Davis v. State

• Decision Date: 20 June 1898
• Citation: 23 So. 770,75 Miss. 637
• Court: Mississippi Supreme Court
• Parties: AMOS J. DAVIS v. THE STATE OF MISSISSIPPI

23 So. 770

75 Miss. 637

AMOS J. DAVIS v. THE STATE OF MISSISSIPPI

Supreme Court of Mississippi

June 20, 1898

March 1898

FROM the circuit court, first district of Hinds county HON. ROBERT POWELL, Judge.

The appellant and one Baxter were jointly indicted for unlawfully selling whisky; the evidence was confined to a sale made by McCracken, as agent of defendants, to one Roach.

The first instruction for the state was in these words, viz "1. The court instructs the jury that on a trial of two or more persons jointly indicted, the jury may render a verdict of guilty or not guilty as to one of the defendants and as to the other they may disagree, and by the court be discharged, without a verdict as to all, should they be unable to agree as to all."

The first instruction for the defense was as follows, to wit:

"1. The indictment in this case is a joint indictment, and cannot be sustained unless there be a sale by a joint agent of Davis and Baxter; and, in order to convict defendants, it must be shown to the satisfaction of the jury beyond any reasonable doubt, [1] that a sale was made of the whisky; [2] that this sale was made to Roach; [3] that it was made by John McCracken; and [4] that McCracken, at the very time he made the sale to Roach, if he did make such sale, was the agent of Davis and Baxter."

The verdict of the jury found appellant guilty; the jury, being unable to agree as to Baxter, were discharged, and a second trial directed as to him. A judgment and sentence was entered upon the verdict against appellant, from which he appealed to the supreme court.

Judgment reversed and cause remanded.

Calhoon & Green and Williamson & Potter, for appellant.

The first instruction given at the instance of the state is in direct and irreconcilable conflict with the first instruction granted at the instance of the defendant, and in reference to the very vital spot of the case. The first instruction for the state tells the jury that on this trial they may render a verdict of guilty or not guilty as to one of the defendants, and as to the other they may disagree, and, by the court, be discharged without a verdict, should they be unable to agree as to all. So when the court comes to consider that this is a joint offense charged, and when it comes to consider that every part of the evidence in the case submitted on the part of the state went to show joint liability, it will see the gravity of the error in giving the first charge asked by the state, and its great prejudice to the defendant. The mere fact of the conflict with the first charge for the defense should reverse the case, where the evidence is so conflicting. Miss. C. R. R. Co. v. Miller, 40 Miss. 45; So. R. R. Co. v. Kendricks, 40 Miss. 374; Herndon v. Henderson, 41 Miss. 584; Horse v. Fultz, 13 Smed. & M., 39 [Miss.]; Chapman v. Copeland, 55 Miss. 476; Cunningham v. State, 56 Miss. 269; Tyler v. State, 69 Miss. 395; Hudson v. State, 73 Miss. 784; Kimbrough v. Ragsdale, 69 Miss. 677. It left the jury without any guide.

The first charge for the defendant is clearly right. As a joint sale is charged, a joint sale had to be proved. McCracken, who made the sale, was or was not the agent of both defendants. We insist that it is inescapable, and that this case should be reversed because of the error of giving the first charge for the state. The two men were jointly charged with a joint offense, and the evidence was directed to the fact of its being a joint offense, and the court will note the fact that it is impossible, under the proof, that one should be guilty and the other innocent, and, therefore, under the evidence, in the case as presented by the state, directed at both, they had the right to demand that the joint charge should be believed by the jury before they could convict. It would be as well to hold that, where two are indicted for adultery, one might be acquitted and the other convicted, as to hold that, where a joint sale is charged, there can be a conviction of one and an acquittal or mistrial as to the other. This question is well considered in Black on Intoxicating Liquors, sec. 502, and the authorities there cited, to which we invite the special attention of the court.

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

The appellant claims that in this case they could not convict one without the other; certainly this is not such an offense under the law that both have to stand or fall together. This is not a case of unlawful cohabitation, nor is it a case of conspiracy. The court will also bear in mind, in the consideration of this case, they are dealing with a misdemeanor, and not a felony.

Argued orally by S.S. Calhoon and C. M. Williamson, for appellant, and by W. N. Nash, attorney-general, for the state.

WHITFIELD J., TERRAL, J.

OPINION

WHITFIELD, J.

The appellant in this case was jointly indicted with one Baxter for a sale of intoxicating liquors in violation of law. Only one witness was introduced by the state as to the sale. His testimony was, in all respects and in every detail, identically the same against one defendant as against the other. And yet the jury, trying both together, on an indictment charging a single sale, on evidence equally affecting both, delivered by the same witness--there being but this one witness as to the sale--convicted one and disagreed as to the other. We have found but three cases directly in point: State v. Laurens Co. , Harper [S.C.] 183; Turner's case , 1 Sid. [English], cited by Mr. Bishop, 1 Bishop's New Crim. Proc., note 1, at p. 656; and State v. Henry Wilson and James Davis , 3 McCord 187.

In the first case, the two parties were indicted jointly for grand larceny, tried before the same jury on exactly the same evidence, and one was convicted of petit larceny and the other of grand larceny. The court held that the verdict must be set aside as inconsistent, on the express ground that the offense "charged against each was the same, and the evidence equally affected both." The third case cited holds the same doctrine on the same state of case, and the reasoning is clear and unanswerable. "Two persons equally concerned in stealing the same article cannot be guilty of different offenses. For although a jury have an almost unlimited power of valuing stolen property at what they please, so as to bring the case within petit larceny, they cannot value it at one price in the hands of one man, and at another price in the hands of another who is equally concerned in the transaction. . . . The prisoners have either been guilty of two distinct offenses, and, therefore, ought not to have been indicted together, or they have been guilty of the same crime, and should have been convicted of the same. The verdict, therefore, is inconsistent, and must be set aside." In Turner's case, several were jointly indicted for burglary, and it was held that the jury could not find one guilty of burglary and the other of larceny only. It was not meant that this could not ordinarily be done, but, as Mr. Bishop points out, that it could not be done on the facts in that case. "There, " says Mr. Bishop, "the very nature of the case precluded such a finding, for the evidence was the same as to all."

Now, this observation of Mr. Bishop's furnishes the key to the solution of the peculiar case before us. Of course, as a matter of pleading, two may be jointly indicted for the same offense, whether the offense be in its nature joint or not. And, on a joint trial before the same jury, where the offense is not in its nature joint, one may be convicted and the other acquitted, or one may be convicted and the jury disagree as to the other, provided the evidence warrants the difference in the results. But where there is but one witness, and his testimony equally affects both, it is simply impossible that a different result can be legally reached as to the two. If there were two witnesses as to one, and one as to the other, or if the testimony of a sole witness went further against one than the other, the jury might convict one and acquit the other, or disagree as to him, because there the evidence does not equally affect both, and credibility of the witness is for the jury.

The general rule that where two are jointly indicted for the same offense, it not being in its nature a joint offense, the jury may acquit one and convict the other, or disagree as to the other is, of course, admitted. That is a mere rule of pleading and practice. They may, but when? Only when the evidence warrants it. They may believe one witness and disbelieve another; they may accept circumstances against positive testimony; where there is the slightest difference in the testimony as between the two, they weighing that testimony may make the difference. But in a case like this, where the whole testimony is that of a single witness in every particular the same against one as the other, it is not legally possible that a verdict which distinguishes is a response to the evidence.

As stated, the general rules are admitted. See them set out in 1 Bishop's New Crim. Proc., secs. 1036, 1037, and note. Offenses may be joint in their nature--as, conspiracy affray, unlawful assembly, adultery, fornication, etc. Here, ordinarily, one cannot be guilty and the other innocent. Yet, here it may depend on which one. For if more than two be indicted for conspiracy, or more than three for a riot, one may be convicted, the other being dead or not arrested, or one may be convicted and others acquitted, provided the evidence shows that the party convicted was guilty with others indicted, but not then tried, of committing the particular offense. 1 Bishop's New Crim. Proced., secs. 1022, 1023. The correctness of the result here, too, depends on the evidence, Klein v. People , 31 N.Y. 229,...