Opinion
No. 33820.
December 11, 1939.
1. CRIMINAL LAW.
The giving of bond by defendant, arrested under warrant issued by justice of peace on affidavit charging defendant as an accessory before the fact to the crime of robbery to await action of grand jury, amounted to discontinuance of prosecution in justice of peace court and waiver of defendant's right under statute to be taken before officer for an examination. (Code 1930, sec. 1230.)
2. CRIMINAL LAW.
The affidavits of filling station operator and drug store clerk contradicting self-confessed accomplices as to whereabouts of defendant accused as an accessory before the fact to the crime of robbery, at time of alleged division of proceeds of robbery, warranted new trial under statute, notwithstanding that defendant's attorney should have known of testimony, where self-confessed accomplices contradicted each other in many particulars in regard to defendant's participation in the robbery and deliberately misled the attorney in his preparation for trial. (Code 1930, sec. 592.)
3. CRIMINAL LAW.
In prosecution against defendant charged as an accessory before the fact to robbery, instruction for state should require jury to believe, as condition precedent to its right to convict defendant, that the principal placed the person robbed in fear of immediate injury to his person, or took his money by violence, so as to render the principal guilty of robbery.
4. CRIMINAL LAW.
In prosecution against defendant charged as an accessory before the fact to robbery, defendant was entitled to prove his previous general reputation for honesty as well as his good character and reputation with respect to the trait of peace or violence, since crime of robbery involved issue of honesty as well as issue of peace and violence.
APPEAL from the Circuit Court of Jackson County; HON. L.C. CORBAN, Judge.
Otto Karl Wiesenburg, of Pascagoula, and Mize, Thompson Mize, of Gulfport, for appellant.
The trial court erred in overruling the defendant's motion to quash the indictment, and the plea in abatement thereof, on the ground that on May 10, 1939, eight days prior to the returning of the indictment in this case against the defendant, proceedings had been instituted before a justice of the peace for Supervisors Beat #3 of Jackson County, Mississippi, by affidavit charging the said offense, and warrant issued thereon; that the defendant had not waived a preliminary hearing but had demanded the same, and that he had been denied a preliminary examination of his case as provided by Section 1230 of the Code of 1930.
Miss. Code of 1930, Sections 1195, 1230, 1249, 1320, 1321, 1322, 1323, 1324; 16 C.J. 316, Sec. 562; 16 C.J. 332, Sec. 599; 16 C.J. 346, Sec. 634; 31 C.J. 576, Sec. 27; 14 Am. Jur. 933, Sec. 240; State v. Pay, 45 Utah 411, 146 P. 300; State v. Recorder First Dist., 42 La. Ann. 1091; State v. Brunot, 28 So. 996, 104 La. 237; People v. Quinn, 150 App. Div. 813, 818, 135 N YS. 477; Ex parte Simpson, 57 So. 518, 3 Ala. App. 222; Hughes v. State, 96 Miss. 581, 41 So. 464; Atkinson v. State, 132 Miss. 377, 96 So. 310; State v. McKinley (Mo.), 111 S.W.2d 115; State v. Freeman (Utah), 71 P.2d 196; People v. Dochstader, 264 N.W. 356, 274 Mich. 238; State v. Leek (Utah), 39 P.2d 1091; Bailey v. State (Okla.), 30 P.2d 714; State v. King (S.D.), 252 N.W. 36; State v. Anderson (S.D.), 242 N.W. 119; Ex parte Martin (Texas), 45 S.W.2d 965; Davis v. State (Nebr.), 237 N.W. 297; Com. v. Moss, 24 Pa. Co. Ct. 221; State v. Boehm, 279 N.W. 824; 116 A.L.R. 547; People v. Mayaguez Sugar Co., 37 Porto Rico 106; Ex parte Bedard, 106 Mo. 616, 17 S.W. 693; People v. Alex, 265 N.Y. 192, 192 N.E. 289; State v. Jeffries, 210 Mo. 302, 109 S.W. 614, 14 Ann. Cas. 524; Latimer v. State, 55 Nebr. 60, 76 N.W. 207.
The trial court erred in granting an instruction for the state that prejudicially singled out two isolated facts and elements of the state's case for the consideration of the jury, that gave undue prominence to the controverted sharing of the proceeds of the alleged robbery was consummated, and that erroneously instructed the jury that the defendant should be found guilty as an accessory before the fact to robbery if an apparently unrelated assault and larceny had been committed.
Code of 1930, Sections 769 and 1126; 4 Blackstone Commentaries 242; McDaniel v. State, 8 S. M. 401; Smith v. State, 82 Miss. 793, 35 So. 178; Blackwell v. State, 94 Miss. 240, 48 So. 290; Webb v. State, 99 Miss. 545, 55 So. 356; Buford v. State, 124 Miss. 418, 86 So. 860; Prane v. State, 73 Miss. 838, 19 So. 711; Godwin v. State, 73 Miss. 78, 19 So. 712; Hood v. State, 170 Miss. 130, 155 So. 679; Jackson v. State, 66 Miss. 89, 5 So. 690; Fore v. State, 75 Miss. 727, 23 So. 710; Gordon v. State, 93 Miss. 543, 49 So. 699.
The trial court erred in holding immaterial a question propounded to the state witness and principal, Frank (Billy) Moody, as to the identity of the person who allegedly advised the witness that the defendant, Marshall De Angelo, had informed as to Frank (Billy) Moody's participation in the crime. Such question being competent on cross-examination to show the bias and motive of the witness and affecting his credibility.
Sec. 26, Constitution; Sec. 1532, Code of 1930; McClelland v. State, 98 Miss. 735, 54 So. 251; Hardy v. State, 167 Miss. 150, 148 So. 627; George v. State, 39 Miss. 570; Newcomb v. State, 37 Miss. 383; McMasters v. State, 81 Miss. 374, 33 So. 2; Upchurch v. State, 81 Miss. 374, 51 So. 810; Rouse v. State, 107 Miss. 427, 65 So. 501; Prewitt v. State, 126 So. 824, 156 Miss. 571; Wharton, Crim. Ev., Sections 1312-1314, pages 2186 to 2188; 70 C.J., Sec. 779, page 611; 70 C.J., Sec. 782, page 615; 70 C.J., Sec. 792, page 620; 70 C.J., Sec. 1017, page 812; 70 C.J., Sec. 1025, page 817; 70 C.J., Sec. 1197, page 990.
The trial court erred in refusing to permit the defendant to prove his general good character and reputation in the community in which he resided, and erred in limiting such testimony to the general reputation of the defendant for peace and violence in the community in which he resided, which is not a trait involved in the alleged offense of an accessory before the fact to robbery.
Westbrooks v. State, 76 Miss. 710, 25 So. 491; Jefferson v. State, 102 Miss. 174, 59 So. 8; Maston v. State, 83 Miss. 647, 36 So. 70; Horton v. State, 36 So. 1033; Wharton Crim. Ev., Sec. 331, page 460; 16 C.J., Sec. 1124, page 582; 22 C.J., Sec. 565, page 474; People v. Woods, 206 Mich. 11, 172 N.W. 383; Code of 1930, Sec. 1126; McCray v. State, 153 Miss. 587, 121 So. 291; Thomas v. State, 165 Miss. 897, 148 So. 225; Jones v. State, 152 Miss. 900, 120 So. 199; Woods v. State, 6 So. 207; Cockrell v. State, 95 S.W.2d 408.
The trial court erred in overruling the motion for a new trial on the ground of newly discovered evidence, which motion was supported by the sworn affidavit of the defendant, the defendant's counsel, and three witnesses. The affidavits set out that the defendant's counsel had interviewed the state witness, Harold Goff, the only material witness testifying before the grand jury, as shown by the indorsement on the back of the indictment. That the witness, Harold Goff, had, in answer to the questions of the defendant's counsel, stated that Marshall De Angelo was in no way involved or implicated in the alleged crime, and that neither the witness, Harold Goff, nor Marshall De Angelo knew that any robbery was to be committed by Frank (Billy) Moody. That when the witness, Harold Goff, testified for the state at the trial, he admitted he had lied to that attorney, without giving any reason for so doing. That the defendant, who was denied a preliminary hearing, and who had exercised all due diligence to determine what evidence would be used against him at the trial, became advised during the trial that the witness, Harold Goff, and the witness, Frank (Billy) Moody, who had not appeared before the grand jury, were testifying to facts that made the whereabouts of the defendant on the day following the date set out in the indictment, to-wit, between 4:30 and 7:30 P.M., Sunday night, February 5, 1939, of paramount importance to his defense. That the defendant and his counsel had exercised all due diligence, but that due to the denial of a preliminary hearing and to the deliberate falsehoods of the witness, Harold Goff, the defendant was not apprised until the time of the trial as to what evidence had had to meet. The affidavits of the three witnesses, attached to the affidavit, set out in detail that such witnesses would testify that Marshall De Angelo was in Grand Bay, Albama between 4:30 and 7:30 P.M. during the time the proceeds of the alleged robbery were alleged to have been divided with the defendant.
Bryant v. State, 172 Miss. 210, 157 So. 346; McCearley v. State, 97 Miss. 556, 52 So. 796; Bates v. State, 32 So. 915; Buckner v. State, 81 Miss. 140, 32 So. 920; Turner v. State, 89 Miss. 621, 42 So. 165; Weathersby v. State, 95 Miss. 30, 48 So. 724; Williams v. State, 99 Miss. 274, 54 So. 857; Watson v. State, 96 Miss. 369, 50 So. 627; Campbell v. State, 123 Miss. 713, 86 So. 513.
The trial court erred in overruling the defendant's motion for a new trial on the ground that the verdict is against the overwhelming weight of the evidence, not being supported by any credible evidence, the verdict resting on the uncorroborated testimony of two accomplices, Frank (Billy) Moody and Harold Goff, whose testimony was unreasonable, incredible, and contradictory, while the good character and good reputation of the defendant was testified to by eight witnesses of the community in which he resided and was admitted by the State of Mississippi.
16 C.J., Sec. 1453, page 710; Creed v. State, 176 So. 596, 179 Miss. 700; Day v. State (Miss.), 7 So. 326; Sykes v. State, 92 Miss. 247, 450 So. 838; Thomas v. State, 129 Miss. 332, 92 So. 225; Wright v. State, 130 Miss. 603, 94 So. 716; Hunter v. State, 137 Miss. 276, 102 So. 282; Abele v. State, 138 Miss. 772, 103 So. 370; White v. State, 146 Miss. 815, 112 So. 27; Harmon v. State, 167 Miss. 527, 42 So. 473; Rutledge v. State, 171 Miss. 311, 157 So. 907; Carter v. State (Miss.), 166 So. 377.
W.D. Conn, Jr., Assistant Attorney-General, for appellee.
The court properly overruled the motion to quash and denied the plea in abatement for two reasons.
A. The fact that no preliminary hearing was given defendant, although demanded, did not affect the jurisdiction of the Circuit Court to try him on a felony indictment regularly returned by the grand jury, even though it involved the identical offense charged by the affidavit before the Justice of the Peace.
Sec. 1230, Code of 1930; Inapplicability of State v. Pay, 45 Utah 411, 16 C.J. 316, Sec. 562.
B. The defendant, by posting bond and having himself released from custody, waived his right to a preliminary hearing, irrespective of whether such hearing is "a substantive right or procedural nicety."
The matter complained of in connection with cross-examination of Moody, a state witness, is an immaterial or collateral one and the court properly sustained objection thereto.
Cofer v. State, 158 Miss. 493, 130 So. 511; Witt v. State, 159 Miss. 478, 132 So. 338; Bradford v. State, 166 Miss. 296, 146 So. 635.
The court did not improperly restrict proof of defendant's "reputation."
Westbrooks v. State, 76 Miss. 710, 25 So. 491; Jefferson v. State, 102 Miss. 174, 59 So. 8.
The evidence alleged to be "newly discovered" was not such under the decisions of this court.
Powers v. State, 168 Miss. 541, 151 So. 730; Carraway v. State, 167 Miss. 390, 148 So. 340.
The evidence of the state is not of such character as to warrant the granting of a new trial.
Boutwell v. State, 65 Miss. 16, 143 So. 479; Matthews v. State, 148 Miss. 696, 114 So. 816; Gates v. State, 160 Miss. 479, 135 So. 189.
Proof of acts subsequent to offense as throwing lights on question of guilt as accessory before the fact.
Watson v. State, 166 Miss. 194, 146 So. 122; Wynn v. State (Miss.), 159 So. 840.
Argued orally by Robert W. Thompson, Jr., for the appellant, and by W.D. Conn, Jr., for the State.
This appeal is from a conviction of the appellant as an accessory before the fact to the crime of robbery; whereupon he was sentenced to serve a term of five years in the state penitentiary.
On Saturday night, February 4, 1939, at about eleven o'clock, one Billy Moody, held up and robbed, by the use of a pistol, Grover C. Carter, in his store located in the Wade community, about twenty miles north of Kreole, in Jackson county; and took, stole and carried away about $35 in money, and certain checks. No one else was present in or about the store building at the time of the robbery except Mr. and Mrs. Carter and the said Billy Moody. He was later arrested, charged with the crime, and placed in jail at Gulfport in Harrison county, from whence he escaped; but thereafter surrendering himself to the officers, he was placed in the Jackson county jail shortly before the Circuit Court convened in that county on May 15, 1939. While in custody he had learned from other prisoners, or from some source which, upon the trial of the appellant, he refused to disclose, that the "others" (meaning the appellant and Harold Goff, who had carried him by automobile late that Saturday evening to a place near the scene of the crime) had "squealed," the inference being that he had learned that the officers had ascertained through these two parties the fact that he, Moody, had been left by them near the scene of the crime a few hours prior to the robbery.
It appears that he then implicated both the appellant and Harold Goff in the crime, claiming that they both took him up there, and later returned in the car for him, pursuant to an agreement that they should meet him at a certain school-house near the store after one o'clock that night, and by further claiming that the three of them divided the money and checks taken from the store, at about five o'clock Sunday afternoon, the day following the robbery.
It further appears that the appellant and Goff worked at a paper mill at Kreole from seven that Saturday evening until one o'clock in the morning; that as a matter of fact they did take Moody in the appellant's automobile from Moss Point to the vicinity of the crime at about four or five o'clock that Saturday evening, and also that the appellant and Goff later drove back to the Wade community, to a point about a mile and a half north of Carter's store.
The appellant contends that he and Goff took Moody to the vicinity of Carter's store at Goff's suggestion, and that Moody paid the appellant a dollar for his transportation, claiming that he was going from there to McLain, Mississippi, later that night; that he knew nothing of the proposed robbery; that when he and Goff got off from work at the paper mill at one o'clock that night, he went to his automobile and found Goff seated in it, and that Goff thereupon suggested that they go back to the Wade community, where he thought there was a dance still in progress; that they went back up there for that purpose, and not for the purpose of meeting Moody; that en route to the dance hall they passed Carter's store and the school-house, but did not try to find Moody; that upon their return they stopped at Carter's store, where the sheriff and his deputy were investigating the robbery, and appellant borrowed Mr. Carter's flashlight to see how to adjust the lights on the automobile, which were flickering and giving trouble; that Goff, who lived in that community, wanted appellant to stay and spend the night with him at his father's home, but instead they returned to Kreole that night, going back Sunday afternoon to visit in Goff's home, and at his uncle's, returning to Kreole at about four o'clock that afternoon; that from Kreole appellant drove to Grand Bay, Alabama, twenty miles away, had his car lights fixed at a filling station not later than 4:30 P.M., and remained at Grand Bay until 7:30 that evening, at the home of Mrs. Minnie McClinton, where he had a date with her daughter, whom he brought back to Kreole that night, she being employed at that place; and that he was therefore not in the vicinity where Moody and Goff claimed that the three of them had divided the proceeds of the robbery on Sunday afternoon, between five and six o'clock according to Moody, and as late as six o'clock according to Goff.
The appellant was arrested on May 10th, under a warrant issued by a justice of the peace on an affidavit charging him with the crime, and on May 12th, which was only three days prior to the convening of the Circuit Court in Jackson county, he employed an attorney, and demanded a preliminary trial. His request for a preliminary hearing was denied, for the reason that the state was not ready; but an agreement was reached whereby he was released under a $2,000 appearance bond to await the action of the grand jury which was to convene on the following Monday. The bond was tendered and accepted on May 13th, before the grand jury convened on the 15th. This procedure is mentioned for the reason that the appellant was indicted jointly with Moody for robbery with firearms under one indictment, and separately as a principal under another, on the theory that he was an accessory before the fact to the crime, and a motion to quash the indictments was made, followed by a plea in abatement, on the ground that the appellant had been denied a preliminary hearing, and the charge against him was still pending in the justice of the peace court at the time the indictment was returned; and the overruling of the motion and plea is here assigned as error.
We are of the opinion that the giving of the bond by the appellant, to await the action of the grand jury, amounted to a discontinuance of the prosecution in the justice of the peace court, and a waiver of the appellant's right, under section 1230, Code of 1930, to be taken before the officer for an examination of his case. Hence, we are of the opinion that no error was committed by the trial court in overruling the plea and the motion to quash the indictments.
It seems that the indictments against the appellant were presented partly upon the testimony of Harold Goff, who in testifying as a witness against the appellant, stated that he went before the grand jury voluntarily, and without any process having been issued for him as a witness. Goff then testified on the trial that he and the appellant took Moody to the scene of the crime for the purpose of enabling him to commit the robbery, and that they returned for Moody after one o'clock that night; and that although they didn't find Moody until Sunday afternoon, the three of them divided the money and checks at about six o'clock Sunday afternoon. He also testified that when he and the appellant returned to the Wade community that night, after the robbery, drove beyond Carter's store, and passed the school-house, they were not looking for Moody; then later swore that they went to the school-house, looked for him, and that he didn't come. He admitted that Moody paid the appellant a dollar on the way there, in the first instance. He first testified that they "picked up" Moody Sunday afternoon in an "old bunk hall" near the paper mill, to go and divide the money, and later swore that they overtook him on the highway, when he got in the car; whereas, Moody swore that he was at home asleep when they came for him to go and divide the money. Goff talked to the appellant's attorney after having gone before the grand jury, stating that the appellant was not implicated in the robbery; that he didn't know that Moody intended to stage the holdup; that Moody paid the appellant a dollar to take him up there; and deliberately withheld from the attorney any contention that the appellant participated in the division of the proceeds of the crime. Moreover, he made other statements which led the attorney to believe that his testimony would not be at variance with the appellant's version of what had occurred. Therefore, the attorney, who was prepared to show that appellant was at work at the time of the robbery, was not guilty of any lack of diligence in not having Mrs. McClinton, the filling station operator, and a drug store clerk from Grand Bay, Alabama, present to contradict Goff as to the whereabouts of the appellant at the time of the alleged division of the money on the next evening after the robbery, all of whom made affidavits in that behalf of a motion for a new trial. His first duty was to locate the witness, Miss McClinton, who was within the jurisdiction of the court, and to have her present the next morning to testify. This was done, but it is to be presumed that since the appellant did not then know the names of some of those witnesses in Alabama, it would have been necessary for the attorney to go to Grand Bay to investigate the matter of whom he should arrange to have come to court.
It is true, as contended by the state, that this was not newly discovered evidence, within the legal meaning of that term; and it may be conceded that the action of the trial court in overruling the motion for a new trial on that ground, considered alone, would not constitute reversible error. But when considered in connection with the fact that two self-confessed accomplices contradicted each other in many material particulars in regard to the appellant's participation in the crime, the fact that Moody, who admitted that he was supposed to have a bad reputation with those who knew him, was not corroborated by anyone in the store where he claims that appellant purchased cartridges for the holdup while they were en route to the scene of the crime, together with the fact that Goff appears to have escaped indictment by reason of having voluntarily testified before the grand jury, and then later admitted that he had not told the appellant's attorney the truth about the matter, thereby deliberately misleading the attorney in his preparation for the trial, we are of the opinion that the court below, in the exercise of his authority, section 592, Code of 1930, should have sustained the motion for a new trial upon the showing made, and in view of all the facts and circumstances disclosed by the evidence.
Since the case is to be remanded for a new trial, it should be observed that the instruction for the state here complained of as error is subject to the objection that it does not sufficiently require the jury to believe, as a condition precedent to its right to convict appellant as an accessory before the fact, that Moody placed Grover Carter in fear of immediate injury to his person, or took his money by violence, so as to render him guilty of robbery.
The appellant is a young man, about twenty years of age, a high school graduate, and it appears that he has enjoyed a good reputation. Complaint is made of the ruling of the court below to the effect that the proof of good character and reputation should be limited to the trait of peace or violence. We think, however, that he was entitled to likewise prove his previous general reputation for honesty and integrity, since the crime of robbery involves that issue, as well as the issue of peace or violence. However, the question to which the state's objection was sustained was not properly directed to that inquiry as the record now stands.
For the reasons hereinbefore stated the cause is reversed and remanded.
Reversed and remanded.