Summary
In Mills v. State, 231 Miss. 641, 97 So.2d 386 (1957), the defendant was convicted of grand larceny and on appeal raised the question of variance between the indictment and the proof as to ownership of the property.
Summary of this case from Pieratt v. StateOpinion
No. 40586.
October 14, 1957.
1. Larceny — evidence — sustained conviction for grand larceny of cattle.
Evidence sustained conviction for crime of grand larceny of cattle.
2. Larceny — question as to whether partnership owned cattle for jury.
In prosecution resulting in conviction of grand larceny for theft of cattle, question as to whether partnership owned cattle was for jury.
3. Indictment — variance — whether cattle were owned by corporation or partnership — amendable defect.
If there was a variance between indictment and proof as to whether cattle, which were subject of grand larceny prosecution, were owned by a corporation or a partnership, variance was an amendable defect. Sec. 2532, Code 1942.
4. Criminal law — mistrial — improper argument of County Attorney — did not justify grant of motion for mistrial.
In such case, where County Attorney had argued that State had made out a perfect case and if State had not, jury wouldn't be sitting there and that Court would have taken case from you, and where objection was properly sustained to argument and jury directed to disregard what was said in that respect, argument of County Attorney did not justify grant of motion for mistrial.
5. Witnesses — cross-examination of defendant — relevant for impeachment purposes — did not constitute prejudicial error.
Cross-examination of defendant concerning the truthfulness of statements in a typewritten statement, which apparently had been given by defendant after her arrest, was relevant for impeachment purposes on issue of whether defendant had been twice or three times to cattle loading ramp, and even if error, cross-examination did not constitute prejudicial error.
6. Larceny — where coindictee mere caretaker — crime of taking cattle was grand larceny not embezzlement.
Coindictee, who was indicted with defendant for crime of grand larceny of certain cattle, and who was manager and employee of partnership, from whom cattle had been taken, and who could make sales for partnership only by authorization from partners, was, in fact, a mere caretaker, with custody of the property, subject to supervision of partners, and therefore crime of taking cattle was grand larceny, not embezzlement.
Headnotes as approved by Arrington, J.
APPEAL from the Circuit Court of Tunica County; E.H. GREEN, Judge.
Stovall Lowrey, Clarksdale; Jack N. Tucker, Tunica, for appellant.
I. In larceny, ownership must be proved, as laid, beyond every reasonable doubt; and the Lower Court erred in overruling appellant's motions for directed verdict and for peremptory instruction as the only evidence of ownership presented was to the effect that "the corporation" owned such cattle as specifically described in the indictment, and, particularly, in overruling appellant's motion for a new trial whereas such an essential element of the alleged crime charged is in doubt. Hughes v. State, 74 Miss. 368, 20 So. 836; Johnson v. State, 186 Miss. 405, 191 So. 127; McDowell v. State, 68 Miss. 348, 8 So. 508; McGaha v. State, 173 Miss. 829, 163 So. 442; Page v. State, 160 Miss. 300, 133 So. 216; Amend. XIV, U.S. Constitution; Art. III Sec. 14, Constitution 1890; Sec. 2240, Code 1942; 20 Am. Jur., Evidence, Sec. 149 p. 153.
II. The Lower Court erred in overruling the appellant's motion for a mistrial at the request of the appellant following highly prejudicial statements of counsel for the State in his opening argument to the jury, the Court having first properly sustained appellant's objection to such highly prejudicial statements. Allen v. State, 148 Miss. 229, 114 So. 352; Brashier v. State, 197 Miss. 237, 20 So.2d 65, 157 A.L.R. 311; Minor v. State, 101 Miss. 107, 57 So. 548; Overing v. Skrmetta, 218 Miss. 648, 67 So.2d 606; Ransom v. State, 149 Miss. 262, 115 So. 208; Windham v. State, 91 Miss. 845, 45 So. 861; Art. III Sec. 26, Constitution 1890; Sec. 1530, Code 1942; 53 Am. Jur., Secs. 492, 507 pp. 397, 410; Wingo, Mississippi Criminal Law and Procedure, Criminal Evidence, Sec. 172 p. 57.
III. The Lower Court erred in permitting counsel for the State, while actually engaged in cross-examination of the appellant, to read a part of a prepared typewritten document and to exhibit and display same before the jury, without prior and proper authentication, previously laid predicate or preliminary hearing in the absence of jury. Church v. State, 179 Miss. 440, 176 So. 162; Cody v. State, 167 Miss. 150, 148 So. 627; Cofer v. State, 158 Miss. 493, 130 So. 511; Collier v. State, 106 Miss. 613, 64 So. 373; Coon v. State, 21 Miss. 246, 13 Sm. M. 250; Ford v. Byrd, 183 Miss. 846, 184 So. 443; Gross v. State, 191 Miss. 383, 2 So.2d 818; Harrison v. State, 168 Miss. 699, 152 So. 494; Holmes v. State, 211 Miss. 436, 51 So.2d 755; Jeffries v. State, 77 Miss. 757, 28 So. 948; Warren v. State, 174 Miss. 63, 164 So. 234; Williams v. State, 12 So.2d 156; Art. III Sec. 26, Constitution 1890; 58 Am. Jur., Witnesses, Sec. 622 p. 344.
IV. The Lower Court erred in overruling the appellant's motions for directed verdict and request for peremptory instruction of not guilty, both at the close of the testimony offered by the State and at the close of the entire testimony, because the evidence in the case conclusively proved that if any crime had been committed by the principal defendant, C.W. Webb, or by this defendant, either as a principal or an accomplice, that such crime would have been embezzlement rather than larceny as charged. Beatty v. State, 61 Miss. 18; Butler v. State, 151 Miss. 576, 118 So. 412; Sec. 1995, Code 1942; 32 Am. Jur., Larceny, Secs. 60, 145 pp. 967, 1058.
V. The Lower Court erred in overruling appellant's motion for directed verdict, peremptory instruction and new trial because there was variance between the indictment and the proof in the case at bar. Card v. State, 182 Miss. 229, 181 So. 524; Johnson v. State, supra; Oliver v. State, 5 How. (6 Miss.) 14, 1 Mor. St. Cas. 157; Prince v. State, 141 Miss. 667, 107 So. 280; Art. III Sec. 22, Constitution 1890; Sec. 1762, Code 1906; Secs. 2451, 2625, Code 1942.
VI. The Lower Court erred in permitting the conviction to stand on uncorroborated testimony of accomplices. Brown v. State, 98 Miss. 786, 54 So. 305; Cole v. State, 217 Miss. 779, 65 So.2d 262; Lambert v. State, 199 Miss. 790, 25 So.2d 477; Robinson v. Haydel, 177 Miss. 233, 171 So. 7; Turner v. State, 168 Miss. 452, 151 So. 721; 20 Am. Jur., Evidence Secs. 187, 188 pp. 192, 193.
VII. The Lower Court erred in allowing the verdict to stand because the same was against, and contrary to, the weight of the evidence.
J.R. Griffin, Asst. Atty. Gen., Jackson, for appellee.
I. The proof supports the allegation of the indictment wherein it is said that the property stolen was the property of a partnership. Horn v. State, 165 Miss. 169, 147 So. 311; Jackson v. State, 189 Miss. 672, 198 So. 625; Wiggins v. State, 215 Miss. 441, 61 So.2d 145; Sec. 2532, Code 1942.
II. The Court did not err in overruling the appellant's motion for a mistrial at the request of appellant's counsel following alleged prejudicial statements by the prosecuting attorney. Harris v. State, 207 Miss. 241, 42 So.2d 183; Herrin v. State, 201 Miss. 595, 29 So.2d 452; Huggins v. State, 209 Miss. 552, 47 So.2d 852; Pitts v. State, 211 Miss. 268, 51 So.2d 452; Shaw v. State, 188 Miss. 549, 195 So. 581.
III. The Court did not err in permitting the district attorney during cross-examination to read from a prepared statement. Brooks v. State, 209 Miss. 150, 46 So.2d 94; Jones v. State, 180 Miss. 210, 177 So. 210; Roney v. State, 167 Miss. 827, 150 So. 774; Whitt v. State, 210 Miss. 817, 50 So.2d 385; Vol. III, Wharton's Criminal Law, Sec. 1325 p. 2202.
IV. The evidence in this case makes out the crime of larceny and not that of embezzlement. Hemphill v. State, 222 Miss. 516, 76 So.2d 512; 32 Am. Jur., Larceny, Sec. 590 p. 964.
V. The verdict of the jury is amply supported by the evidence. Pegram v. State, 228 Miss. 860, 89 So.2d 846; Sec. 2451, Code 1942.
Appellant Alice Mills was convicted in the Circuit Court of Tunica County of grand larceny, for the theft of certain cattle, the property of Abbay-Leatherman, a partnership.
(Hn 1) The trial court was correct in refusing a requested peremptory instruction for defendant, and in overruling her motion for a new trial. The evidence was ample to sustain the conviction. Her co-indictee, C.W. Webb, an accomplice, testified for the State to establish her part in the crime. Two other accomplices, Muskin and Davis, also testified for the State as to certain parts of the offense. G.W. Dodson testified that around the time in question Webb brought some cattle to his place at night, offering to sell them to him; that he did not see them that night, but upon examining them the next day he discovered that they had the brand "A-L", and he refused to buy them; and that Miss Mills and two negroes came back to pick them up. Appellant denied knowledge of and participation in the crime. The State's evidence warranted the jury in finding appellant guilty.
(Hn 2) She also contends that the evidence does not support the charge that the cattle were the property of the partnership, and that her motions for a directed verdict and for a new trial should have been granted because of the State's failure to prove an essential element of the crime. The indictment charged that the cattle were the personal property of five partners, naming them, doing business as Abbay-Leatherman, a partnership. One of the partners described the location of the land owned by the partnership, and said that it owned cattle on the place at the time the theft occurred; and that C.W. Webb was an employee of the partnership. The only time any reference to a corporation occurred in the testimony is Webb's reply to a question concerning ownership of the cattle, when he said, "The corporation of Abbay-Leatherman." On the motion for a new trial, appellant introduced a copy of a charter of incorporation of "Abbay Leatherman, Inc.", dated 1948. Three of the four incorporators are also partners, but there are two partners whose names are not reflected in the charter. Moreover, there is no proof that the corporation owned the property in question, or that it ever became active, or that it had not been dissolved. The State's sole instruction and four of the defendant's instructions clearly submitted to the jury the issue of whether the property was owned by the partnership of Abbay-Leatherman. Considering the testimony of W.A. Leatherman and C.W. Webb, we think it was a question for the jury as to whether the partnership owned these cattle. (Hn 3) Moreover, if a variance between the indictment and proof existed, it was an amendable defect. Code of 1942, Sec. 2532; Horn v. State, 165 Miss. 169, 147 So. 311 (1933). And here it was not properly brought to the attention of the trial court before the verdict. Wiggins v. State, 215 Miss. 441, 61 So.2d 145 (1952).
(Hn 4) There was no reversible error in refusing defendant's motion for a mistrial. The county attorney argued: "The State made out a perfect case. If we had not. . . . . . you wouldn't be sitting there; the Court would have taken the case from you." This was primarily and obviously a statement of opinion by the county attorney that the State had made out a strong case, although it was improper to indicate that otherwise the court would not have submitted the matter to the jury. However, the trial court promptly sustained defendant's objection to the argument, and directed the jury to disregard what was said in that respect. Since the verdict is amply supported by the evidence and no prejudice appears, it was not error to overrule appellant's motion for a mistrial. Pitts v. State, 211 Miss. 268, 51 So.2d 448 (1951).
(Hn 5) In the cross-examination of defendant, the district attorney, over objections, read from a typewritten statement which apparently had been given by defendant after her arrest, and interrogated her concerning the truthfulness of the statements in it. There was no reversible error in overruling the objections to this cross-examination. Some of it was relevant for impeachment purposes on the issue of whether defendant had been twice or three times to the cattle-loading ramp. Defendant's replies to the cross-examination otherwise were to the effect that the statements in the document were correct. They dealt largely with irrelevant matters, but if error, they were not prejudicial when considered in the light of the permissible scope of cross-examination of an accused.
(Hn 6) Nor is there any merit in the argument that the crime, if any, was embezzlement by C.W. Webb, cattle manager for the partnership, as contrasted with grand larceny. Leatherman testified that Webb was a cattle manager and employee of the partnership, but that he could make sales for it only by authorization from one of the partners. Webb was in fact a mere caretaker, with custody of the property, but subject to supervision and authorization to sell only by one of the partners. The offense was clearly grand larceny. Hemphill v. State, 222 Miss. 516, 76 So.2d 512 (1954); 32 Am. Jur., Larceny, Sec. 590.
Affirmed.
Roberds, P.J., and Lee, Ethridge and Gillespie, JJ., concur.