Summary
In Creed v. State, 179 Miss. 700, 705, 176 So. 596, 597, we said: "The rule is well settled that, while a conviction may be sustained on the uncorroborated testimony of an accomplice, it is equally well settled that such a conviction should not be upheld where such testimony is improbable, self-contradictory, and unreasonable on its face, and especially where it is impeached by unimpeached witnesses.
Summary of this case from Jones v. StateOpinion
No. 32775.
November 8, 1937.
1. CRIMINAL LAW.
While a conviction may be sustained on the uncorroborated testimony of an accomplice, such a conviction should not be upheld where the testimony is improbable, self-contradictory, and unreasonable on its face, especially when impeached by unimpeached witnesses.
2. CRIMINAL LAW.
Uncorroborated testimony of a self-confessed accomplice, in conflict with prior statements, and self-contradictory and unbelievable, held insufficient to support a conviction for grand larceny of hogs, where the witness was thoroughly impeached and discredited by unimpeached witnesses.
APPEAL from the circuit court of Kemper county. HON. JOHN C. STENNIS, Judge.
SPINKS McCully, of DeKalb, for appellant.
Before there can be a conviction for larceny, it must be shown beyond all reasonable doubt that some property belonging to another was criminally taken from the possession of the owner and into the possession of the alleged thief and carried away by him.
At the outset, we observe that it is shown beyond question that the community where the hogs were at large and where they were alleged to have been killed by appellant and taken away by him and others is a free range. Not only is this true, but it is further shown that this free range is of large extent. Except for the testimony of the witness Fred Rigdon that the hogs alleged to have been killed were said by the appellant to have been the property of C.C. Conathan, we would not be able to show that the hogs in fact were ever killed by anyone, or that they were not still alive.
Bowman v. State, 73 Miss. 787; Dillard v. State, 73 So. 799.
We submit that the testimony of the witness Rigdon is the only testimony to establish the fact that any hogs were killed; that the appellant killed them; and that they belonged to C.C. Conathan; and the witness contradicts himself while on direct examination. One moment he says that he might have testified that Jack Creed said the hogs belonged to Conathan, then in another breath he had just testified that if Jack said the hogs belonged to Mr. Conathan, he, the witness, said: "I disremember;" and just prior thereto he says that Jack said after he had killed the hogs he didn't know who they belonged to, and then after careful coaching on the part of the District Attorney, he qualifies his positive testimony that Jack said he did not know whom the hogs belonged to by saying Jack might have said they belonged to Conathan, then in the very next breath he says that Jack said they belonged to Clarence Conathan. Then while under cross-examination the witness testified positively again that, although he five minutes prior thereto didn't know what Jack said about the ownership of the hogs, yet at that moment he does know what he said, and now says positively that Jack said the hogs belonged to Conathan.
Two of the elements of larceny are the stealing of property of another and the ownership of that property. Each of these elements, as far as the record is concerned, depends wholly on the testimony of the witness Rigdon. His testimony as to all of these elements is self-contradictory, and, we submit, is unworthy of belief. It is unworthy of belief when divorced from other evidence showing he had made other contradictory statements, or other evidence showing that he had a bad reputation for truth and veracity, and was unworthy of belief.
Day v. State, 7 So. 626; Dodd v. State, 88 Miss. 50, 40 So. 545; Dunk v. State, 84 Miss. 454, 36 So. 609.
Under our statutes, co-defendants in a felony indictment may ask for a severance as a matter of right before arraignment in non-capital cases, and after arraignment in capital cases. The record being silent on the matter of motion for severance, it is properly concluded that it was not asked for, and we are not trying to put the court in error because there was no severance. On the other hand, we ought not to be precluded from having this court review the refusal of the trial court to grant a directed verdict as to the Boyds simply because they did not ask for a severance. Our theory that it is the duty of the court to take away from the juries all issues involved about which there is no conflict is supported by the following cases:
Reddick v. State, 72 Miss. 1008, 16 So. 490; Davis v. State, 146 So. 598; Davenport v. State, 144 Miss. 273, 109 So. 707.
Our court has sustained convictions resting on the testimony of an accomplice. However, this court has definitely and certainly committed itself to reverse causes resting on the uncorroborated testimony of an accomplice, where such testimony is self-contradictory, where the witness is shown by unimpeached testimony to be unworthy of belief and where the testimony of the witness is so unreasonable as to carry its own refutation.
Rutledge v. State, 157 So. 907; White v. State, 146 Miss. 815, 112 So. 27; Hunter v. State, 102 So. 282; Abele v. State, 103 So. 370; Wright v. State, 130 Miss. 603, 94 So. 716; Conway v. State, 171 So. 16; Day v. State, 7 So. 327; Wade v. State, 167 So. 617.
W.D. Conn, Jr., Assistant Attorney General, for the State.
Appellant admits the rule of law which permits a conviction to stand on the uncorroborated testimony of an accomplice, but insists that the facts of the case bring it within the exceptions to that rule which this court has heretofore laid down, namely that such testimony must not be unreasonable, improper or self-contradictory on its face. These cases, generally speaking, are Boutwell v. State, 165 Miss. 16, 143 So. 479; Matthews v. State, 148 Miss. 696, 114 So. 816; Rutledge v. State, 157 So. 907; Carter v. State, 166 So. 377.
On the state of this record and under the decisions above referred to, the state submits the matter to the court as to whether or not this record presents a situation that would call for the application of the doctrine of those cases.
Argued orally by L.P. Spinks, for appellant, and by W.D. Conn, Jr., for the state.
The appellant, Jack Creed, and his codefendants Bill and B.M. (Beriah) Boyd were jointly indicted and tried in the circuit court of Kemper county for the grand larceny of four hogs, shown to be of the value of $50, and alleged to be the property of C.C. Conathan. The codefendants were acquitted by the jury, but appellant was convicted and sentenced to serve a term of eighteen months in the state penitentiary.
The conviction of the appellant was obtained upon the uncorroborated testimony of an alleged self-confessed accomplice. The only proof that four hogs belonging to Conathan were in fact stolen was that they quit coming up to be fed late in the afternoons about the latter part of November, 1935, taken in connection with the testimony of the alleged accomplice to the effect that he and appellant drove four hogs of like description out of Sucarnochee swamp a distance of nearly two miles one Sunday morning, which he finally fixed as the last Sunday in December of that year. This witness did, however, testify that he "may have told" the grand jury that the appellant told him at the time the hogs were killed that they belonged to C.C. Conathan, and finally under a cross-examination by the district attorney, which was permitted by the court to be conducted for the purpose of laying a predicate for contradiction of this state witness, that appellant did in fact tell him that the hogs belonged to Conathan, notwithstanding he had already testified that appellant told him that he did not know who they belonged to, and that he "disremembered" whether appellant had ever said that they belonged to Conathan.
The witness further testified that appellant killed all four hogs at a time when they were standing in the woods, free from any restraint, by shooting each one of them with No. 6 squirrel shot, using a single barrel shotgun at a distance of about fourteen steps away, the load striking each hog in the center of the head just below the eyes, without causing any commotion among them while they remained in a huddle awaiting their respective turns to receive the fatal shot.
The rule is well settled that, while a conviction may be sustained on the uncorroborated testimony of an accomplice, it is equally well settled that such a conviction should not be upheld where such testimony is improbable, self-contradictory, and unreasonable on its face, and especially where it is impeached by unimpeached witnesses. Day v. State (Miss.), 7 So. 326; 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; Matthews v. State, 148 Miss. 696, 114 So. 816; Boutwell v. State, 165 Miss. 16, 143 So. 479; Harmon v. State, 167 Miss. 527, 142 So. 473; Rutledge v. State, 171 Miss. 311, 157 So. 907; Carter v. State (Miss.), 166 So. 377.
In the present case the testimony of the witness on the trial was not only in conflict with his statements admittedly made prior thereto, but is self-contradictory and unbelievable, as given at the trial, and he is thoroughly impeached and discredited by unimpeached witnesses, among whom was his uncle, who testified as to his bad reputation for truth and veracity, and that he could not believe him on oath.
It was said in the case of Conway v. State, 177 Miss. 461, 171 So. 16, 17, that: "It is rare that a trial, or an appellate, court is justified in setting up its judgment against that of the jury on an issue of fact, nevertheless it should do so in a proper case, and we think this is one of that character."
We think that the language used in the Conway Case, supra, is applicable to the situation in the case at bar. We decline to uphold the conviction based on the uncorroborated testimony of this self-confessed accomplice under the circumstances. The peremptory instruction requested by the appellant should have been given.
Reversed, and judgment here for the appellant.