse had been broken into, that about 10 gallons of differential grease were stolen therefrom, and that thereafter accused was found in possession of 4 1/2 gallons of some kind of oil or grease, would not sustain conviction of burglary, in absence of evidence that grease or oil in possession of accused came from warehouse, or that it was part of the stolen property, or that accused was ever about the place where the differential grease was stored.

2. CRIMINAL LAW.

Where motion by accused to exclude all evidence offered by the state is denied, and evidence is thereafter offered by accused, motion cannot be treated as a request for peremptory instruction.

3. CRIMINAL LAW.

When there is an entire absence of any evidence to convict accused of crime charged in indictment, the point may be raised for first time on appeal.

McGowen, J., delivered the opinion of the court.

The appellant, Lonnie Patterson, was convicted of burglary and larceny in the court below, and sentenced to serve three years in the penitentiary; from which sentence this appeal is taken.

The evidence discloses that Mrs. Holloway was the owner of a bulk plant in the city of Laurel, and that sometime prior to the indictment of the appellant her warehouse had been broken into, and about ten gallons of differential grease stolen therefrom.

There is no substantial dispute in this record as to the fact of the burglary. The state rested its case upon the theory that the appellant was found in possession of four and a half gallons of some kind of oil or grease — it is not clear whether it was differential grease or oil. There was no evidence that this grease or oil came from Mrs. Holloway's warehouse, nor was it identified as being part of the stolen property; or that the appellant was ever about the place where Mrs. Holloway's differential grease was stored. There was no sort of identification of the oil or grease as being the stolen property, or a part thereof.

In this state of the record the judgment of the lower court cannot be allowed to stand. Robinson v. State, 180 Miss. 774, 178 So. 588, and authorities there cited.

The appellant argues the case as though he had requested a peremptory instruction. The record does not disclose that such request was made of the court.

At the conclusion of the state's case the appellant made a motion to exclude all the evidence offered, which was overruled by the court. Thereafter the appellant testified, offering other evidence.

Under the rule in this state the motion to exclude the evidence followed by evidence offered by the appellant, cannot be treated as a request for peremptory instruction. See Alabama V.R. Co. v. Kelly, 126 Miss. 276, 88 So. 707.

However, "When . . . there is an entire absence of any evidence to convict accused of crime charged in indictment, the point may be raised for the first time on appeal." See Cogsdell v. State, 183 Miss. 826, 185 So. 206.

Reversed and remanded.

PATTERSON v. STATE.

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