Elliott v. State
| Decision Date | 05 June 1939 |
| Docket Number | 33639 |
| Citation | 185 Miss. 381,189 So. 796 |
| Court | Mississippi Supreme Court |
| Parties | ELLIOTT v. STATE |
APPEAL from the circuit court of Madison county HON. JULIAN P ALEXANDER, Judge.
Henry Elliott was convicted of the grand larceny of a steer and he appeals. Reversed and remanded.
Reversed and remanded.
Lee M Russell, of Jackson, for appellant.
What fatal error it was to allow the circuit clerk and the sheriff testify to all this prejudicial matter about what the defendant did as to change of his plea, and all allowed by the court, when the record itself showed that no such thing happened. Are men convicted and sentenced to prison or hanged by what somebody "heard" or "said" happened? Why not let the record speak; the solemn judgments of the courts hang people and place them in the penitentiary and that alone. Yet, this sort of damaging testimony, long drawn out before a jury that knows no law, except as allowed to be presented by the court, as was in this case, was dinned into their ears by these two witnesses, Randel and James, officers of the court and well known to all jurors, and with the court's sanction as being competent and, therefore, most any jury would convict believing that once he entered a plea of guilty, he would know and therefore he would still be guilty regardless of whether there was any other proof to connect him with the case.
The average juror and the average layman are always willing to stand upon a confession, or some admission against interest and render punishment without any other investigation. And, regardless of that the record showed in this matter they, the jurors, had heard from the lips of these officers, under sanction of the court, for all intents and purposes, a plea of guilty, they need no more-- law or no law.
The burden of proof is always on the state to prove every essential element of the crime charged.
Page v. State, 160 Miss. 300, 133 So. 216.
The burden of proof never shifts.
Hampton v. State, 99 Miss. 176, 54 So. 722.
Circumstantial evidence should be acted upon with great caution.
While there was no confession in the legal sense as we view the record, yet, if there be a reasonable doubt as to whether a confession is free and voluntary, it must be excluded.
Ellis v. State, 65 Miss. 44, 3 So. 188; Williams v. State, 72 Miss. 117, 16 So. 296; Lee v. State, 137 Miss. 329, 102 So. 296; Foster v. State, 145 Miss. 116, 110 So. 361.
A confession is distinguishable from an admission of facts from which guilt may be inferred.
Pringle v. State, 108 Miss. 802, 133 So. 216.
A confession not corroborated by independent evidence of the corpus delicti is not sufficient to support a conviction of felony.
5 Miss. Digest, page 159, sec. 535 (1).
A confession of accused is not alone sufficient to prove corpus delicti.
Jenkins v. State, 54 So. 158, 98 Miss. 717; Bolden v. State, 54 So. 241, 98 Miss. 723.
Defendant's explanation of a homicide, not contradicted directly or by fair inference, must be accepted as true.
Bowen v. State, 144 So. 230, 164 Miss. 225.
A conviction cannot be predicated upon suspicion.
City of Hazlehurst v. Byrd, 57 So. 360, 101 Miss. 57; Jobe v. State, 61 So. 826, 104 Miss. 860; Williams v. State, 98 So. 338.
The peremptory instruction should have been given.
E. R. Holmes, Jr., Assistant Attorney-General, for the state.
We submit that the testimony of McRooney alone was sufficient to sustain the jury's verdict. However, the record discloses that appellant did not make a motion for a new trial in the court below and hence this question as to the sufficiency of the testimony cannot be raised in this court.
Justice v. State, 170 Miss. 96; Bryant v. State, 172 Miss. 210.
It is competent to show that the defendant entered a plea of guilty whether such plea was entered in the court below and an appeal taken therefrom, or whether, as in this case, the plea of guilty was entered and subsequently withdrawn, just as it is competent to use the testimony of an accused taken at a former trial against the accused in a subsequent trial for the same offense.
In addition to the foregoing, however, we point out that the record itself shows that the defendant agreed to enter a plea of guilty at the January term of court and by such agreement obtained a continuance, and that at the January term of court he moved the court to set aside such plea or agreement and allow him a trial on the merits. The motion to set aside was sustained.
Argued orally by Lee M. Russell, for appellant.
From a conviction of the grand larceny of a steer, this appeal is prosecuted. The evidence was largely circumstantial, except for the fact that the state was permitted to offer evidence as to an agreement had at a former term of the court, whereby the appellant was to enter a plea of guilty upon the understanding that he would receive a sentence of only one year in the state penitentiary, and that the case was to be continued for that term in order that the sentence might not be imposed and take effect until the following term of the court. The minutes of the court at the former term disclosed only that the appellant was arraigned, entered a plea of not guilty, and that the case was continued by agreement for the term. The circuit clerk was offered as a witness by ...
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