Brittenum v. State

• Decision Date: 13 April 1936
• Docket Number: 32001
• Citation: 167 So. 619,175 Miss. 453
• Court: Mississippi Supreme Court
• Parties: BRITTENUM et al. v. STATE

167 So. 619

175 Miss. 453

BRITTENUM et al. v. STATE

No. 32001

Supreme Court of Mississippi

April 13, 1936

(Division A.)

1 LARCENY.

In larceny prosecution, omission from state's instruction that, to constitute larceny, taking of property must have been feloniously done, held error, since word "felonious" is not merely descriptive of grade of offense, but is essential ingredient of crime of larceny.

2. CRIMINAL LAW.

State had burden to show that confessions were entirely free and voluntary so as to be admissible in evidence.

3. CRIMINAL LAW.

In larceny prosecution, confessions of defendant should have been excluded where state failed to show that confessions were entirely free and voluntary, and it was admitted that one of parties who had defendant in custody promised to aid him if he would make a full confession.

4. CRIMINAL LAW.

In grand larceny prosecution, hearsay testimony as to value of stolen cow and testimony of witness as to matters appearing in books in office of stockyards in Memphis, where cow was sold by defendants, should have been excluded.

APPEAL from the circuit court of Marshall county.

HON. T H. MCELROY, Judge.

E. H Brittenum and Walker Thomas were convicted of grand larceny and they appeal. Reversed and remanded.

Reversed and remanded.

Lester G. Fant, Jr., of Holly Springs, for appellants.

The court gave for the state an instruction purporting to define the crime of larceny. It stated that if the jury believed from the evidence beyond a reasonable doubt that the defendants "unlawfully took, stole, and carried away" the cow, then the jury must convict the defendants. It entirely omitted to say that the jury must find that the defendants took the cow feloniously.

This instruction has been so often expressly condemned by this court that argument of the question seems unnecessary.

Dedeaux v. State, 125 Miss. 326, 87 So. 664; Poe v. State, 159 Miss. 76, 132 So. 92; Section 1009; Code of 1930; Watkins v. State, 60 Miss. 323; Warden v. State, 60 Miss. 638.

The alleged confessions of Brittenum should have been excluded.

Wright v. State, 161 So. 870.

Instead of the burden resting on the defendant to show it was involuntary, the alleged confession should be excluded if there is a reason able doubt that it was voluntary.

Johnson v. State, 107 Miss. 196, 65 So. 218; Ellis v. State, 65 Miss. 44, 3 So. 188; Williams v. State, 72 Miss. 117, 16 So. 296; State v. Smith, 72 Miss. 420, 18 So. 482.

Slight expressions of hope of reward or fear of punishment render alleged confessions inadmissible.

Simon v. State, 37 Miss. 288; Mackmasters v. State, 82 Miss. 459.

It is well settled that where one confession is inadmissible a subsequent one is likewise tainted unless it is clearly shown from the evidence that the inducement or fear has been removed. No such was made here.

Mackmasters v. State, 82 Miss. 459; Whitley v. State, 78 Miss. 255; Jones v. State, 133 Miss. 684, 98 So. 150; Fisher v. State, 145 Miss. 116, 110 So. 361

The court erred in admitting incompetent testimony.

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

The third instruction for the state told the jury that if it believed that the defendants "unlawfully took, stole and carried away" the cow, etc., it should find them guilty as charged.

Under Dedeaux v. State, 125 Miss. 326, 87 So. 664, and Coe v. State, 159 Miss. 76, 132 So. 92, the state submits that the instruction complained of is erroneous.

The question then arises as to whether this error has been cured by some other instruction

The record does not reflect just when the request was made, whether before or after the confession. However, it seems it was made prior to Bogard's leaving to assist Mrs. Loftin and shortly before Brittenum's statement to the deputy, Mr. Morton. If, however, it should be conceded that this request and promise was made prior to the confession and was such as to render that subsequent confession inadmissible as evidence, it still should not operate to work a reversal for the reason that the otherwise competent evidence overwhelmingly demonstrates the guilt of appellants of this larceny.

Warren v. State, 164 So. 234.; Comings v. State, 163 Miss. 442, 142 So. 19; Wexler v. State, 167 Miss. 464, 142 So. 501.

OPINION

Cook, J.

E. H. Brittenum, Walker Thomas, Robert Kinkle, and Oscar Watson were jointly indicted of charge of grand larceny. Robert Kinkle and Oscar Watson entered pleas of guilty, and testified for the state on the joint trial of the appellants, Brittenum and Thomas, who were convicted and sentenced to the penitentiary for a term of five years.

The conviction rests upon the corroborated testimony of the two alleged accomplices who had previously entered pleas of guilty, the purported confessions of Brittenum, and certain circumstances and physical facts. According to the testimony of the two alleged accomplices, the four codefendants, in accordance with a preconceived plan, assembled after midnight on July 6, 1935, and stole a cow of the value of thirty-five dollars belonging to one Isaac Martin, loaded her on a truck belonging to Brittenum, and hauled her to Memphis, where she was sold to a cattle dealer. The appellant Brittenum admitted that he hauled the cow in question to Memphis, but contended that the defendant Oscar Watson hired him to do so, and that he hauled the cow and was paid therefor in the...