DAVIS ET AL. v. STATE

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Docket Number

No. 36207.

Judges

McGehee, J., delivered the opinion of the Court.

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DAVIS et al. v. STATE.

J.M. Travis, of Meridian, and J.A. McFarland, Sr., of Bay Springs, for appellants.

The declarations of a conspirator are not admissable against a co-conspirator if not uttered in the presence of the latter, unless made while doing some act in furtherance of the common purpose.

Gillum v. State, 62 Miss. 547.

See also, Foster v. State, 92 Miss. 257, 45 So. 859; Simmons v. State, 61 Miss. 243; Lynes v. State, 36 Miss. 617, 2 Mor. St. Cas. 1208; Jones v. State, 189 Miss. 533, 198 So. 555.

Confessions or admissions of one codefendant are not admissible in evidence against another, unless they were made in his presence and assented to by him.

Williamson v. State (Ala.), 186 So. 785; Dosey v. State (Ala.), 171 So. 729; 16 C.J. 689, Sec. 1314.

The testimony of S.T. Gandy did not reveal or show that the yearling alleged to have been sold to the Laurel Packing Company by Harvey Davis was the particular yearling set out in the indictment. It was incumbent upon the State to first show that the yearling stolen was the yearling about which Mr. Lytle was to testify. The State has not shown anywhere in the record that the yearling sold by Harvey Davis was the yearling alleged to have been stolen. Without any proof of identity, the testimony was certainly incompetent as to both appellants. This was highly prejudicial against the appellant, Emmett Sims, for the reason that there is no testimony to show that he was present or had anything to do with the selling of the bull calf to the said Laurel Packing Company, all of this happening out of his presence. This testimony being offered in the absence of the appellant, Emmett Sims, constitutes reversible error as to him.

Under the law, the jury should have been instructed to the effect that they could find either one of the appellants guilty or both of the appellants guilty, if the testimony and evidence warranted the same, and to the effect that if the evidence was not sufficient against either one of the defendants that it was the duty of the jury to find him not guilty; in other words, the jury were not furnished by the State competent instructions covering the actual law of the case from the testimony and evidence, and we think that the case should be reversed on account of the same.

A felonious taking is necessary to constitute larceny.

Watkins v. State, 60 Miss. 323; Alexander v. State, 60 Miss. 953; Williams v. State, 63 Miss. 58.

In grand larceny the taking of the property of sufficient value to constitute the offense must be shown beyond all reasonable doubt. This the State failed to do.

Francis v. State, 87 Miss. 493, 39 So. 897.

In felony cases the corpus delicti must be proved by evidence aliunde the confessions of accused.

Keithler v. State, 10 Smedes M. (18 Miss.) 192; Upton v. State, 192 Miss. 339, 6 So.2d 129; Heard v. State, 59 Miss. 545; Williams v. State, 129 Miss. 469, 92 So. 584; Miller v. State, 129 Miss. 774, 93 So. 2; Gross v. State, 191 Miss. 383, 2 So.2d 818; Cooper v. State, 130 Miss. 288, 94 So. 161; Stringfellow v. State, 26 Miss. 157; Pitts v. State, 43 Miss. 472; Jenkins v. State, 98 Miss. 717, 54 So. 158; Stanley v. State, 82 Miss. 498, 34 So. 360; Rayborn v. State, 115 Miss. 730, 76 So. 639; Patterson v. State, 127 Miss. 256, 90 So. 2; Williams v. State, 129 Miss. 469, 92 So. 584; Garner v. State, 132 Miss. 815, 96 So. 743; Gipson v. State, 162 Miss. 480, 139 So. 868; Brooks v. State, 178 Miss. 575, 173 So. 409; Richardson v. State, 196 Miss. 560, 17 So.2d 799.

The State wholly failed to prove venue, which we contend is fatal error. Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.

The testimony was sufficient to show that the crime of larceny had been committed in the First Judicial District of Jasper County. The conversation Sims had with the two Gandy brothers shows that Sims was guilty and Davis confessed his guilt to the sheriff. The record clearly shows that both of them had, by confession, stated that they got the cattle out of the Gandy pasture which, the record shows, was located in said First Judicial District of Jasper County, Mississippi. The defendant did not introduce any proof on any propostion. It was wholly competent to admit the testimony of M.L. Gandy and S.T. Gandy and also the testimony of Lytle and others; all of which testimony was sufficient, in the absence of a dispute, to sustain the verdict of the jury in the case. The trial judge limited the statement of each of the confessions to the particular defendant doing the confessing. The circumstances disclosed by Ratcliff, the testimony of the Gandy brothers about missing the yearling from the pasture, and the testimony of Lytle that he bought a yearling of that description from Davis and paid him for it in the sum of $19.55, less a commission to the Laurel Stock Yards, amply makes the guilt of each of the defendants manifest. The record does not show a motion for a severance; and the instructions given to the jury by the court are ample to sustain a conviction.

The only question of any importance in this case is with reference to the admission of the statements by the defendants on the preliminary trial in the justice of the peace court, wherein they pled guilty. The circuit judge ruled out the evidence, when it was offered, as to the plea of guilty in the court below but admitted the statement that they had each pled guilty. The judge and counsel for appellants seem to have proceeded on the theory that a plea of guilty could not be offered in evidence where the plea of guilty was made either in a justice of the peace trial or in an investigation by the justice of the peace as a conservator of the peace to determine whether or not there was probable evidence of the commissions of a felony to be investigated by the grand jury. The record does not clearly show whether it was tried in the justice of the peace court or whether the justice of the peace investigated this matter as for the commission of a felony in the capacity of conservator of the peace. However, as the prosecution proceeded on an indictment and not on affidavit, it must be presumed that it was an investigation by the justice of the peace as conservator of the peace on the probability that a felony had been committed.

A plea of guilty on another trial, either on appeal or from a committing court, is admissible as evidence.

Jenkins v. State, 98 Miss. 717, 54 So. 158; Heard v. State, 59 Miss. 545; Johnson v. State, 196 Miss. 402, 17 So.2d 446; Elliott v. State, 185 Miss. 381, 189 So. 796; Encyclopedia of Evidence, "Judicial Confessions," p. 334.

The instructions taken together, as they must be, as one announcement flowing from the court to the jury, there is no error in this record.

Argued orally by J.M. Travis, for appellants, and by Geo. H. Ethridge, for appellee.

1. CRIMINAL LAW.

Where defendants jointly indicted for grand larceny made no application for a severance and were tried together, confessions of each not made in the presence of the other but implicating the other were admisisble under limitation that each applied only to defendant who made it (Code 1942, sec. 2514).

2. CRIMINAL LAW.

Failure to instruct jury as to its right to convict one of two defendants jointly indicted and tried for grand larceny was not error, in absence of request.

3. CRIMINAL LAW.

Admission of testimony of manager of stockyards where stolen yearling was sold was not reversible error, though he was unable to identify yearling purchased as the one stolen from prosecuting witnesses, where his testimony as to price paid corresponded with amount one defendant told sheriff that he received for the yearling, neither defendant denied having made confessions introduced in evidence, and proof was ample to establish both corpus delicti and venue.

McGehee, J., delivered the opinion of the Court.

The appellants, Harvey Davis and Emmit Sims, were jointly indicted, tried and convicted of grand larceny. Neither of them made application for a severance as is provided for by Section 2514, Code of 1942. Upon the trial the State introduced a confession made by Harvey Davis to the sheriff, wherein he involved his codefendant, and the State also introduced a confession of Emmit Sims made to the owner of the stolen property wherein he involved his codefendant. Neither confession was made in the presence of the other defendant, and, threfore, the introduction of each confession was objected to on that ground. The trial court sustained the objection as to the defendant in each instance who was not present, but admitted the same as to the defendant who gave the confession. The admission of each confession is assigned as prejudicial error as to the defendant who was not present at the time of the making thereof. But we are of the opinion that the trial court was not in error in that behalf. The State was entitled to make out its case against each of the defendants, and since they did not ask for a severance they were not entitled to more than to have the confession limited to the defendant who made the same.

It is next contended that it was error to grant the State an instruction which did not by its terms give the jury the authority to convict one of the defendants and acquit the other if justified under the evidence. The only instruction obtained by the State, other than the one as to the form of the verdict, was to the effect that if the jury believe from the testimony, beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis consistent with the innocence of the defendants, that they were guilty as charged in the indictment, the jury should so find. The defendants did not ask for an instruction on the right of the jury to convict one of the defendants and acquit the other, and therefore the trial court can not be put in error for not granting an instruction which was no requested by either the prosecution or the defense.

It is next contended that the testimony of the manager of the stock yards where the stolen yearling was sold should have been excluded because he was unable to say that the yearling purchased by the stockyards was the same one stolen from the pasture of the prosecuting witnesses. However, he was able to state the price paid for the yearling in the sum of $19.55, and this price corresponded with the amount that Harvey Davis told the sheriff that he received for the same. Moreover, neither of the defendants took the stand and denied having made these confessions, respectively, and since the proof is ample in our opinion to establish both the corpus delicti and the venue of the crime, we find no reversible error in the case. The judgment of the trial court will, therefore, be affirmed.

Affirmed.

Sydney Smtih, C.J., did not participate in this decision.

DAVIS et al. v. STATE.

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