Acuna v. State, 38040

• Decision Date: 01 October 1951
• Docket Number: No. 38040,38040
• Citation: 54 So.2d 256
• Parties: ACUNA v. STATE.
• Court: Mississippi Supreme Court

Page 256

54 So.2d 256

ACUNA v. STATE.

No. 38040.

Supreme Court of Mississippi, Division A.

Oct. 1, 1951.

Alexander, Feduccia & Alexander, Cleveland, for appellant.

J. P. Coleman, Atty. Gen., Geo. H. Ethridge, Asst. Atty. Gen., for appellee.

KYLE, Justice.

Horacio Palacios and Severiano Acuna were indicted in the Circuit Court of Bolivar County on a charge of burglary. A severance was granted, and on separate trial Acuna was convicted and sentenced to one year's imprisonment in the state penitentiary, and from that judgment he prosecutes this appeal.

L. P. Robertson was engaged in the hardware business in the Town of Merigold, and on the night of September 17, 1950, which was Sunday night, his store was burglarized. Robertson was informed of the burglary by one Gramlin shortly after midnight. He went to the store immediately and found two of the doors open, the front door to the office and the back wareroom door. The wareroom door and the office door had been opened from the inside. When Robertson arrived at the store building he found the store and wareroom in great disorder. Many articles of merchandise had been removed from the store and wareroom. Gramlin went with him, and they found a short distance back of the store building several guns and rifles, several radios, and shotgum shells, cigarettes, several watches and other merchandise, of a total value in excess of $500. The property was found about 20 feet from the rear end of the warehouse building. It was partially hidden in an alley ditch. Robertson testified that he had been at the store about 4:00 o'clock Sunday afternoon, and everything appeared to be in order at that time. After the store had been burglarized Robertson examined the skylight and found that a panel of the skylight had been removed. It appeared that entrance into the building had been made through the hole thus made in the skylight.

The State, before proving the corpus delicti, introduced W. O. Griffin, the night marshal at Merigold as its first witness. Griffin testified that in making his rounds shortly after midnight on the night of the burglary he saw Palacios and Acuna at a street corner about one block north of Robertson's hardware store. Griffin was not personally acquainted with either of them. Griffin observed that while they were talking to each other they walked toward the gin platform, and that 'they were looking around all the time.' They turned and came back to the street intersection, and Griffin saw them talking to two other men whom he could not identify. Griffin watched the movements of the men and a little later saw Palacios and Acuna in conversation with the other two men at the edge of the highway a short distance east of the hardware store. Palacios and Acuna then walked down the alley which ran almost alongside the hardware store. Griffin approached the two men, flashed his light upon them and stopped them and asked them where they were going. Griffin immediately proceeded to search the two men and asked them who the other 'two guys' were. They said the other 'two guys' were colored boys getting them some women.

Griffin testified that he searched Palacios and Acuna; that he found two wrist watches and some money and a knife on Palacios; and that he found shotgun shells on one of them--he did not know which one. Griffin testified that he took two watches and a knife off of Acuna. The knife was a snap button knife, which was identified by Robertson as a knife taken from a display cardboard in the hardware store. Griffin then arrested the two men and carried them to the Town Hall and locked them to the fire truck. At the time of his arrest Palacios had $4.04 in money, which Griffin took from him. Griffin in a later conversation with the two men asked Palacios the question: 'Boy, where did you get that money?' Palacios replied: 'We broke into a hardware store,' and pointed toward Robertson's Hardware Store. Griffin testified that Acuna was present when he had this conversation with Palacios, and that Acuna made no denial at that time of Palacios' statement that they had broken into the hardware store. Later, the witness testified, Acuna said he didn't have anything to do with the burglary, that he was up at the cotton platform waiting.

Upon cross-examination Griffin stated that at the time he accosted the two Mexicans in the alley and questioned them he did not know that Robertson's Hardware Store had been broken into; that he flashed his light on them but saw no evidence at that time that would tend to incriminate them or that indicated that a crime had been committed; that he told them he would have to search them, and that he did proceed immediately to search them; that he had no search warrant and had no warrant for their arrest; that he had no knowledge at that time that any crime had been committed; and that he did not inform them as to what they were being charged with. The witness stated that he did not place them under arrest until after he had searched them and found the above mentioned articles of stolen property on them. It was not until after the witness had carried the two men to the city hall and locked them to the fire truck that Palacios, in answer to the night marshal's question, 'Boy, where did you get that money?' stated that 'We broke into a hardware store,' and pointed toward Robertson's Hardware Store.

At the conclusion of Griffin's testimony, the defendant made a motion to exclude the evidence with reference to the search of his person and the articles found on his person when the search was made. The...