Devine v. State

• Court: Mississippi Supreme Court
• Writing for the Court: SMITH, C. J.
• Citation: Devine v. State, 132 Miss. 492, 96 So. 696 (Miss. 1923)
• Decision Date: 11 June 1923
• Docket Number: 23270
• Parties: DEVINE v. STATE

96 So. 696

132 Miss. 492

DEVINE v. STATE

No. 23270

Supreme Court of Mississippi

June 11, 1923

LARCENY. One aiding and assisting thief in making away with property after knowledge that it is stolen guilty of "larceny."

Larceny is a continuous offense, and is being committed every moment of the time during which the thief deprives the owner of the stolen property of its possession; consequently a person who aids and assists the thief in making away with property after and knowing that it has been stolen is guilty of "larceny."

HON. R S. HALL, Judge.

APPEAL from circuit court of Jones county, HON. R. S. HALL, Judge.

Roy Devine was convicted of grand larceny, and he appeals. Affirmed.

Affirmed.

W. B Collins, for appellant.

We presume that no one will claim that under the common law a person could be tried and convicted as principal when he was only an accessory after the fact. And we make this argument admitting for the sake of argument that the defendant was not entirely clear of wrongdoing in the matter, after the car was stolen. If, under the theory of defendant, defendant, if guilty of anything, was only guilty as an accessory after the fact; he could not be convicted as a principal, unless the statute makes that the law. We submit that section 751, Hemingway's Code, section 1026, Code of 1906, an accessory before the fact can be tried and convicted as a principal, but this could not be done under the common law. Under the common law an accessory after the fact is guilty of an independent crime from the principal and could not be tried as principal. This is true even under section 752 of Hemingway's Code and section 1027, Code of 1906. Then, under the testimony of all the witnesses in this case except Jesse Carter, and we submit there is not enough in that to make him guilty of an accessory before the fact, defendant, if guilty of anything, was only guilty as an accessory after the fact. The car was stolen, taken and carried away before Roy Devine ever saw it and all the witnesses say that. There is not one particle of testimony of any other person than Jesse Carter that Roy Devine, even counseled or advised in the theft, and he admits that he had ofttimes said Roy knew nothing about it until after the stealing.

On page 8 of the record the state was given this instruction: "The court instructs the jury for the state that if you believed from the evidence in this case beyond a reasonable doubt, that Roy Devine, in district No. 2, Jones county, Mississippi, got into the car in question at a time when he knew that the said car was being unlawfully and feloniously taken, stolen and carried away in said district of Jones county, Mississippi, for the purpose of aiding and assisting in such taking away if any there was, then under the law the defendant is guilty as charged and this is true even though you may further believe that the defendant was not present when the car was first started and knew nothing of it being started away."

This instruction tells the jury that the defendant can be convicted of larceny, if he was only guilty as an accessory after the fact. This is not the law. All the testimony shows that defendant got in the car after it had been moved by Jesse Carter and Stoggie Wansley from the Y. M. C. A. and run to Devine's home, several blocks away and this instruction tells the jury that if they believe that when he got in this car at his home, after the car had already been stolen and carried away, with the purpose of assisting in carrying it away, further, then he is guilty of larceny. That is not the law. No authority, we venture to say can be found upholding that as the law. On the other hand the converse of the instruction is the law and the only instruction correctly announcing the law, was asked by the defense and is found on page 13; there are two of them: "The court instructs the jury for the defendant that unless you believe from the evidence in this case beyond a reasonable doubt and to a moral certainty that the defendant, Roy Devine, aided or assisted in the original taking of the car in question from the place where its owner left it, then it will be your sworn duty to find the defendant not guilty, even though you may believe he later learned that Jesse Carter and Stoggie Wansley had stolen the car and that defendant aided or assisted them in escaping with the car." This instruction was refused by the court, and the following: "You are further instructed for the defendant that if you believe from the evidence that Jesse Carter and Stoggie Wansley stole the care from where it had been left by the owner, without the aid or assistance of the defendant and carried it to the home of defendant and induced him to go with them to Gulfport, then you must, under your oaths, find the defendant not guilty, even though you may believe that the defendant was assisting them to escape with full knowledge that the car had been stolen; and if you have a reasonable doubt that this is the way the theft happened, then it is your sworn duty to find the defendant not guilty." This instruction was also refused. Defendant was given no instruction embracing this theory of the case, but the state was given the converse, which is not the law.

It is our contention, and we think all the law bears us out, that the theft was completed, when the car was moved from the place where the owner left it. If Jesse Carter and Stoggie Wansley had been apprehended on their way from the Y. M. C. A. to Devine's home and the car recovered, no one would argue that they could not be tried and convicted of larceny. The larceny was complete. The crime of larceny was just as surely committed, as if the car had been carried to New York, and just as surely committed, as when they were apprehended near Gulfport. No one would say that they would have to go into Gulfport, nor to Pascagoula, nor to Mobile and sell the car, before they could be convicted. If the crime was not complete when they went around and stopped at Devine's home, where was the crime completed?

25 Cyc., page 19, note 1 gives several illustrations and cites Rex v. Pitman, 2 C. & P. 432, 12 E. C. L. 653 "Thus where a thief snatched an earring from a lady's ear but it caught in the curls of her hair, there was sufficient taking and carrying away to constitute larceny." 1 Leach C. C. 320. Also, "and where a thief went to an inn, intending to steal a horse, directed the hostler to bring out his horse pointing to the one he intended to steal, and the hostler accordingly led out the horse for the thief to mount, this was sufficient taking to constitute larceny." Further; 25 Cyc. 22 B....