Cole v. State

• Decision Date: 08 June 1953
• Docket Number: No. 38731,38731
• Citation: 65 So.2d 262,217 Miss. 779
• Parties: COLE v. STATE.
• Court: Mississippi Supreme Court

Page 262

65 So.2d 262

217 Miss. 779

COLE v. STATE.

No. 38731.

Supreme Court of Mississippi.

June 8, 1953.

Roy E. Johnson, Senatobia, Smallwood, Sumners & Hickman, Oxford, for appellant.

J. P. Coleman, Atty. Gen., by George H. Ethridge, Asst. Atty. Gen., for appellee.

ETHRIDGE, Justice.

Appellant, W. B. Cole, alias W. B. Boyd, was convicted in the Circuit Court of the First Judicial District of Panola County of grand larceny, for the theft of three automobile tires and an electric power saw, belonging to the Short Planting Company, a partnership. The only evidence in the record connecting appellant with the theft was the testimony of an alleged accomplice, Willie Hightower, and a confession by appellant.

The theft apparently occurred around January 24, 1952, in the nighttime at approximately 10:00 P.M. Billy Shepherd, assistant manager of the Short Planting Company, testified that he lived on the plantation and within seventy-five feet of the general repair shop building of the plantation; that 'sometime in January' and on a Saturday afternoon the tires and saw which were later stolen were in the shop, but on Wednesday or Thursday of the following week he again worked in the shop and they were gone; that no one had been authorized to remove this property and that he had not seen it since that time. He said that Charles Hudson, a colored blacksmith, worked in the shop most of the time; that Willie Hightower would help him from time to time; that appellant had worked in the shop for two days during the week preceding the time the property was missing; that he had seen appellant hanging around the shop, and that on one occasion appellant came after some lumber; that appellant had been living on the place only a short time, but had been with Mr. Short for five or six years. Shepherd testified that on a Wednesday or Thursday night following the Saturday at which he had last seen this property, he heard a noise outside around ten or eleven o'clock, so he ran out the back door and shot his shotgun toward the noise; that he turned the floodlights on and 'heard some mules running', heard a door slam but did not hear any person running. He discovered the tires were missing two days after that occurrence. None of Shepherd's testimony connects appellant with the crime. He simply said that appellant had been around the shop on several occasions. He also told of the sounds outside which he heard one night, but does not connect appellant with them.

Willie Hightower testified that on January 24th he was working for Sheperd on the plantation driving a truck; that on that night, Thursday, between nine and ten o'clock P.M. he and appellant went over to the plantation shop. Hightower said that appellant had solicited him four times to help him steal the tires and that he agreed on the fourth occasion; that one day in the shop appellant asked the witness to help him do this, saying that he would pay him something to do it; that the witness and appellant drove to the back of the barn in a pickup belonging to appellant or his father; that appellant filed the latch or lock on the shop and that they stole four tires and the electric saw. Hightower said that appellant stated he wanted to put the tires on his pickup and wanted the saw for his father; that after they left the shop they heard a shot up at the house, but they were then down under the hill; that they loaded the property in the pickup, and appellant let Hightower out at his house and appellant drove on with the tires and saw; and that appellant said he would give the witness something to help him but he never paid him. Hightower admitted that he had recently confessed to stealing some cattle along with his brother; that his brother had driven down from Chicago in his car and after the cattle theft had driven back to that city. Hightower said that appellant had nothing to do with any cattle theft; that he had told the sheriff of appellant's implication in the theft from the shop after he had been arrested for cattle stealing; that his brother had come down from Chicago after he and appellant had stolen the tires and saw, and that the cattle theft occurred about two weeks thereafter; that when appellant was arrested and brought to the jail, he told the witness in the presence of the sheriff that Hightower should not have framed him concerning the theft. Hightower testified that appellant and his father had come over to the shop one time to get some lumber, and that was the time when appellant first asked the witness to help him steal the tires; that when appellant asked him to do that Charlie Hudson was in the shop and was close enough to have heard the conversation. Charlie Hudson was not offered as a witness. Appellant did not know where the tires or saw were.

The State then introduced a written confession signed by appellant. The sheriff and E. J. Ainsworth, special cattle investigator, testified that it was free and voluntary. Appellant testified that although he was not physically assaulted, the officers had threatened to beat him up and had interrogated him regularly over a period of several days before he signed the confession; and that he was in fear and was intimidated into making the confession. The trial judge found that it was voluntary and admitted it in the evidence. The confession was typewritten in question and answer form. It stated that appellant and Hightower went over to the shop late one night and got the tires and saw; that someone turned on a light and shot out that way, but he and Hightower had left and were going toward the truck about 100 yards down in the pasture at the time; that they put the stolen property in the truck and drove down the road, where appellant let Hightower out; that appellant then drove on over to a gravel pit and hid the tires near a colored school, close by a little cedar tree; that appellant went there about a week later and the tires and saw were still under the tree, but when he took the sheriff and Ainsworth out there on February 8th they were gone and apparently someone had taken them.

E. J. Ainsworth testified that he had the confession of appellant typewritten and that it was read back to appellant before he signed it; that he had talked to appellant several times before he confessed; that appellant had carried him and the sheriff out in the country and took them to a place where he said the tires and saw were hidden, but that they were not there. Sheriff Darby testified that appellant had guided him and Ainsworth out near a gravel pit where a...