Opinion
No. 27463.
December 3, 1928.
1. CRIMINAL LAW. Testimony that defendant pulled knife, when questioned by officers finding stolen automobile in his possession, held admissible to show scienter.
In prosecution for larceny of an automobile, testimony to effect that defendant pulled a knife from his pocket, when questioned by officers finding automobile in his possession, as if he intended to resist arrest, held admissible as proof of scienter or guilty knowledge on part of defendant.
2. CRIMINAL LAW. Separate and distinct crime can be proved as proof of scienter.
Crime separate and distinct from that for which defendant is being tried cannot be proved on the trial, except that proof of separate offense is competent where it is necessary to prove scienter or guilty knowledge of defendant.
APPEAL from circuit court of Hinds county, First district, HON. W.H. POTTER, Judge.
Franklin, Easterling Fox, for appellant.
The court erred in admitting the evidence that at the time of the arrest appellant drew a long dirk knife on the arresting officer and prosecutors. The witness Rogers was allowed to testify over the objection of the appellant as to what the appellant was doing at the time that he was arrested. Before any of this testimony was received the appellant admitted that the Ford was in his possession. The witness Rogers, over appellant's objection, and after admission of the possession of the car, testified that when appellant was arrested "he jumped up, and when he comes up, he comes out with a knife or dirk about that long — it looked like that long to me (indicating), and Barrett was about three feet from him, and he slaps a forty-five on him and says: `Drop it, or I will shoot you in two,' and the boy put his knife in his pocket, and we brought him in."
"Q. Was it a knife or a dirk? A. A dirk — wrapped around the handle with tape."
The proper place for testimony such as this was under the charge of assault and battery with intent to kill which was at that time on the docket against this appellant, but the astute district attorney saw fit to shoot a blanket load and introduce on a charge of larceny, testimony which should properly have been withheld until the assault charge was reached. It has long been the ruling in our courts that evidence of the commission of other crimes are not admissible on the trial of another where the two charges are in no way connected. Magee v. State (Miss.), 22 So. 890.
Rufus Creekmore, Assistant Attorney-General, for the the state.
Counsel argue that the court was in error in permitting the state to show what the appellant did at the time he was arrested. The argument is made that when the appellant pulled out his knife that this constituted a separate and distinct offense from that for which he was being tried and that, for this reason, evidence of this separate offense should not be admitted on the trial of this cause. It will be observed from the record that no objection was made to this question asked by the district attorney, which elicited the testimony relative to the drawing of the knife by the defendant, but the objection was made only after the witness had testified fully to the facts relative to the incident. After the testimony had gone to the jury, an objection by the defendant could avail nothing. But if he desired to receive the same benefit which an objection properly made would have given him, he should have moved to exclude the testimony. For reasons best known to himself, he did not see fit to do this. So for this reason, if for no other, the contention of counsel on this proposition must fail.
It is true that as a general rule evidence of crimes other than that for which the appellant is being tried, should not be admitted by the court, but it is also true that there are certain well-defined exceptions to this general rule. King v. State, 66 Miss. 502, 6 So. 189; Foster v. State, 70 Miss. 756; Raines v. State, 81 Miss. 489; Collier v. State, 106 Miss. 613, 64 So. 373; Keel v. State, 133 Miss. 160, 97 So. 521.
In the case at bar, the action of the defendant in drawing his knife and thus attempting to resist arrest when the officer approached, was competent for the purpose of showing his guilty knowledge of the crime and for the purpose of showing that he was exercising acts of possession and control over the car, itself. For these reasons, the court committed no error in admitting this testimony.
The appellant was convicted of grand larceny and sentenced to the state penitentiary for one year, from which conviction and sentence he appeals here.
The property stolen was a Ford coupe owned by the Hines Motor Company. After having been missed from its storage room for some time, the car was finally found on the premises, and in the possession of the appellant, a negro employee of the Hines Motor Company; and it showed evidence of hard use. The appellant did not deny taking the car, but claimed that he had the permission of the owner to take it out for the purpose of painting it, which statement was denied.
Over the objection of appellant, the state proved that upon the arrival of the officers at appellant's home and finding the car in his possession, they began to question him; whereupon appellant pulled from his pocket a long dirk or knife as if he intended resisting arrest. One of the officers forced him to put the knife back into his pocket. Appellant insists that this was proof of the commission of a separate crime than that for which he was being tried, and for that reason the evidence was incompetent and the introduction thereof reversible error.
It is the general rule that crimes separate and distinct from that for which defendant is being tried cannot be proved on the trial, but one of the exceptions to this rule is that proof of a separate offense is competent where it is necessary to prove scienter, or guilty knowledge of the defendant; and the testimony, we think, was competent under this well-recognized exception. Raines v. State, 81 Miss. 489, 33 So. 19.
The case will therefore be affirmed.
Affirmed.