Summary
holding that the indictment was permissibly amended to change the brand name of the barbed wire stolen
Summary of this case from Nations v. StateOpinion
No. 38995.
February 8, 1954.
1. Criminal law — indictment — amendment of — description of property stolen.
In prosecution for burglary wherein accused was charged in indictment with stealing seven spools of "J L" barbed wire of value of ten dollars per spool, allowance of amendment to indictment by inserting therein "USS Lyman" as part of description instead of "J L" was not prejudicial as accused knew that the property he was charged with stealing was spooled barbed wire. Sec. 2532, Code 1942.
2. Criminal law — indictment — amendment of — to show true possessor of property burglarized.
In such case, allowance of amendment to indictment to show that possessor and operator of warehouse burglarized was in fact mother of person named in indictment, was not prejudicial to accused, but was in fact a protection against another prosecution for the same crime. Sec. 2532, Code 1942.
3. Criminal law — instructions — confessions.
Instruction that it is the duty of jury to decide on law and facts of a claimed confession was properly refused as an incorrect statement of law, since admissibility of confession is for the determination of trial judge, and, when admitted, jury considers confession in the light of evidence by which it was obtained and gives it such weight and credibility as they think it is entitled.
4. Criminal law — instructions — presumption of innocence as a witness — properly refused.
Refusal of instruction on presumption of innocence concluding with statement that presumption of innocence has power and strength of witness in Court, corroborating everything leading to defendant's innocence and denying everything tending to show guilt of defendant, was not error, since trial judge has no right to instruct on weight of evidence or on strength of a presumption.
5. Criminal law — instructions — confessions.
Refusal of instruction that no matter what had been testified as to words spoken by defendant, no such words form basis of a conviction, but State was required to show guilt beyond and above his words before conviction was justified was not error as such instruction was misleading and incorrect in that confession may be considered by jury along with other testimony in determining guilt of defendant.
Headnotes as approved by Roberds, P.J.
APPEAL from the circuit court of Grenada County; HENRY L. RODGERS, Judge.
Stone Stone, Coffeeville, for appellant.
I. The Court erred in allowing the amendment of the indictment over the objection of the appellant stated in the record.
II. The Court erred in admitting the testimony of the various witnesses as to a change in the description of the property alleged to have been stolen and a change in the name of the alleged owner of the property, all these objections being made as the testimony came in.
III. The Court erred in allowing the testimony of a purported confession of the appellant to Sheriff S.L. Davis when it was shown by preliminary examination that the evidence was bluffed and bullied out of the appellant by the said Sheriff.
IV. The Court erred in admitting the testimony of the said Sheriff Davis as to the confession, and also the testimony of Davis as to a later confession, because the first confession having been improperly admitted no other confession to Fedric or others could be competent.
V. The Court erred in granting each instruction granted to the State.
VI. The Court erred in refusing each instruction refused the appellant.
VII. Specifically, the Court erred in refusing the instruction informing the jury that no matter what was shown as to words spoken by the defendant, the State must show the guilt of the defendant beyond and above his words before a conviction is justified.
VIII. The Court erred in refusing the instruction that the presumption of innocence has the power and strength of a witness in Court, as shown on page eleven of the record, and the Court having refused it with this notation: "Because of the second paragraph the Court cannot instruct either upon weight of evidence or upon weight and strength of a presumption."
IX. The Court erred in refusing to instruct the jury as to their duty to decide as to whether a claimed confession was valid or legal as having been secured by an officer by an argument or persuasion to the point where a confession was demanded.
X. The Court erred in refusing the instruction to find the defendant not guilty.
XI. The Court erred in overruling the motion for a new trial.
John E. Stone, Asst. Atty. Gen., Jackson, for appellee.
I. An indictment may be amended to show the truth. Wilson v. State, 204 Miss. 111, 37 So.2d 19; Secs. 2448, 2532, 2535, 2542, Code 1942; Rule 11, Rules of Supreme Court.
II. Appellant's confession was properly admitted. Hawkins v. State, 193 Miss. 586, 10 So.2d 678.
III. It is not the function of the jury to decide the question of admissibility of a confession. Banks v. State, 93 Miss. 700, 47 So. 437; Brooks v. State, 178 Miss. 575, 580, 581, 582, 173 So. 409; Fisher v. State, 145 Miss. 116, 110 So. 361.
IV. The Court correctly refused instruction describing presumption of innocence as a witness. Bone v. State, 207 Miss. 20, 40, 41 So.2d 347; Carr v. State, 192 Miss. 195, 4 So.2d 887; Lott v. State, 205 Miss. 610, 627, 37 So.2d 782; Wright v. State, 209 Miss. 795, 48 So.2d 509.
V. The lower court correctly refused appellant's requested instruction regarding guilt must be shown outside a confession. Phillips v. State, 196 Miss. 194, 16 So.2d 630; Ruffin v. State, 205 Miss. 642, 648, 32 So.2d 269; Simmons v. State, 208 Miss. 523, 526, 44 So.2d 857.
Andrews was convicted of burglary in the felonious breaking and entering of a warehouse of Sam J. Simmons, Jr., "trading as City Lumber Company," from which as a part of the burglary, he is charged with stealing seven spools of "JL" barbed wire of the value of ten dollars per spool. He was sentenced to serve two years in the state penitentiary and appeals.
(Hn 1) When the case came on for trial the State moved the court for leave to amend the indictment by inserting therein "USS Lyman" as part of the description of the wire instead of "JL" as stated in the indictment, and to substitute Mrs. Sam J. Simmons, Sr., as the possessor and operator of the warehouse instead of Sam J. Simmons as laid in the indictment. Over the protest of Andrews the amendments were allowed and made. Andrews says that was reversible error. Section 2532, Mississippi Code of 1942, permits such amendments if the court shall "consider such variance not material to the merits of the case, and that the defendant cannot be prejudiced thereby in his defense on the merits." As to the description of the stolen property there is no question as to its identity. It was spooled barbed wire regardless of the name of the manufacturer or the particular brand thereof. Defendant knew that the property he was charged with stealing was spooled barbed wire. He could not possibly have been injured or prejudiced by that amendment. Davis v. State, 150 Miss. 797, 117 So. 116; State v. Grady, 147 Miss. 446, 111 So. 148; Mackguire v. State, 91 Miss. 151, 44 So. 802.
(Hn 2) As to the possessor and operator of the warehouse burglarized, it appears that Sam J. Simmons was the manager in charge of the business and the building in which the business was being carried on and in which the wire was located, although his mother, Mrs. Sam J. Simmons, Sr., was the owner and operator of such business. It was being conducted under the style of City Lumber Company and the indictment alleged the wire was in the warehouse of that company, and that the accused Andrews broke and entered that warehouse and stole the wire therefrom. It is not seen how the accused was injured or prejudiced by this change. Indeed, naming the true possessor and operator of the warehouse and owner of the business was a protection to the accused against another prosecution for the same crime. Wilson v. State, 204 Miss. 111, 37 So.2d 19. On the right and power of the court to amend so as to show the true owner see Foster v. State, 52 Miss. 695; Collier v. State, 154 Miss. 446, 122 So. 538; Crosby v. State, 191 Miss. 173, 2 So.2d 813; Haywood v. State, 47 Miss. 1; Garvin v. State, 52 Miss. 207; Murrah v. State, 51 Miss. 652; Kellum v. State, 213 Miss. 579, 57 So.2d 316. The accused made no motion for a continuance on the ground of surprise or that he was not prepared to meet the charge as alleged in the amended indictment.
Appellant says admission of his confessions was error. The sheriff testified that the next morning after the arrest of Andrews that he, Andrews, in the presence of the sheriff and the jailer, said that he helped to steal the wire, and he explained in detail how he and another person went to the warehouse, broke into the building, loaded the wire onto the truck of the other person and carried the wire away. In other words, he confessed the crime and explained the details. The sheriff testified that Andrews was not coerced or induced by word, threat or any other act, into making this confession but, on the other hand, it was free and voluntary. The sheriff also testified that the same confession was later made to him and the county attorney, without any threat or coercion whatever, by word or deed, and that this later admission, or confession, was entirely free and voluntary. The testimony of the sheriff was not contradicted. Andrews did not take the stand. The court was not in error in admitting this testimony.
(Hn 3) Appellant requested, and was refused, an instruction which told the jury "* * * that it is the duty of the jury to decide on the law and the facts of a claimed confession * * *." Appellant says refusal to grant that instruction was reversible error. In Brooks v. State, 178 Miss. 575, 173 So. 409, this Court said: "The instruction in effect, submits to the jury the admissibility vel non of the evidence of the confessions, with which the jury have nothing to do. The admissibility of a confession is for determination of the trial judge, and, when admitted, the jury may consider it in the light of the evidence by which it was obtained and give it such weight and credibility as they think it is entitled."
(Hn 4) Appellant requested, and was refused, this instruction:
"The Court instructs the jury that the defendant is presumed to be innocent of the crime charged and of every part thereof and the burden is on the State to prove his guilt beyond every reasonable doubt and to a moral certainty.
"This presumption of innocence has the power and strength of a witness in Court, corroborating everything leading to defendant's innocence and denying everything tending to show guilt of the defendant."
The court refused the instruction because of the last paragraph. He noted on the refused instruction that, in his opinion, he had no right to instruct on the weight of the evidence or the strength of a presumption. He correctly refused the instruction. Carr v. State, 192 Miss. 152, 4 So.2d 887; Lott v. State, 204 Miss. 610, 37 So.2d 782; Bone v. State, 207 Miss. 20, 41 So.2d 347; Wright v. State, 209 Miss. 795, 48 So.2d 509.
(Hn 5) Appellant requested, but was refused, this instruction:
"The Court instructs the jury that no matter what has been testified as to words spoken by defendant no such words form the basis of a conviction, but the State must show his guilt beyond and above his words before a conviction is justified."
The instruction is incorrect and misleading. A confession may be considered by the jury along with the other testimony in determining the guilt of a defendant. Ruffin v. State, 205 Miss. 642, 32 So.2d 269.
Affirmed.
Kyle, Arrington, Ethridge and Gillespie, JJ., concur.