City of Pascagoula v. Cunningham

• Court: Mississippi Supreme Court
• Writing for the Court: ETHRIDGE, J.
• Citation: City of Pascagoula v. Cunningham, 141 Miss. 604, 106 So. 886 (Miss. 1926)
• Decision Date: 08 February 1926
• Docket Number: 25415
• Parties: CITY OF PASCAGOULA v. CUNNINGHAM. [*]

106 So. 886

141 Miss. 604

CITY OF PASCAGOULA v. CUNNINGHAM. ^[*]

No. 25415

Supreme Court of Mississippi

February 8, 1926

Division B

MUNICIPAL CORPORATIONS. Municipality may not appeal from judgment discharging accused for insufficiency of evidence.

Section 40, Code of 1906; section 16, Hemingway's Code, does not authorize an appeal by a municipality from a judgment discharging a person accused of violating an ordinance on the ground that the evidence is insufficient to prove the case.

HON. D M. GRAHAM Judge.

APPEAL from circuit court of Jackson county, HON. D. M. GRAHAM Judge.

C. L Cunningham was prosecuted by the city of Pascagoula on a charge of violating the Speed Law, and from a directed verdict finding defendant not guilty, the city appeals. Appeal dismissed.

Appeal dismissed.

H. B. Everett, for appellant.

This evidence clearly established the corpus delicti. It was clearly shown that an offense against the law was committed at a given time and place by an implement belonging to the defendant, the motor car. The defendant was present at the trial and if he was not driving his own car, it would manifestly have been an easy matter for him to have shown by his own and the testimony of others this material fact in defense. The prosecutor could not produce his evidence because it had been impossible to identify the persons occupying the car, whose identity was presumably a matter within the knowledge of the defendant, the owner of the car.

It is axiomatic that the possession of stolen goods is evidence of theft against the person having same in his possession. Also that the ownership of the weapon used in an assault and battery, when it is shown that a crime has been committed by the use of such weapon, is strong circumstantial evidence against an owner who declines to explain or furnish any evidence in explanation by which to exonerate himself on a charge of the commission of the crime. It is a case of circumstantial evidence sufficient to produce a moral certainty of guilt to the exclusion of any other reasonable hypothesis and particularly in a misdemeanor of this character. It makes quite as strong a case, it seems to me, as proof in a case of unlawful possession of liquor if the liquor was found on the accused's premises and no explanation of its presence there is offered on defense. Evans v. State, 133 Miss. 663; McElhenny v. State, 135 Miss. 210; Reynolds v. State, 101 So. 485; Kidd v. State, 102, So. 68.

The presumption of innocence in cases of this kind may be overcome to a very large extent by proof of silence and the failure to call witnesses who could testify of their own knowledge as to material facts, 12 Cyc. 385. Even in a prosecution for murder the possession of articles apparently taken from the deceased raises a prima-facie presumption of guilt that must be rebutted or explained away by the accused. Wilson v. U. S., 162 U.S. 613; 16 S.Ct. 895. On this authority we have, therefore, two elements, the use of the accused's property in the commission of the crime and the failure of the accused to produce evidence in rebuttal or explanation under circumstances that call for such evidence.

Reporter's Note: No brief submitted for the appellee.

OPINION

ETHRIDGE, J.

The appellee, Cunningham, was arrested and tried in the city court on a charge of violating the Speed Law and appealed to the circuit court, where, at the conclusion of the evidence, there was, on motion, a direct verdict to find the defendant not guilty, from which the city has attempted to appeal.

The evidence relied on is that of the marshal and a policeman who saw the license number on the car and followed it in another car and testified that it was going in excess of the speed...