Opinion
No. 36059.
March 11, 1946.
1. LARCENY.
In prosecution for theft of automobile tire, evidence was insufficient for jury, in view of circumstances impeaching credibility of state's witness.
2. CRIMINAL LAW.
Although conviction may be sustained on uncorroborated testimony of a witness who is incriminated by facts in case, such conviction should not be upheld where testimony is improbable, self-contradictory and unreasonable on its face, especially when impeached by unimpeached witnesses.
APPEAL from the circuit court of Humphreys county, HON. S.F. DAVIS, Judge.
H.F. Jones, of Belzoni, for appellant.
The court will take judicial notice of the fact that World War II was ended in the month of September, 1945, and that the law under which the appellant was convicted in July, 1945, became null and without force.
Laws of 1942, Ch. 205.
Section 2608 of the Code of 1942 does not apply to the case here for the reason that the act creating the law here made the provision therein that "the act should only have force and effect only so long as the United States of America is engaged in World War II." Therefore the entire law under which the indictment here was found, prosecuted and judgment and sentence rendered ceases to exist, and the punishment prescribed by the act passes away.
After the repeal of a law no punishment may be inflicted for a violation under the statute, the offense having been committed while the statute was in operation, unless provision be made taking care of such a contingency. The same would be the case if the law simply under its terms ceased.
Teague v. State, 39 Miss. 516.
Penalties incurred under a statute must be collected before, and cannot be collected after, the repeal of the statute.
Wheeler v. State, 64 Miss. 462, 1 So. 632.
The court erred in permitting an amendment to the indictment, wherein the court authorized the indictment to be amended by striking therefrom the misdemeanor charged and prosecuting the felony under Chapter 205, Laws of 1942, and ignoring the clause in the demurrer that the indictment should have stated that World War II was still in progress and the United States of America was engaged in the war. It was a part of the very act itself that the United States be then engaged in World War II. Time was of the highest essence of the offense charged. The indictment should have charged in the language of the statute all that made it a law, and it was quite essential that the indictment should have alleged that the said United States of America was engaged then in World War II. It has been held many times that time as to the commission of an offense was not controlling or important, but not so when an act makes its very existence depend upon some period of time. Without a statement in the indictment alleging the continued existence of the law under the language of the act does not comply with Section 26 of the Constitution.
Kelly v. State (Ala.), 55 So. 141.
The indictment should have been in the language of the statute and should have negatived the fact that it, under its very terms, ceased to exist or operate.
State v. Hinton, 139 Miss. 513, 104 So. 354.
Penal statutes must be strictly construed in favor of the defendant, and a conviction cannot be sustained unless the offense comes within the letter of the statute. In the indictment either the same or equivalent words of the statute should be used.
State v. Traylor, 100 Miss. 544, 56 So. 521; State v. Southern Ry. Co. in Mississippi, 112 Miss. 23, 72 So. 837.
The court erred in refusing the peremptory instruction requested by the defendant.
Abele v. State, 138 Miss. 772, 103 So. 370; Hunter v. State, 137 Miss. 276, 102 So. 282; White v. State, 146 Miss. 815, 112 So. 27.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
Section 2241, Code of 1942, is still in effect as World War II has not ended. Peace treaties have not been signed; and the United States is still maintaining armies and other military forces in Germany and Japan, and still drafting men for military service.
Even if unconditional surrender of Germany and Japan is to be considered as the termination of the war, still prosecution of a violation of Section 2241, whch occurred prior to the surrender, would be authorized under Section 2608, Code of 1942.
The amending of an indictment by striking out the misdemeanor charge and leaving only the charge of grand larceny is not error.
Osser v. State, 165 Miss. 680, 145 So. 754; Code of 1942, Sec. 2566; 8 Miss. Digest, Ann. "Indictments and Information," Key Nos. 155 to 159 (2); 69 A.L.R. 240, 243.
The uncorroborated testimony of an accomplice is sufficient to sustain conviction, except where such testimony is wholly improbable and unreliable, or where the testimony of accomplice is impeached by showing his reputation for truth and veracity bad, and where testimony for defendant is strong and logical. The jury is the judge of the credibility of the witnesses and of the weight and worth of the testimony.
Boutwell v. State, 165 Miss. 16, 143 So. 479; Pruitt v. State, 163 Miss. 47, 139 So. 861; White v. State, 52 Miss. 216; Fitzcox v. State, 52 Miss. 923; Abele v. State, 138 Miss. 772, 103 So. 370; White v. State, 146 Miss. 815, 112 So. 27; Rutledge v. State, 171 Miss. 311, 157 So. 907; Hunter v. State, 137 Miss. 276, 102 So. 282; 5 Miss. Digest, "Criminal Law," Key Nos. 741 to 760.
Argued orally by H.F. Jones, for appellant, and by Geo. H. Ethridge, for appellee.
This appeal is from a conviction on the charge of having feloniously stolen a pneumatic rubber automobile tire from a car parked on the street. One J.C. Delph, who was apprehended by the owner while replacing the stolen new tire in the nighttime with an old worn out one, claimed that he was changing the tire at the instance of the accused, and that it was the accused who was seen to back his own car out from the curb nearby and drive away when the owner of the stolen tire appeared on the scene. However, one Walter Diggs testified that it was he who backed the other car out and drove away at the time in question.
The witness Delph at first stated to the owner and to the officer that the accused paid him 60c and asked him to take the tire which had been removed from the car and have it patched, and that while he was undertaking to replace it with the old tire, the accused put the new one in his car before driving away, and while the owner was approaching the scene. However, the witness was well acquainted with the accused and failed to then accuse him by name to the owner and to the officer. He also admitted on the witness stand that he lied to them about having been paid 60c for his services. His explanation for this, and for not having named the accused as the guilty person, was that he wanted to go and find him, beat him up and make him bring the tire back. Nevertheless, he claims to have found the stolen new tire in the edge of a stream of water on the next day, nearer to his own home than to that of the accused, and he then failed to retrieve the tire and return it to the owner. He undertook to show the officers where he had found the tire the next day, but the same has not yet been found.
The witness further contended that he first decided to accuse the appellant of the crime when the officer "turned the key on me at the jail." Thereupon, the officer visited the home of the appellant but failed to find the stolen tire in his possession, and the proof is silent as to whether the appellant's spare tire was missing from the trunk of his own car.
At the conclusion of all of the evidence, the appellant requested that the court instruct the jury to return a verdict of not guilty in his favor. This instruction should have been granted. While a conviction may be sustained on the uncorroborated testimony of a witness who is incriminated by the facts in a case, 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. Creed v. State, 179 Miss. 700, 176 So. 596. See also Truckers Exchange Bank v. Conroy, 190 Miss. 242, 250, 199 So. 301, which was followed in the case of Jakup v. Lewis Grocer Company 190 Miss. 444 452, 200 So. 597, and Lyle v. State, 193 Miss. 102, 8 So.2d 459; as to verdicts based upon unreasonable and unbelievable testimony.
By prolonging this opinion, an analysis of the testimony could be made which would clearly demonstrate that no conviction should be permitted to stand under the circumstances disclosed by this record. It is sufficient to say that we are thoroughly satisfied that the peremptory instruction should have been granted.
Reversed and judgment here for the appellant.