Abelle v. State

• Decision Date: 06 April 1925
• Docket Number: 24493
• Citation: 103 So. 370,138 Miss. 772
• Court: Mississippi Supreme Court
• Parties: ABELLE v. STATE. [*]

103 So. 370

138 Miss. 772

ABELLE v. STATE. ^[*]

No. 24493

Supreme Court of Mississippi

April 6, 1925

Division B

BURGLARY. Criminal law. Conviction on unsupported testimony of accomplice not upheld in view of circumstances; evidence held insufficient to support conviction for burglary.

Ordinarily a conviction may be had upon uncorroborated testimony of an accomplice, but where the accomplice is the sole witness connecting the defendant with the crime, and where his veracity is shown by strong evidence to be bad, and where defendant's reputation for honesty and integrity, truth and veracity, is satisfactorily proved to be good, and where an alibi is proved by a disinterested witness, a conviction on the unsupported testimony of the accomplice will not be upheld. The evidence in this case reviewed and held insufficient.

HON. W A. ALCORN, JR. Judge.

APPEAL from circuit court of Tunica county, HON. W. A. ALCORN, JR. Judge.

F. R Abele was convicted of burglary, and he appeals. Reversed and remanded.

Reversed and remanded.

Galloway & Weinstein, for appellant.

After a careful reading of the record in this case nowhere can be found any testimony whatsoever to connect appellant with the commission of the crime, except that of the witness, Westbrook, and we are frank to say that we are unable to find anywhere in this record any facts or circumstances to corroborate his testimony. The appellant was convicted upon the testimony of R. T. Westbrook who was indicted and convicted of the said burglary. R. T. Westbrook the principal witness upon whose testimony alone the state relied for a conviction, and upon whose testimony alone a case was made out against appellant, was impeached in every manner known to the law. He was on his own testimony an accomplice, served a sentence in the state penitentiary of Mississippi for the commission of this same offense. He made statements out of court contrary to his statements in court. He acknowledged on the witness stand that he had been engaged in the bootlegging business and convicted. He admitted on the witness stand that he had been engaged in the thieving business for some time prior to the commission of the crime to which he pleaded guilty as an accomplice in the instant case, and it was proven by witnesses knowing his reputation for truth and veracity that he was unworthy of belief and that they would not believe him on oath, and that his reputation for honesty and integrity was of the worst kind.

The appellant proved by a number of witnesses who stand high in the business and social world that he bore a good reputation for truth and veracity, honesty and integrity and that he was worthy of belief, and whose reputation for honesty and integrity was above reproach. Appellant further proved by a number of unimpeached witnesses that he was in Memphis when the crime was committed and confessed to by Westbrook. This court has held that a conviction ought not to stand upon evidence disclosed by the record in this case. The only incriminating evidence is contained in the testimony of Westbrook who was impeached by every method known to the law while the defendant proved his defense by a large number of unimpeached witnesses and the evidence clearly preponderates in his favor. Wright v. State, 130 Miss. 608 to 610.

J. L. Byrd, Assistant Attorney-General, for the state.

The appellant argues only the insufficiency of the evidence to support the verdict. Counsel for appellant vigorously assail the testimony of the accomplice, Westbrook, and charge that he is utterly unworthy of belief, and call attention to various admissions made by Westbrook as to his previous life. But the witness Westbrook was clear and straightforward in his testimony as to the robbery, and the apparent contradictions therein were satisfactorily accounted for. On the other hand, there were several remarkable things in the testimony of the defendant which were well calculated to cause the jury to hesitate to accept it as true. One thing stands out clearly in the record, and that is the attempt of the defendant to explain the presence of his automobile in Mississippi. It is not disputed that the automobile which was used and which was caught by the sheriff was in fact the automobile of appellant. In fact, the record shows that he afterwards replevied the car from the sheriff, but he accounts for the car being in Mississippi by saying that on the day before the robbery he loaned his automobile to a man in Memphis, but he testifies that he knew the man just casually; that he did not know his business address and was very indefinite as to his residence address. He further testifies that he never saw this man again after he loaned him the automobile and that he never heard of the car any more until the car was located in Mississippi. Yet he made no effort to secure the car from this man or to get the man. To say the least of it, that is remarkable.

We submit, however, that the evidence in this case presents a clear conflict of questions of fact and it was for the jury to decide, and that they were better able to judge of the credibility of the witnesses than this court for the reason that they had the witnesses before them, and they saw them and heard them on the witness stand. This court has held time after time that it will not disturb the findings of the jury merely because the jury might, without being censurable, have acquitted. See Skinner v. State, 53 Miss. 399, and Gamblin v. State, 658.

In the present case the jury was fully and fairly instructed for the state and the defendant, and the jury was particularly instructed as to the caution which should be exercised by them in considering the testimony of Westbrook, the accomplice, and with all this, the jury resolved the conflict in the evidence against the appellant, and we submit that there was ample testimony in the record upon which they could and did base their conflict.

The appellant had a fair and impartial trial, and we submit that the cause should be affirmed.

Argued orally by A. E. Weintein, for appellant, and J. L. Byrd, assistant Attorney-General, for the state.

OPINION

ETHRIDGE, J.

Appellant was indicted and tried for burglary, convicted and sentenced to one year in the penitentiary, and appeals from said judgment.

The burglary was committed by breaking open I. C. car No. 24490, the property of the Illinois Central Railroad Company in service on the Yazoo & Mississippi Valley Railroad, and taking from said car cigarettes to the value of one thousand and forty dollars.

R. T. Westbrook, a witness, upon whose testimony the conviction is predicted, was an accomplice, who had previously pleaded guilty to the burglary and been sentenced to serve a term in the penitentiary therefor. According to this witness the appellant, Westbrook, and another party by the name of Beaver proceeded from Memphis, Tenn., into Tunica county, Miss., and awaited the arrival of the freight train, and, while said train stopped at a station in Tunica county taking water, the seal of the door of car No. 24490 in said train of cars was broken and the car door opened, and defendants entered and located the cigarettes and before the train reached Lula, Miss., the cigarettes were thrown from the train, and the said parties took said cigarettes and place them in a cotton house, fastening the door in such way that they could tell if the cotton house was entered when they returned to get the cigarettes.

The burglary occurred on a Monday night and on Tuesday night following the parties returned to the cotton house where the cigarettes were stored, driving in a Ford car belonging to the appellant. On approaching the cotton house they discovered that some one had opened the door. Thereupon, according to Westbrook, he wanted to abandon the enterprise and leave the cigarettes in the cotton house, but Beaver insisted on taking them, and they started loading the cigarettes into the Ford car when another car approached and thereupon the burglars pretended to be pumping up a tire. In this approaching car were the sheriff and his deputies who hailed them and asked if they needed assistance, and they replied that they did not, and the sheriff's car went on down the road. Presently the sheriff returned and threw his flashlight and gun on Westbrook, and he surrendered. The other burglars drove away in the Ford car, but the sheriff fired upon the car and punctured the tire which ditched the car, but the other two men escaped but the car itself was captured. Westbrook gave the sheriff a false name and was placed in jail at Tunica at first and thereafter removed to the jail at Clarksdale at which place he made a confession implicating Beaver and the appellant. Beaver was tried and convicted at the former term of court and sentenced to the penitentiary, and did not appear as a witness in this case.

Westbrook testified that Beaver approached him about needing money, and proposed that they rob a car and get some cigarettes; that they procured information from a negro in the service of the railroad company at Memphis as to the car and number in which the cigarettes were placed for shipment and what time it was due to be billed out of Memphis; that they got in touch with the appellant and the three men proceeded to a point in appellant's Ford car where the freight car was burglarized, secured the cigarettes as above stated, placed them in the cotton house, returned to Memphis, and on the following night drove back to the cotton house in appellant's Ford car.

The sheriff testified that he was...