Bunckley v. State

• Decision Date: 09 February 1900
• Citation: 27 So. 638,77 Miss. 540
• Court: Mississippi Supreme Court
• Parties: AARON N. BUNCKLEY v. STATE OF MISSISSIPPI

27 So. 638

77 Miss. 540

AARON N. BUNCKLEY v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

February 9, 1900

December 1899

FROM the circuit court of Franklin county, HON. JEFFERSON TRULY Judge.

Bunckley appellant, was indicted for and convicted of larceny, and appealed to the supreme court. The facts are stated in the opinion of the court.

Judgment reversed.

Brame & Brame, Alexander & Alexander, Cassedy, Ratcliff & Cassedy and Theodore McKnight, for appellant.

The judgment must be reversed because the trial court, over the objection of appellant, allowed the witnesses for the state to testify as to the failure of the accused to become a witness on the preliminary hearing. This was violative of § 1741, code 1892. The charge against the appellant is larceny and the state relied solely on proof tending to show that the stolen property was found in defendant's possession soon after the theft and the absence of an explanation of his possession by the accused. Defendant's failure to testify in such a case, if brought to the attention of the jury, would be most prejudicial, more so than in ordinary cases. Accused had the legal right not only to refuse to testify on the preliminary hearing, but also to refuse to make explanation. The precise question has recently been decided in Texas. Richardson v. State, 33 Tex. Crim. Rep., 520, and in Kentucky, Parrott v. Commonwealth, 47 S.W. 452.

Wiley N. Nash, attorney-general, for appellee.

The evidence amply warrants the conviction of appellant, and the judgment appealed from is so manifestly correct that it should be affirmed. Code 1892, § 1741, relates to a failure by a defendant to testify on his trial proper and not to incidental or preliminary hearings.

OPINION

TERRAL, J.

Bunckley was indicted and convicted of the larceny of six hogs of the value of thirty dollars, and sentenced to the penitentiary. The evidence offered to convict the defendant consisted of proof that the hogs of Pool recently lost by him were found in the pen of Bunckley, with other criminating circumstances.

Upon the trial of the case in the circuit court the prosecuting witness, Pool, in answer to a direct inquiry of the district attorney calling for such answer, stated that there was a preliminary trial of the case and that Bunckley did not there, or at any time, make an explanation of his possession of the hogs. The question and answer were broad enough to cover the fact that Bunckley had not testified upon the preliminary investigation, and there offered an excuse for his being found in the possession of the hogs. Other like testimony of other witnesses...