Opinion
No. 39832.
November 7, 1955.
1. Criminal law — severance — request made after arraignment.
Although defendants jointly indicted for grand larceny had right to severance by applying for it before arraignment, the granting of a severance was discretionary with Trial Court where application was made after arraignment. Sec. 2514, Code 1942.
2. Criminal law — confession of one defendant — admissibility — in trial with co-indictees.
In prosecution of several defendants for grand larceny of tung nuts, Trial Court correctly ruled that written confession signed by one defendant was admissible only against such defendant and correctly instructed jury that it could not consider any admissions in such confession in determining guilt or innocence of the other defendants.
3. Larceny — evidence — established corpus delicti — sustained conviction.
Evidence was sufficient to establish corpus delicti, or fact that crime was committed, and was sufficient to sustain conviction of all defendants for grand larceny of tung nuts.
4. Larceny — of tung nuts — evidence — circumstantial evidence.
In such case, testimony of purchase by State witness of tung nuts from uncle of one defendant a day or so after the theft was unnecessary to conviction where there was other evidence to connect defendants with the theft, but such proof served as significant circumstantial evidence of guilt.
Headnotes as approved by Ethridge, J.
APPEAL from the Circuit Court of George County; LESLIE B. GRANT, Judge.
W.S. Murphy, Lucedale, for appellants.
I. The burden was on the State to prove (1) that the property was stolen, (2) that the property found in possession of the accused was the stolen property, (3) that the possession was recently after the larceny, and (4) that the accused's possession was personal, conscious, exclusive and unexplained by any direct or circumstantial evidence which would rebut the presumption of a taking by accused. Bester v. State, 222 Miss. 706, 77 So.2d 270; Johnson v. State (Miss.), 198 So. 554; Rutherford v. State, 196 Miss. 321, 17 So.2d 803; Wade v. State, 175 Miss. 434, 167 So. 617; Secs. 2240, 2514, Code 1942; 52 C.J.S., Sec. 132 p. 967.
II. Confessions should be received with great caution. Brown v. State, 142 Miss. 335, 107 So. 373; Buckler v. State, 171 Miss. 353, 157 So. 353; Gross v. State, 191 Miss. 383, 2 So.2d 818; Keeton v. State, 175 Miss. 631, 167 So. 70; Stubbs v. State, 148 Miss. 764, 114 So. 827.
III. In order to sustain a conviction, the proof must show that accused took the identical thing charged in the indictment to have been stolen. Wade v. State, supra.
IV. It is the rule in Mississippi that evidence to show the value of the property in grand larceny to be of the amount required in that charge must show such value beyond all reasonable doubt. Francis v. State, 87 Miss. 493, 39 So. 897; Stokes v. State, 58 Miss. 677.
J.R. Griffin, Asst. Atty. Gen., Jackson, for appellee.
I. The evidence was sufficient to connect the appellants, Dueitt and Highsmith, with the crime. Bolin v. State, 209 Miss. 867, 48 So.2d 581; Bone v. State, 207 Miss. 868, 43 So.2d 571; Simmons v. State, 208 Miss. 523, 44 So.2d 857.
II. The contention that the crime as alleged in the indictment was not proved, inasmuch as the value of the things stolen was proved to be greater than the value alleged in the indictment, and that the quantity proven to be stolen was greater is without merit. Francis v. State, 87 Miss. 493, 39 So. 897.
III. The contention that the statements as to the date of the crime are conflicting and that, therefore, the proof is insufficient and the verdict of the jury should be set aside is without merit. Oliver v. State, 101 Miss. 383, 58 So. 6; West v. State, 49 So.2d 271.
IV. The confession of Buck Alford was admissible. Daniels v. State, 212 Miss. 223, 54 So.2d 272; Simmons v. State, supra.
V. The indictment was sufficient. Daniels v. State, supra; Rutherford v. State, 196 Miss. 321, 17 So.2d 803.
VI. Section 2514, Code of 1942, grants a right to severance if the application for it is made before arraignment in felony cases, except capital cases.
VII. The case presented a clear-cut issue of fact which could only be properly decided by a jury, and it was proper to give for the State the instruction complained of; and should there have been any error in the instruction, the very liberal instructions given for the appellants would have cured any defect therein and made the error harmless. Haney v. State, 199 Miss. 569, 24 So.2d 778.
(Hn 1) Appellants, Cecil Dueitt, Curtis Highsmith and Buck Alford, were jointly indicted for and convicted of grand larceny of tung nuts, in the Circuit Court of George County. They first contend that the trial court erred in overruling their motions for a severance. They were arraigned and pleaded not guilty over two weeks before their motions for severance were filed. Although appellants had a right to severance by applying for it before arraignment, Code of 1942, Section 2514, the granting of it is discretionary with the trial court where application is made after arraignment. Bolin v. State, 209 Miss. 866, 873, 48 So.2d 581 (1950). There is no showing that the circuit court erred in denying severance under the circumstances of this case.
(Hn 2) Alford signed a written confession, and in admitting it into evidence, the circuit court ruled that it was admissible only against the defendant Alford. The other defendants obtained an instruction to the jury that it could not consider any admissions in Alford's alleged confession in determining the guilt or innocence of the other defendants. This was clearly correct. The voluntary confession of a codefendant cannot be admitted against the other defendants when such confession was not made in their presence and assented to by them, even though the several defendants are being tried jointly. However, the confession of one such defendant can be admitted against that defendant, with instructions by the court to the jury that it is only admitted against that one defendant and is not to be considered as evidence against his codefendants. 20 Am. Jur., Evidence, Section 493; 22 C.J.S., Criminal Law, Section 820, p. 1441. In Davis v. State, 200 Miss. 514, 27 So.2d 769 (1946), the defendants were jointly indicted for grand larceny and were tried together. The confessions of each not made in the presence of the other but implicating the other were held to be admissible under the limitation that each applied only to the defendant who made it.
(Hn 3) We also think that the evidence was sufficient to support the conviction of all of the defendants. The corpus delicti, or the fact that a crime was committed, was amply shown by the testimony of the owner of the tung nuts, Mrs. Dorsett, and her farm manager, Shotts. Their testimony and that of G.L. Ray as to the purchase by him of tung nuts from appellant Alford's uncle a day or so after the theft occurred, was sufficient to convince the jury that the tung nuts which were sold to Ray were the stolen property. (Hn 4) And although this proof was not necessary, provided there was evidence to connect appellants with the theft, it served as significant circumstantial evidence of guilt.
Mrs. Jeanette Havard's testimony placed all three of the appellants near the scene of the theft on the night the jury could have concluded it occurred. It further warranted the jury in believing that Alford and Dueitt were in possession of Alford's truck that night near the little house where the tung nuts had been stored; that the truck was then loaded with heavy sacks similar to the sacks in which the tung nuts had been stored by the owner; that shortly before Mrs. Harvard saw these appellants and the truck near the scene, she had observed the same truck and it was empty; that Highsmith and Weathersby left Mrs. Havard in the passenger car for about fifteen or twenty minutes that night, near the scene of the theft, and when they returned to the car and drove off she saw Alford and Dueitt working on Alford's truck in the middle of the road near the scene of the theft; and that all three of the appellants had participated during the intervening period in stealing the tung nuts. Although Highsmith denied the theft, his testimony concerning his activities when he was with Mrs. Havard that night corroborates her version as to most of their movements up to the time they left the market in Lucedale.
The jury was properly instructed as to the State's burden of proof in a case based upon circumstantial evidence. The question of the appellants' guilt or innocence was for the jury.
Affirmed.
Lee, Kyle, Arrington and Gillespie, JJ., Concur.