Corn v. State, 43049

Citation250 Miss. 157,164 So.2d 777
Decision Date01 June 1964
Docket NumberNo. 43049,43049
PartiesWilliam Harrison CORN and Walter Henry Godfrey v. STATE of Mississippi.
CourtUnited States State Supreme Court of Mississippi

Cornelius J. Ladner, Bay St. Louis, for appellant.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.

BRADY, Justice.

The appellants were indicted, tried and convicted in the Circuit Court of Hancock County, Mississippi, for the possession of burglary tools and were each sentenced to serve four years in the state penitentiary. From this conviction and sentence, this appeal is prosecuted.

The record discloses that Latham Garriga, a municipal policeman and the deputy sheriff of Hancock County, Mississippi, was employed also as an employee of Porter's Garage, which is located near Bay St. Louis, in Hancock County. On January 5, 1963, when Garriga was working at Porter's Garage and when he was not in uniform, the appellants drove to Porter's Garage in a 1958 Cadillac automobile. They offered to sell Garriga a brand new record player which was still in the case which they had, at a very cheap price. It is to be noted that the appellants drove to where Garriga was working at Porter's Garage, that they approached Garriga about purchasing the record player, and the record further shows that while he was talking with the appellants, who were trying to sell him the record player, that he saw in the back of the car on a quilt on the floor a sledgehammer to which a cold chisel had been welded, and another tool which could be used as a punch or a crowbar or as wedge. The record discloses that Garriga recognized these instruments as burglary tools. This recognition, coupled with the fact that the appellants wished to sell a new record player very cheap, convinced him that they had likely committed a felony. The record discloses also that the appellants were in a rough looking condition and that possibly they had been drinking. Not being in uniform and, as the record discloses, being unarmed, Garriga advised the appellants that he did not care to purchase the record player but that if they took the record player to the Phillips 66 Service Station located on Main Street out on Highway 90 from Bay St. Louis, probably they could sell the record player there. Garriga testified that he deliberately sent the appellants to the Phillips Service Station in order that he might call Deputy Sheriff Gerald Price, Jr., and Garriga did call Gerald Price, Jr., who immediately came to Porter's Garage in his automobile, where Garriga joined him, and together they drove to the Phillips 66 Service Station which is operated by one C. T. Jones. Upon arriving at the Phillips 66 Service Station, they found the Cadillac automobile into which $2 worth of gasoline was then being put. They learned also that the appellants had sold the record player to Jones for the sum of $3 cash plus $2 worth of gasoline. Garriga borrowed Price's pistol, arrested the two appellants, forced them to stand outside the automobile with their hands thereon, and proceeded to search them. In the pocket of appellant Corn he found the earpiece of walkie-talkie. The record player was obtained from Jones, and the appellants were taken to the county jail where they were incarcerated. They were indicted for the possession of burglary tools, tried and convicted. They were sentenced to four years each in the state penitentiary. From this conviction and sentence, this appeal, as aforesaid, is prosecuted.

There are but two errors assigned by the appellants, the first being that the trial court erred in permitting the introduction of any testimony given by the state against the appellants, which testimony and evidence was secured without a search warrant in violation of Sec. 23 of the Miss. Constitution of 1890; and second, that the court erred in overruling the motion of the appellants for a directed verdict in their favor after the state had rested its case. Insofar as this opinion is concerned, both assignments of error can be and are being considered simultaneously, since the second assignment of error rests largely, if not completely, upon the correctness of the first assignment of error.

Objections were duly made by the appellants to the introduction of any of the implements which were found in the Cadillac automobile being driven by the appellants. The trial court properly excluded all items except the crowbar, the earphone, the sledgehammer with the chisel welded upon it and, of course, the record player. First, considering whether or not these instruments were adaptations of tools or implements for breaking and entering, the record sufficiently shows that they were. Not only did officer Garriga and deputy sheriff Price testify that they were burglary tools and were instruments used by persons for breaking and entering, but also officer Ford O'Neal, who had had eleven years experience in investigation of burglaries with the Identification Bureau of the Mississippi Highway Patrol, positively testified that the crowbar could be used for jimmying doors or for ripping safes and that the sledgehammer with the cold chisel welded to it was the type of instrument very frequently used in going through blocks, going into vaults, like in a schoolhouse, and also the end of the sledgehammer on which the chisel was welded was used for ripping safes; that this type of tool was commonly found in the possession of burglars.

This testimony on the part of the state is uncontradicted by the appellants. Possession of these tools was known to the appellants because they were lying on a quilt on the floorboard in the back of the car and were seen by them, though the appellant Godfrey denied any knowledge of the tools or the ownership thereof; nevertheless, the fact still remains that the jury could consider whether or not the appellants knew the tools were there and for what purpose the tools could be used since on the edge of the sledgehammer where the chisel was welded there were particles, or substance which was identified as resembling fireclay, a substance commonly used in insulating...

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10 cases
  • Lathers v. United States, 24226.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 23 Mayo 1968
    ... ...         David Matthew Lathers, a resident of Arlington, Virginia, was arrested by state officers in Jackson, Mississippi, after attempting to sell a truck which was in his possession and ... Cf. Barnett v. United States, 5 Cir. 1967, 384 F.2d 848, 855 (at 4). 2 The case of Corn v. State, 1964, 250 Miss. 157, 164 So.2d 177, is closely in point. The defendant Corn was arrested ... ...
  • United States v. Pearson
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 4 Noviembre 1971
    ... ... Both men were found in a vehicle which had been stolen in another state less than 48 hours previously, and two rifles and suspicious tools were found in the vehicle. An ... , and a wire-apparatus described as a burglar alarm jumper were seen on the rear floorboard; Corn v. State, 1964, 250 Miss. 157, 164 So.2d 777, possession of several tools including a sledge hammer ... ...
  • Mladinich v. Kohn
    • United States
    • Mississippi Supreme Court
    • 1 Junio 1964
    ... ... ' Such actions by Kohn 'constituted doing business and performing services or work in the State of Mississippi,' and by such activities he appointed the Secretary of State of Mississippi as his ... ...
  • Fisher v. State
    • United States
    • Mississippi Supreme Court
    • 17 Noviembre 2022
    ... ... officers' eyes, which cannot commit a trespass ... Wilson v. State , 186 So.2d 208, 211 (Miss. 1966) ... (citing Corn v. State , 250 Miss. 157, 164 So.2d 777, ... 779 (1964)). "The eye cannot be a trespasser. So, also, ... the ear cannot be a trespasser, ... ...
  • Request a trial to view additional results

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