Boutwell v. State

• Court: Mississippi Supreme Court
• Writing for the Court: Anderson, J.
• Citation: Boutwell v. State, 165 Miss. 16, 143 So. 479 (Miss. 1932)
• Decision Date: 10 October 1932
• Docket Number: 30271
• Parties: BOUTWELL v. STATE

143 So. 479

165 Miss. 16

BOUTWELL v. STATE

No. 30271

Supreme Court of Mississippi

October 10, 1932

Division B

Suggestion Of Error Overruled November 7, 1932.

APPEAL from circuit court of Clarke county.

HON. J D. FATHEREE, Judge.

B. A Boutwell was convicted of robbery, and he appeals. Affirmed.

Affirmed.

Reily & Parker, of Meridian, for appellant.

In the case at bar, the evidence rests upon the testimony of purported accomplices, which appears to us to have been impeached in every way possible.

Wright v. State, 94 So. 716.

The evidence of this record clearly brings this case within the exception, which holds that the testimony of an accomplice is not sufficient, if such evidence is improbable on its face or self-contradictory.

Matthews v. State, 114 So. 816; Abele v. State, 138 Miss. 772.

The jury has the right to pass upon the weight of the testimony coming from every witness, but they have not the right to consider the evidence of a purported accomplice, without at the same time, taking into account the recognized weakness of such a witness. The jury has the right to accept the evidence coming from a purported accomplice, only when such evidence is not improbable on its face, or self-contradictory, for when such evidence is improbable on its face or self-contradictory, then, as a matter of law, such evidence is insufficient.

Matthews v. State, 114 So. 816.

The instructions granted in this case, are erroneous and should not have been granted the state, and we think this sufficient to require a reversal of this case.

Instructions to the jury ought to be framed in clear and distinct, and not in vague and uncertain language; they ought to explain to the jury the principles of law applicable to the facts in the case, and not leave unexplained principles which are necessarily involved in the verdict they are to find.

Cochran v. State, 39 Miss. 541; Williams v. State, 90 So. 886.

The advice or encouragement which will render one an accessory before the fact may be by acts or words, but it must, to create guilt, be used with the intent to encourage and abet the crime.

1 R. C. L., at page 147.

In order to constitute one an accomplice, he must knowingly, voluntarily and with common intent with the principal offender unite in the commission of the crime.

1 R. C. L., page 158.

The instruction complained of in this case, does not require any participation of this defendant in any criminal act to warrant his conviction.

The following instrucution granted the state is erroneous.

You are charged for the state, that in establishing a conspiracy, the state is never required to prove in express terms an agreement between the parties to commit the crime, but it is sufficient when the evidence reveals . . . a common design or understood purpose between the parties to commit the crime.

This instruction does not say to the jury that the proving of an expressed agreement is not required, but that in the proving of an agreement, the state is not held in its proof to express terms.

This instruction is further erroneous because it states that the evidence in a criminal case is sufficient to prove a conspiracy, whenever such evidence reveals the existence of the conditions named therein. The term "reveal" is not the same as "proof beyond a reasonable doubt." And in order to establish a conspiracy in a criminal case, nothing less than proof beyond reasonable doubt should be stated as sufficient to establish a conspiracy or any other feature of the guilt of the defendant.

This instruction is further erroneous because it states that the defendant's guilt in participation in a conspiracy is established when the evidence reveals an "understood purpose between the parties to commit the crime."

Proof that one has stood by at the commission of a crime without taking any steps to prevent it does not alone indicate such participation or combination in the wrong done as to show criminal liability, although he approves of the act. Even the fact of previous knowledge that a felony was intended will not render one who has concealed such knowledge and is present at the commission of the offense a party thereto.

Harper v. State, 35 So. 572.

We next call the court's attention to an instruction requested by the defendant and refused by the court, as follows:

"The court instructs the jury for the defendant that reasonable doubt means that uncertain condition of mind which may remain after considering what has not, as well as what has been proved in this case. And if the jury, from all testimony in this case and the lack of testimony, has a reasonable doubt in their mind as to the guilt of the defendant, then it is your sworn duty to acquit this defendant.

This instruction tells the jury that a reasonable doubt may arise, as well as from the lack of evidence, as from the evidence, and if they do in fact entertain a reasonable doubt of the defendant's guilt, based upon the lack of evidence or upon the evidence, that the defendant should be acquitted.

This instruction should have been granted.

A reasonable doubt may arise from want of evidence, as well as out of the evidence.

Hale v. State, 16 So. 387; Howell v. State, 53 So. 954.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

The evidence of an accomplice is sufficient to sustain a conviction against his co-defendant, unless such evidence is improbable on its face or self contradictory. The question of the credibility of such evidence when not so unreasonable or contradictory on its face, is for the jury, and the jury's verdict will not be disturbed merely because such evidence is contradicted by the witnesses for the defendant.

Matthews v. State, 114 So. 816.

The question of whether or not the testimony of certain witnesses has been contradicted by other witnesses for the defendant is not a matter to be inquired into by this court. As said in the Matthews case "The jury's verdict will not be disturbed merely because such evidence is contradicted by the witnesses for the defendant.

Gates v. State, 135 So. 189.

It is sufficient to sustain a conviction although the accomplice admitted that he testified falsely in another trial in the absence of the conviction of perjury for such false swearing.

Gates v. State, 135 So. 189.

It has long been settled in this state, beyond peradventure, that the testimony of an accomplice alone, uncorroborated, is sufficient to sustain a verdict of guilty.

Pruitt v. State, 139 So. 861.

It is not error to refuse an instruction on the weight of the evidence.

Hays v. State, 121 So. 281; Randolph v. State, 119 So. 207; Hartley v. State, 137 So. 518.

Technical law is good law under proper circumstances, but not where it shocks common sense.

State v. Pressley, 91 Miss. 377, 44 So. 827; Wexler v. State, 142 So. 501.

I submit that the instruction complained of meets the requirements of the Harper case in that it provides that if appellant encouraged, aided and abetted in this holdup, then he was as much responsible for the commission of the crime as the man who actually committed the holdup.

It is quite as well settled that a conspiracy may be proved like other controverted facts by the acts of parties, or by circumstances, as well as their agreement.

Street v. State, 43 Miss. 2; Osborne v. State, 99 Miss. 410, 55 So. 52.

Appellant complains of the refusal of the trial court to grant him the instruction which attempts to define "reasonable doubt." This instruction, if followed literally by the jury, will amount to the giving of a peremptory instruction and where a defendant is not entitled to a peremptory instruction outright this court has held that it is not error to refuse such instruction.

Runnels v. State, 96 Miss. 92, 50 So. 499.

Argued orally by Marion Reily, for appellant, and by W. D. Conn, Jr., for the state.

OPINION

Anderson, J.

Appellant was indicted and convicted in the circuit court of Clarke county of the crime of robbery, and sentenced to the penitentiary for a term of ten years. From that judgment he prosecutes this appeal.

Appellant was indicted jointly with J. H. Jenkins, M. A. Evans, and J. W. Boutwell on a charge of robbing the Stonewall Cotton Mill of three thousand eight hundred eighty dollars. Appellant was granted a severance, and tried apart from the others.

On the 15th of January, 1931, the Stonewall Cotton Mill was robbed of the sum of three thousand eight hundred eighty dollars. The evidence shows that fact without conflict. J. H. Jenkins and M. A. Evans testified for the state. The evidence showed that Evans committed the overt act of the actual robbery, that J. W. Boutwell was present, and that J. H. Jenkins was nearby in an automobile awaiting the commission of the robbery by Evans for the purpose of taking the latter and the fruits of the robbery away from the scene. Both Evans and Jenkins testified to those facts. They testified further that the robbery was suggested and planned by the appellant, and that he shared in its fruits to the extent of one-fourth of the three thousand eight hundred eighty dollars. Besides the evidence of the two accomplices, Evans and Jenkins, there were other material facts and circumstances in evidence supporting the state's theory that appellant suggested and planned the robbery and shared in its fruits, and that Evans and Jenkins and appellant's brother, J. W. Boutwell, were mere instruments in his hands to commit the crime.

Appellant assigns and argues as error the action of the court in refusing to direct a verdict in his favor on the ground that the evidence was insufficient to sustain a conviction. To sustain that contention appellant relies on Abele v State, 138 Miss. 772, 103 So. 370; Matthews v....