Opinion
No. 33334.
November 7, 1938.
1. CRIMINAL LAW.
In prosecution for receiving two stolen cows, knowing them to have been recently stolen, where accused was also indicted for receiving one stolen cow on another occasion from the same thief under similar circumstances for a wholly inadequate price, evidence pertaining to the reception of the one cow was competent as bearing on the element of guilty knowledge in the reception of the two cows.
2. RECEIVING STOLEN GOODS.
Evidence sustained conviction of receiving two stolen cows, knowing them to have been recently stolen.
APPEAL from the circuit court of Tate county; HON. JOHN M. KUYKENDALL, Judge.
J.F. Dean, of Senatobia, for appellant.
While a conviction may be had on the unsupported evidence of an accomplice, this court has often reversed because of the unsatisfactory character of that evidence. The evidence of the witness on its face is unreasonable.
There were two indictments against appellant, one for buying one stolen cow and one for buying at one time two stolen cows, describing them. He was tried for buying the two cows or at least was supposed to be tried for buying the two, yet after the introduction of all the evidence possible as to all three cows to further confuse the jury, the state had the court charge the jury that if he knowingly bought one of the stolen cows, described in the indictment charging two cows, omitting the other, then the jury would find him guilty.
What could have been the purpose of the able and learned district attorney to select one cow from the indictment which described two cows, if not to confuse the jury? He proved the receiving of three cows and elects to restrict the issue to one cow described in an indictment alleging the receiving of two cows described therein upon which he was supposed to be on trial.
Is it the law in Mississippi that a man can be placed upon trial upon one charge and a dozen other trumped up charges against which he may not then be able to defend himself be proved against him in every detail as fully as in the charge upon which he was originally arraigned?
When, at the next ensuing term of our circuit court in Tate County in next month, appellant is placed on trial for receiving the first stolen cow, could there be any difference in the record except the substitution of a different indictment? He has not presumably been tried upon that indictment. It is for a different offense at a different time. He cannot plead former jeopardy, yet he has been tried upon that indictment as fully as upon the one now before this court. The glaring injustice of the situation is appalling and that our courts could and did allow such a condition to arise is disheartening. One charged with crime, even if guilty, is entitled to a square deal in our courts and should be accorded some consideration and have some rights respected, when placed upon trial for the crime charged to which he plead not guilty.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
This court has long been committed to the rule that the testimony of an accomplice is sufficient, in and of itself, though uncorroborated, to sustain a conviction, provided such testimony is not improbable, unreasonable, or self contradictory on its face.
Duke v. State, 175 Miss. 743, 166 So. 919; Boutwell v. State, 165 Miss. 16, 143 So. 479; Gates v. State, 160 Miss. 479, 135 So. 189.
We submit that this testimony of the accomplice, in and of itself, is sufficient to sustain this conviction. It is not of such character as that this court could say that it is improbable, unreasonable and self contradictory on its face. It was for the jury, under proper instructions of the court, to give to this testimony such weight as it cared to.
In connection with proof of the larceny of the two head of cattle involved in this trial, it was shown that the witness, Adams, had stolen a cow from another person and had sold it to the appellant. The appellant objected on the ground that this was a separate and independent offense and evidence thereof was not admissible on this trial.
In Raines v. State, 81 Miss. 489, 33 So. 19, it was noted that in a case of this kind there is an exception to the general rule. It was said there: "Evidence of the conduct of the accused on other occasions, though disconnected from the offense on trial, is frequently admitted in cases of conspiracy, uttering forged instruments and counterfeit coin, and receiving stolen goods — not, however, for the purpose of inducing the jury to believe the accused guilty of the crime for which he is on trial, because he had committed another similar crime, but for the purpose of excluding him from setting up the defense that he did the act innocently and without knowledge of its guilt. In such cases evidence of other similar offenses is admissible, because the act for which the defendant is being tried is mostly of an equivocal kind, from which malus animus is not a necessary presumption; and such evidence is allowed in order to show a criminal intention."
This doctrine, as laid down in the Raines case, was approved in Collier v. State, 106 Miss. 613, 64 So. 373. This exception is likewise noted in the case of Dabney v. State, 82 Miss. 252, 33 So. 973.
Stift v. State, 152 Miss. 246, 119 So. 178; King v. State, 123 Miss. 532, 86 So. 339.
We submit, under the authorities above set out and referred to, that the court committed no error in allowing proof of this alleged separate and independent offense.
Joe Golden was indicted, under two separate bills, for receiving one stolen cow on one occasion and two stolen cows on another occasion, knowing, or having good reason to believe, them to have been recently stolen. He was tried and convicted under the indictment charging that he so received the two cows. Upon the trial the State introduced evidence of the crime alleged in the indictment as to the one cow as well as the crime charged as to the two cows, upon the theory that since all of the cows were purchased by him from the same self-confessed thief, under similar circumstances, and for a wholly inadequate price, the facts of the first instance had a bearing on, and tended to establish, the element of guilty knowledge in the second instance. The admission of this evidence is assigned as error. Under the rule announced in the cases of Raines v. State, 81 Miss. 489, 33 So. 19; Dabney v. State, 82 Miss. 252, 33 So. 973; and Collier v. State, 106 Miss. 613, 64 So. 373, we think the evidence was competent, for the testimony on behalf of the State showed the cow mentioned in the first indictment was worth more than $25 and had been purchased by the appellant, about a week before the purchase of the other two, for the sum of $10 at a time when she was tied out in "a little skirt of woods" or "thicket;" that he purchased the other two under similar circumstances, and for $11 each, after which he sold the three of them, almost immediately, for the sum of $71.
The testimony on which the conviction was obtained does not come within the condemnation of the rule announced as to the statements of a self-confessed accomplice in the case of Creed v. State, 179 Miss. 700, 176 So. 596, and other cases therein cited, but rather the conviction may be sustained under the decisions of Matthews v. State, 148 Miss. 696, 114 So. 816; Boutwell v. State, 165 Miss. 16, 143 So. 479; and Duke v. State, 175 Miss. 743, 166 So. 919.
We are of the opinion that no reversible error was committed on the trial in the court below.
Affirmed.