De Angelo v. State

• Decision Date: 11 December 1939
• Docket Number: 33820
• Citation: 192 So. 444,187 Miss. 84
• Court: Mississippi Supreme Court
• Parties: DE ANGELO v. STATE

192 So. 444

187 Miss. 84

DE ANGELO v. STATE

No. 33820

Supreme Court of Mississippi, Division B

December 11, 1939

APPEAL from the Circuit Court of Jackson County HON. L. C. CORRAN Judge.

Marshall De Angelo was convicted as an accessory before the fact to the crime of robbery, and he appeals. Reversed and remanded.

Reversed and remanded.

Otto Karl Wiesenburg, of Pascagoula, and Mize, Thompson & Mize, of Gulfport, for appellant.

The trial court erred in overruling the defendant's motion to quash the indictment, and the plea in abatement thereof, on the ground that on May 10, 1939, eight days prior to the returning of the indictment in this case against the defendant, proceedings had been instituted before a justice of the peace for Supervisors Beat # 3 of Jackson County Mississippi, by affidavit charging the said offense, and warrant issued thereon; that the defendant had not waived a preliminary hearing but had demanded the same, and that he had been denied a preliminary examination of his case as provided by Section 1230 of the Code of 1930.

Miss Code of 1930, Sections 1195, 1230, 1249, 1320, 1321, 1322, 1323, 1324; 16 C. J. 316, Sec. 562; 16 C. J. 332, Sec. 599; 16 C. J. 346, Sec. 634; 31 C. J. 576, Sec. 27; 14 Am. Jur 933, Sec. 240; State v. Pay, 45 Utah 411, 146 P. 300; State v. Recorder First Dist., 42 La. Ann. 1091; State v. Brunot, 28 So. 996, 104 La. 237; People v. Quinn, 150 A.D. 813, 818, 135 N.Y.S. 477; Ex parte Simpson, 57 So. 518, 3 Ala. App. 222; Hughes v. State, 96 Miss. 581, 41 So. 464; Atkinson v. State, 132 Miss. 377, 96 So. 310; State v. McKinley (Mo.), 111 S.W.2d 115; State v. Freeman (Utah), 71 P.2d 196; People v. Dochstader, 264 N.W. 356, 274 Mich. 238; State v. Leek (Utah), 39 P.2d 1091; Bailey v. State (Okla.), 30 P.2d 714; State v. King (S.D.), 252 N.W. 36; State v. Anderson (S.D.), 242 N.W. 119; Ex parte Martin (Texas), 45 S.W.2d 965; Davis v. State (Nebr.), 237 N.W. 297; Com. v. Moss, 24 Pa. Co. Ct. 221; State v. Boehm, 279 N.W. 824; 116 A.L.R. 547; People v. Mayaguez Sugar Co., 37 Porto Rico 106; Ex parte Bedard, 106 Mo. 616, 17 S.W. 693; People v. Alex, 265 N.Y. 192, 192 N.E. 289; State v. Jeffries, 210 Mo. 302, 109 S.W. 614, 14 Ann. Cas. 524; Latimer v. State, 55 Nebr. 60, 76 N.W. 207.

The trial court erred in granting an instruction for the state that prejudicially singled out two isolated facts and elements of the state's case for the consideration of the jury, that gave undue prominence to the controverted sharing of the proceeds of the alleged robbery was consummated, and that erroneously instructed the jury that the defendant should be found guilty as an accessory before the fact to robbery if an apparently unrelated assault and larceny had been committed.

Code of 1930, Sections 769 and 1126; 4 Blackstone Commentaries 242; McDaniel v. State, 8 S. & M. 401; Smith v. State, 82 Miss. 793, 35 So. 178; Blackwell v. State, 94 Miss. 240, 48 So. 290; Webb v. State, 99 Miss. 545, 55 So. 356; Buford v. State, 124 Miss. 418, 86 So. 860; Prane v. State, 73 Miss. 838, 19 So. 711; Godwin v. State, 73 Miss. 78, 19 So. 712; Hood v. State, 170 Miss. 130, 155 So. 679; Jackson v. State, 66 Miss. 89, 5 So. 690; Fore v. State, 75 Miss. 727, 23 So. 710; Gordon v. State, 93 Miss. 543, 49 So. 699.

The trial court erred in holding immaterial a question propounded to the state witness and principal, Frank (Billy) Moody, as to the identity of the person who allegedly advised the witness that the defendant, Marshall De Angelo, had informed as to Frank (Billy) Moody's participation in the crime. Such question being competent on cross-examination to show the bias and motive of the witness and affecting his credibility.

Sec. 26, Constitution; Sec. 1532, Code of 1930; McClelland v. State, 98 Miss. 735, 54 So. 251; Hardy v. State, 167 Miss. 150, 148 So. 627; George v. State, 39 Miss. 570; Newcomb v. State, 37 Miss. 383; McMasters v. State, 81 Miss. 374, 33 So. 2; Upchurch v. State, 81 Miss. 374, 51 So. 810; Rouse v. State, 107 Miss. 427, 65 So. 501; Prewitt v. State, 126 So. 824, 156 Miss. 571; Wharton, Crim. Ev., Sections 1312-1314, pages 2186 to 2188; 70 C. J., Sec. 779, page 611; 70 C. J., Sec. 782, page 615; 70 C. J., Sec. 792, page 620; 70 C. J., Sec. 1017, page 812; 70 C. J., Sec. 1025, page 817; 70 C. J., Sec. 1197, page 990.

The trial court erred in refusing to permit the defendant to prove his general good character and reputation in the community in which he resided, and erred in limiting such testimony to the general reputation of the defendant for peace and violence in the community in which he resided, which is not a trait involved in the alleged offense of an accessory before the fact to robbery.

Westbrooks v. State, 76 Miss. 710, 25 So. 491; Jefferson v. State, 102 Miss. 174, 59 So. 8; Maston v. State, 83 Miss. 647, 36 So. 70; Horton v. State, 36 So. 1033; Wharton Crim. Ev., Sec. 331, page 460; 16 C. J., Sec. 1124, page 582; 22 C. J., Sec. 565, page 474; People v. Woods, 206 Mich. 11, 172 N.W. 383; Code of 1930, Sec. 1126; McCray v. State, 153 Miss. 587, 121 So. 291; Thomas v. State, 165 Miss. 897, 148 So. 225; Jones v. State, 152 Miss. 900, 120 So. 199; Woods v. State, 6. So. 207; Cockrell v. State, 95 S.W.2d 408.

The trial court erred in overruling the motion for a new trial on the ground of newly discovered evidence, which motion was supported by the sworn affidavit of the defendant, the defendant's counsel, and three witnesses. The affidavits set out that the defendant's counsel had interviewed the state witness, Harold Goff, the only material witness testifying before the grand jury, as shown by the indorsement on the back of the indictment. That the witness, Harold Goff, had, in answer to the questions of the defendant's counsel, stated that Marshall De Angelo was in no way involved or implicated in the alleged crime, and that neither the witness, Harold Goff, nor Marshall De Angelo knew that any robbery was to be committed by Frank (Billy) Moody. That when the witness, Harold Goff, testified for the state at the trial, he admitted he had lied to that attorney, without giving any reason for so doing. That the defendant, who was denied a preliminary hearing, and who had exercised all due diligence to determine what evidence would be used against him at the trial, became advised during the trial that the witness, Harold Goff, and the witness, Frank (Billy) Moody, who had not appeared before the grand jury, were testifying to facts that made the whereabouts of the defendant on the day following the date set out in the indictment, to-wit, between 4:30 and 7:30 P. M., Sunday night, February 5, 1939, of paramount importance to his defense. That the defendant and his counsel had exercised all due diligence, but that due to the denial of a preliminary hearing and to the deliberate falsehoods of the witness, Harold Goff, the defendant was not apprised until the time of the trial as to what evidence had had to meet. The affidavits of the three witnesses, attached to the affidavit, set out in detail that such witnesses would testify that Marshall De Angelo was in Grand Bay, Albama between 4:30 and 7:30 P. M. during the time the proceeds of the alleged robbery were alleged to have been divided with the defendant.

Bryant v. State, 172 Miss. 210, 157 So. 346; McCearley v. State, 97 Miss. 556, 52 So. 796; Bates v. State, 32 So. 915; Buckner v. State, 81 Miss. 140, 32 So. 920; Turner v. State, 89 Miss. 621, 42 So. 165; Weathersby v. State, 95 Miss. 30, 48 So. 724; Williams v. State, 99 Miss. 274, 54 So. 857; Watson v. State, 96 Miss. 369, 50 So. 627; Campbell v. State, 123 Miss. 713, 86 So. 513.

The trial court erred in overruling the defendant's motion for a new trial on the ground that the verdict is against the overwhelming weight of the evidence, not being supported by any credible evidence, the verdict resting on the uncorroborated testimony of two accomplices, Frank (Billy) Moody and Harold Goff, whose testimony was unreasonable, incredible, and contradictory, while the good character and good reputation of the defendant was testified to by eight witnesses of the community in which he resided and was admitted by the State of Mississippi.

16 C. J., Sec. 1453, page 710; Creed v. State, 176 So. 596, 179 Miss. 700; Day v. State (Miss.), 7 So. 326; Sykes v. State, 92 Miss. 247, 450 So. 838; Thomas v. State, 129 Miss. 332, 92 So. 225; 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; Harmon v. State, 167 Miss. 527, 42 So. 473; Rutledge v. State, 171 Miss. 311, 157 So. 907; Carter v. State (Miss.), 166 So. 377.

W. D. Conn, Jr., Assistant Attorney-General, for appellee.

The court properly overruled the motion to quash and denied the plea in abatement for two reasons.

A. The fact that no preliminary hearing was given defendant, although demanded, did not affect the jurisdiction of the Circuit Court to try him on a felony indictment regularly returned by the grand jury, even though it involved the identical offense charged by the affidavit before the Justice of the Peace.

Sec. 1230, Code of 1930; Inapplicability of State v. Pay, 45 Utah 411, 16 C. J. 316, Sec. 562.

B. The defendant, by posting bond and having himself released from custody, waived his right to a preliminary hearing, irrespective of whether such hearing is "a substantive right or procedural nicety."

The matter complained of in connection with cross-examination of Moody, a state witness, is an immaterial or collateral one and the court properly sustained objection thereto.

Cofer v. State, 158 Miss. 493, 130 So. 511; Witt v. State, 159 Miss. 478, 132 So. 338; Bradford v. State, 166 Miss. 296, 146 So. 635.

The court did...