Crosby v. State

• Decision Date: 14 June 1937
• Docket Number: 32743
• Citation: 175 So. 180,179 Miss. 149
• Court: Mississippi Supreme Court
• Parties: CROSBY v. STATE

175 So. 180

179 Miss. 149

CROSBY v. STATE

No. 32743

Supreme Court of Mississippi

June 14, 1937

Division A

1. CRIMINAL LAW.

In prosecution for statutory offense of being accessory after the fact to a murder, proof of murder by alleged principal as original proposition was not error, notwithstanding defendant's admission of murder by alleged principal (Code 1930, section 770).

2. CRIMINAL LAW.

Whether murder by alleged principal should be proved as original proposition in prosecution for statutory offense of being accessory after the fact to a murder, wherein defendant admitted murder by alleged principal, rested in trial court's sound discretion, which would not be interfered with in absence of manifest abuse (Code 1930, section 770).

3. CRIMINAL LAW.

Under statute penalizing the aiding of a felon to escape, person cannot be both a principal and an accessory after the fact (Code 1930, section 770).

4. CRIMINAL LAW.

Under statutes, assistance rendered principal before felony is completed to avoid arrest therefor makes person rendering assistance an "accessory before and not after the fact" (Code 1930, sections 769, 770).

5. CRIMINAL LAW.

In prosecution for statutory offense of being an accessory after the fact to the murder of a woman, the state must prove that the alleged principal feloniously killed the woman and that thereafter the defendant, with actual knowledge thereof committed specific acts with intent thereby to enable the alleged principal to escape or to avoid arrest, trial conviction, or punishment (Code 1930, section 770).

6. CRIMINAL LAW.

In prosecution for statutory offense of being an accessory after the fact to the murder of a woman, evidence that defendant was himself a principal in the felonious killing of the woman was not admissible (Code 1930, section 770).

7. CRIMINAL LAW.

In prosecution for statutory offense of being an accessory after the fact to the murder of a woman, evidence that defendant procured pistol with which woman was killed without knowledge or consent of its owner and gave it to murderer, and that defendant, with knowledge that murderer had killed woman surreptitiously returned pistol to the place from which he had procured it, was competent as bearing on defendant's knowledge that murderer had killed woman with the pistol (Code 1930, section 770).

8. CRIMINAL LAW.

In prosecution for statutory offense of being an accessory after the fact to the murder of a woman, evidence that defendant knew when he gave pistol to murderer that murderer intended to kill woman with pistol was admissible (Code 1930, section 770).

9. CRIMINAL LAW.

In prosecution for statutory offense of being an accessory after the fact to the murder of a woman, admission of defendant's confession that he concealed pistol was not error, in view of evidence as to concealment of pistol (Code 1930, section 770).

10. CRIMINAL LAW.

In prosecution for statutory offense of being an accessory after the fact to the murder of a woman, admission of evidence as to defendant's burning of overalls worn by murderer at time of killing was not error (Code 1930, section 770).

11. CRIMINAL LAW.

In prosecution for statutory offense of being an accessory after the fact to the murder of a woman, evidence that defendant at first denied any knowledge of murder when questioned by police shortly thereafter, and that he subsequently admitted that he was present and saw the murder, was not admissible where defendant was charged with the homicide at time of questioning (Code 1930, section 770).

12. CRIMINAL LAW.

In prosecution for statutory offense of being an accessory after the fact to the murder of a woman, instruction that principal in commission of felony cannot thereafter become an accessory after the fact, and that defendant could not be convicted of being an accessory after the fact if he himself murdered woman or assisted another so to do, should have been granted (Code 1930, section 770).

HON. A M. BYRD, Judge.

APPEAL from the county court of Lauderdale county HON. A. M. BYRD, Judge.

Johnny Crosby was convicted of being an accessory after the fact of the murder of Lizzie Marsh, and he appeals. Reversed and remanded.

Reversed and remanded.

Nate S. Williamson, Jesse H. Graham and J. A. Riddell, all of Meridian, for appellant.

Surely there could be no good purpose in introducing evidence as to anything that transpired prior to the killing of Lizzie Marsh in the prosecution of the appellant for being an accessory after the killing except to establish that she had actually been killed and murdered by John Wesley Williams. So when the defendant, by his counsel, admitted in the very beginning that Lizzie Marsh was killed and murdered by John Wesley Williams in Lauderdale County, Mississippi, on the date referred to in the indictment, then it was certainly immaterial, incompetent, irrelevant and highly prejudicial to introduce the character of evidence that was introduced over the objection of appellant as to what transpired between her and appellant and the murderer John Wesley Williams and other people with reference to the pistol about which the witnesses testified, and certain cartridges and gambling games and plans for a big negro social for the purpose of selling whiskey, love affairs between the deceased and the admitted murderer of her, and her illicit relations with him and a negro jail bird, exchanging drinks of liquor, trying to pawn the pistol, trying to leave the pistol with third parties, threats made by John Wesley Williams, the admitted murderer, against the deceased, and exhibitions of the pistol in connection therewith at a time when the appellant was not present, etc.

Counsel for appellant anticipating that the prosecuting attorney would proceed to actually try the appellant again for murder in an effort to convict him of the crime of accessory after the fact, made the above mentioned admissions so that it would not be necessary at all to go into any such testimony in order to lay a predicate for the introduction of evidence as to what transpired after the murder of said Lizzie Marsh.

If the evidence as to what transpired prior to the killing of this woman be stricken out or ignored as if it were not in the record at all, except the naked fact that she was killed and murdered by John Wesley Williams who was duly tried and convicted of murder, then the evidence that transpired after the killing would be so flimsy that the prosecution could not hope for it to receive much consideration at the hands of a jury or a court. The prosecution evidently knew this and insisted upon doing what it did, with the permission of the trial.

Harper v. State, 35 So. 572.

This court will please bear in mind that most of the objections and more especially the objections to the testimony as to what transpired prior to the killing of Lizzie Marsh was objected to by appellant and at various times he requested that his objections be considered as continuing objections to any and all testimony of like or similar character at any time during the trial and the court expressly recognized the objections as continuing objections but overruled them.

Broach v. W. Shoe Co., 21 So. 300.

All through this record from beginning to end will be found remarks by witnesses made concerning statements and confessions of the defendant, John Wesley Williams, which were made out of the presence of the appellant.

In joint indictment for murder, threats made out of presence of accused by co-conspirators before conspiracy is established are inadmissible against accused.

Rich v. State, 86 So. 770, 124 Miss. 272; Manning v. State, 129 Miss. 179, 91 So. 902.

We think that the trial court should not have permitted the testimony taken of the appellant on the trial for murder to have been read in evidence over the objection of defense counsel in the State's case in chief.

Steele v. State, 24 So. 910.

The statements made by and activities of John Wesley Williams after he and Crosby were arrested were not competent because under the admissions of the appellant there was not any issue to be tried as to whether or not he killed and murdered Lizzie Marsh and it was not admissible in any event against the appellant Crosby on the trial of being an accessory after the fact of the same murder.

Lynes v. State, 36 Miss. 617; Osborne v. State, 55 So. 52.

Evidence as to what transpired prior to the death of Lizzie Marsh was incompetent as against the appellant Crosby while being charged as an accessory after the fact to her murder for this further reason: it was impossible for appellant Crosby to do or say anything prior to her death which would warrant the jury in finding a verdict of guilty of accessory after the fact of her murder.

Harell v. State, 39 Miss. 702; Harper v. State, 35 So. 572.

Evidence of statements made or testimony rendered by Johnie Crosby introduced by the State in its case in chief was inadmissible because the corpus delicti of the crime charged in the indictment on which he was being tried, that is of accessory after the fact, had not been proven, in fact was never proven separate and apart from statements and admissions made by and testimony rendered by the appellant, Johnie Crosby, and we think that his statements were such as to exonerate him and show his innocence rather than his guilt, and that the corpus delicti of the crime charged in the indictment has therefore never been proven even with his admissions.

Rayborn v. State, 76 So. 639.

If the evidence of Police Detective Harbour, who was thoroughly impeached, was admissible and was such as the jury had a right to believe, the appellant was entitled to the requested instruction reading as follows: "The court instructs the jury...