Opinion
No. 32648.
May 10, 1937.
1. CRIMINAL LAW.
Evidence of another crime is admissible where it forms part of same transaction of which crime charged is constituted, and is so intimately connected therewith that one cannot be fully proven without proof of other.
2. CRIMINAL LAW.
In prosecution for larceny of two mules, evidence relating to larceny of mules other than those which were charged to have been stolen held admissible, where both the owners of the mules lived in same community, mules of both were stolen on the same night, and defendant had mules belonging to both owners sold by auctioneer on following day, since the two larcenies formed to a large extent one transaction and one could not be fully proven without the other.
3. CRIMINAL LAW.
Objections to admissibility of evidence must specifically point out the infirmity complained of.
4. CRIMINAL LAW.
In prosecution for larceny of mules, general objection to admission of testimony as to what person who was in charge of stockyards told witness with reference to defendant's selling the mules charged to have been stolen held insufficient to raise question as to whether evidence was hearsay.
5. CRIMINAL LAW.
In prosecution for larceny of mules, admission of testimony as to what person in charge of stockyards told witness with reference to defendant's selling mules held not prejudicial, where there was no substantial conflict as to defendant's delivery to stockyards of the mules which had been stolen, and having them sold.
APPEAL from the circuit court of Calhoun county. HON. T.H. McELROY, Judge.
Creekmore, Creekmore Capers, of Jackson, for appellant.
It was error to admit proof of crime of stealing Sturdivant's mules. The indictment in this case charges the defendant with the crime of stealing two mules belonging to Mrs. Hodge. On the trial of the case, over the objection of defendant, evidence was permitted to go to the jury that Mr. Sturdivant lost two mules and it was clearly error to permit Sturdivant to testify that Mr. Champenois told him his mules had been sold at Meridian by Mike Kimbrall. The record discloses that Sturdivant went to Meridian and described his mules to Champenois and that Champenois then told him that his mules had been sold there by the defendant. All this testimony was objected to but the jury was permitted to receive all of this prejudicial evidence.
The general rule is that on a prosecution for a particular crime evidence which in any manner shows, or tends to show, that accused has committed another crime wholly independent of that for which he was on trial, even though it is a crime of the same sort, is irrelevant and inadmissible.
16 C.J., sec. 1132; Baygents v. State, 110 So. 114; Willoughby v. State, 154 Miss. 653.
In addition to the incompetency of the evidence for the reasons already mentioned, the testimony of Mr. Sturdivant as to what Champenois told him was inadmissible because it was hearsay evidence.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
It is argued here that the admission of the testimony over appellant's objection was error because such testimony tended to show appellant's guilt of a separate and distinct crime. By reference to the pages of the record it will be seen that all of these objections are mere general objection with two exceptions, — one being an objection to a question because it was leading and another on the ground of repetition. The objection that such testimony tended to show another crime seems not to have been made in the court below. To be available here an objection must be specific and point out the alleged infirmity of the evidence.
Boatwright v. State, 43 Miss. 676, 109 So. 710; Jackson v. State, 163 Miss. 235, 140 So. 683.
On the other hand, while it is a general rule that the state is confined to proof of a single crime on an indictment, nevertheless, there are certain well defined exceptions to this rule. One of these exceptions is where such other offense is part and parcel of the one being tried and the one cannot be fully and completely shown without showing the other.
Here the original takings were separate and distinct, but, as said in Devine v. State, 132 Miss. 492, 96 So. 696: "larceny is a continuous offense and is being committed every moment of the time during which the thief deprives the owner of the stolen property of its possession."
The State will concede that the testimony of Sturdivant as to what Champenois told him had become of the mules and who had sold them was incompetent as hearsay. However, there is other testimony in the record which shows that Kimbrall did sell these mules, and such error, if any, would not cause particular prejudice to the defendant's case and should not work a reversal, even though it be conceded to be error.
Appellant was jointly indicted with Valley Dorrough and E.O. Wade in the circuit court of Calhoun county for the larceny of two mules. Appellant was tried separately, convicted, and sentenced to the penitentiary for a term of four years, and from that judgment he prosecutes this appeal.
The case made by the State was that the mules belonged to Mrs. H.L. Hodges, who resided in Calhoun county. The mules were in her pasture near her home. They were stolen on the night of April 11, 1934, and were missed the next morning. Appellant owned a truck of the type generally used to transport livestock. He was seen with the truck in the vicinity on the night the mules were stolen. On the next day appellant appeared at the Meridian stockyards with these two mules and two others belonging to Oscar Sturdivant. Sturdivant resided in the same community as Mrs. Hodges, and his mules were stolen on the same night. Appellant, claiming to be the owner of the mules, had the auctioneer in the stockyards to sell them.
The defense was an alibi on the night the mules were stolen, and that on the next day he bought the mules from an unknown negro and took them to the stockyards in Meridian and had them sold.
In proving the case against the appellant, the State proved the larceny of Sturdivant's mules. This evidence was admitted over appellant's objection. That action of the court is urged as a ground for the reversal of the judgment. Appellant invokes the general rule that the State's case could not be aided by proof of another crime than the one for which he was tried. There are exceptions to the general rule; one is that evidence of another crime is admissible where it forms part of the same transaction of which the crime charged is constituted and is so intimately connected therewith that one cannot be fully proven without proof, at least to some extent, of the other. Keel v. State, 133 Miss. 160, 97 So. 521; Bond v. State, 128 Miss. 792, 91 So. 461; Collier v. State, 106 Miss. 613, 64 So. 373; King v. State, 66 Miss. 502, 6 So. 188. This case comes within that exception. The two larcenies formed, to a very large extent, one transaction. One could not be fully proven without proving the other.
Over appellant's objection, Sturdivant was permitted to testify as to what Champenois, who was in charge of the stockyards, told him with reference to appellant's selling the mules. The objection was general, not specific. It is argued that it was not admissible because hearsay. This contention is without merit under the rule that the admissibility of evidence can be predicated only on an objection thereto specifically pointing out the infirmity complained of. Jackson v. State, 163 Miss. 235, 140 So. 683. Furthermore, the admission of the evidence was without harm to appellant. There was no substantial conflict in the evidence as to appellant delivering the four mules to the stockyards in Meridian and having them sold.
Affirmed.