Bryant v. State

• Decision Date: 05 November 1934
• Docket Number: 31334
• Citation: 157 So. 346,172 Miss. 210
• Court: Mississippi Supreme Court
• Parties: BRYANT v. STATE

157 So. 346

172 Miss. 210

BRYANT v. STATE

No. 31334

Supreme Court of Mississippi

November 5, 1934

Division B

1 ROBBERY.

Positive identification of defendant as participant in robbery field sufficient to take issue of identity to jury.

2. CRIMINAL LAW.

Whether verdict was against great weight of evidence would not be considered where motion for new trial did not assign such as one of its grounds.

3. CRIMINAL LAW.

Motion to exclude all evidence of witness concerning statements made by appealing defendant and codefendant tried for same offense held properly overruled, where evidence was admissible so far as codefendant was concerned, :and inadmissibility so far as appealing defendant was concerned was not so obvious as to be beyond possibility of debate.

4. CRIMINAL LAW.

In prosecution against two defendants in which evidence is introduced which is not admissible as to one of defendants it is duty of that defendant to separately object and to request a specific ruling that as to him evidence should be excluded, although admissible as to other defendant.

5. CRIMINAL LAW.

On issue of Identity, evidence of admissions or confessions of like crimes committed jointly by same defendants, against same class of persons about same time, showing same general design or system, is inadmissible.

6. CRIMINAL LAW.

Where names of seven persons who were present when robbery was committed appeared on indictment and were summoned by state as witnesses and were present at trial, defendant did not exercise due diligence when he failed to interview or introduce as witness one of seven persons not called by state, who would have testified that defendant did not look like robber, so that refusal of motion for new trial on ground of such newly discovered evidence was proper.

7 EVIDENCE.

Newly discovered evidence is available as ground for new trial or for rehearing, where due diligence has been exercised in procuring such evidence.

8. EVIDENCE.

Accused has duty of interviewing all persons known to have been present when crime was committed, including state's witnesses when names of such appear on back of indictment, and accused cannot excuse his failure to interview state's or supposedly adverse witnesses on ground of hostile or stubborn attitude of such witnesses, as regards, accused's exercise of due diligence in procuring newly discovered evidence.

HON. E. J. SIMMONS, Judge.

APPEAL from the circuit court of Pike county HON. E. J. SIMMONS, Judge.

Creel Bryant was convicted of robbery, and he appeals. Affirmed.

Affirmed.

Broom & Shipman, of Jackson, for appellant.

After the case was closed and appellant was sentenced to serve two years in the penitentiary, he filed a motion for a new trial. It developed that the state had summoned a witness Luke Harvey, but did not use him. He was a clerk or assistant manager of the store and was present when the robbery was committed. He was in a position where he could see and know the man who stood at the door. He is an intelligent white man. The appellant nor his attorneys knew what his testimony would be until after the trial. They assumed, and had a right to assume, that it would be as the other witnesses with the one exception of the negro Walter Magee, to the effect that he could not identify the appellant, and if that was true then it would have been proper for the state to excuse him, because his testimony would have shed no light on the case; but appellant and his attorneys after the trial and sentence for the first time discovered that this witness would not only testify that he could not identify this appellant as the man who stood near the door, but that he would go a step further and positively testify that the man who stood near the door was not the appellant but some one else.

The motion for a new trial was in due form and sworn to by the appellant and on the hearing it was shown that neither the appellant nor his attorneys knew of the existence of this evidence and we have already shown the circumstances that deceived them with reference to this witness.

Overton v. State, 101 Miss. 607, 58 So. 219.

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

It will be conceded that the testimony for the state in this case does not make out a strong case against appellant, but it appears that it was sufficient to require the jury to pass on it and it is certainly sufficient to prevent the trial judge from granting the motion to exclude any peremptory instruction.

Coleman v. State, 155 Miss. 482, 124 So. 652; Cody v. State, 167 Miss. 150, 148 So. 627.

When the confession was offered, the defendant asked that the jury be retired and the competency of it inquired into. This inquiry was completed and the record does not show that at any time the court was asked to pass on its admissibility, and, likewise, the record shows no objection to the confession, or any part of it, as and when it was offered to the jury.

Howard v. Town of Newton, 108 Miss. 548, 67 So. 49; Boatwright v. State, 143 Miss. 676, 109 So. 710; Jackson v. State, 163 Miss. 235, 140 So. 683; Peters v. State, 106 Miss. 333, 63 So. 666; Carter v. State, 6 How. 9; Wright v. State, 82 Miss. 421, 34 So. 4; Wampold v. State, 155 So. 350; Lee v. State, 137 Miss. 329, 102 So. 296; Brown v. State, 72 Miss. 95, 16 So. 202; Whittington v. State, 160 Miss. 705.

The testimony on motion for a new trial shows that the witness was present at the time of the trial, although it shows that he was not used as a witness by the state. With the witness for the state identifying this witness as having been present at the time of the robbery, it seems that diligence would have required the defendant to ascertain what the witness would testify.

Argued orally by Stewart Broom, for appellant, and by W. D. Conn, Jr., for the state.

OPINION

Griffith, J.

Appellant and another, named Mize, were jointly indicted, tried, and convicted of the robbery of a Jitney Jungle Store in McComb. The debatable issue was one of identity. The testimony was overwhelming in the establishment of the guilt of Mize, but was not strong upon the issue of the identity of this appellant. Nevertheless one witness, who was standing very near one of the alleged criminals during the robbery, positively identified appellant. This was sufficient to take the issue to the jury as against the peremptory charge requested and denied; and we cannot consider whether the verdict is against the great weight of the evidence, because the motion for a new trial did not assign this as one of its grounds. Justice v. State, 170 Miss. 96, 154 So. 265.

The defendants lived at Crystal Springs, and it appears that about the same time as the robbery here in issue there had been a series of robberies of Jitney Jungle Stores in Jackson. Crawford, a police officer of the city of Jackson was introduced as a witness who testified that these two defendants having been arrested as the perpetrators of the Jackson robberies, were interviewed in jail, and that Mize, the other defendant, freely and voluntarily confessed that he had committed the robberies in Jackson and also this robbery in McComb; and that appellant freely and voluntarily confessed that he drove the car for about all the robberies committed by Mize, that Mize was the gunman, and he (the appellant) drove the car for him. The police officer admitted, however, that, so far as appellant was concerned, the statements by appellant were in reference to the Jackson robberies, and that the McComb robbery was not mentioned. At the close of the testimony of the police officer, a motion to exclude his testimony was made in the following words: "Now come the defendants and move the court to exclude all the evidence offered by the witness Crawford for the reason it is not shown that the time and occasion spoken of was the time...