Fletcher v. State

• Decision Date: 11 December 1933
• Docket Number: 30932
• Citation: 168 Miss. 361,151 So. 477
• Court: Mississippi Supreme Court
• Parties: FLETCHER v. STATE

151 So. 477

168 Miss. 361

FLETCHER v. STATE

No. 30932

Supreme Court of Mississippi

December 11, 1933

Division B

1 LARCENY.

In prosecution for grand larceny of heifer, evidence held to support conviction.

2 LARCENY.

In prosecution for grand larceny of heifer, instruction that possession of recently stolen property was circumstance authorizing inference of guilt, in absence of reasonable explanation, held properly given, under evidence.

HON. S F. DAVIS, Judge.

APPEAL from circuit court of Washington county HON. S. F. DAVIS, Judge.

E. L. Fletcher was convicted of grand larceny, and he appeals. Judgment affirmed.

Affirmed.

Roy Stockdale, of Greenville, for appellant.

It is always insufficient where, assuming all to be proved which the evidence tends to prove, some other hypothesis may still be true, for it is the actual exclusion of every other hypothesis which invests mere circumstances with the force of truth. Whenever, therefore, the evidence leaves it indifferent which of several hypotheses is true, or merely establishes some finite probability in favor of one hypothesis rather than another, such evidence cannot amount to proof, however great the probability may be.

Sorrells v. State, 130 Miss. 305; Hogan v. State, 127 Miss. 407; Algheri v. State, 25 Miss. 584; Morris' State cases, p. 658; Jackson v. State, 118 Miss. 602, 79 So. 809.

The court erred in granting the following instruction: "The court instructs the jury that the possession of property recently stolen is a circumstance which may be considered by the jury and from which, in the absence of a reasonable explanation, the jury may infer guilt of larceny."

In the instant case the state failed to prove such recent possession in that it failed to prove the date of the alleged crime, and in so failing we believe the granting of this instruction was improper.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

There is no dispute in the record that the possession was recent, but, on the contrary, it is admitted by appellant, himself. In this state of case the state asked for and obtained the instruction which is objected to.

Wiley v. State, 129 Miss. 196.

The circumstances surrounding this case are so strangely similar to the circumstances of the Wiley case, supra, that if the court held there was sufficient evidence to go to the jury in that case, and holding that, under the circumstances, the jury had a right to disbelieve the explanation entirely, then, certainly, under the facts of this case, the court should hold that the jury had a right to disbelieve and disregard the testimony of defendant with reference to how he came into possession of this cow.

OPINION

Ethridge, P. J.

Appellant, E. L. Fletcher, was indicted, tried, and convicted of grand larceny in the stealing of a Guernsey heifer from G. B. Walker, and was sentenced to serve three years in the state penitentiary.

G. B. Walker was the owner of a herd of Guernsey, registered, cattle, and the heifer stolen was about two years old, and was valued tit two hundred dollars.

On the morning of May 22, 1933, this heifer was found by Lewis Taylor, a butcher in Greenville, Mississippi, tied to the fence of his slaughter pen. As cattle were frequently brought there for slaughter, he took the heifer and placed her in his lot. Mee Son, a Chinese grocer and market man in Greenville, came to the slaughter pen and directed Taylor to butcher the heifer, which was done. Mee Son testified: That Fletcher (appellant here) came to his home before he had gotten up on the morning of May 22, and that Mee Son's wife told Fletcher he was not up, and instructed him to take the heifer to the slaughterhouse. This Fletcher did, and then returned to the store of the Chinese and waited until the said Mee Son awoke. Mee Son then went to the slaughterhouse to inspect the heifer, and on returning to the store took up with Fletcher the question of price. That Fletcher insisted on twenty dollars, which Mee Son refused to pay, offering to pay fifteen dollars, which was paid to Fletcher by check, and Mee Son then instructed the said Lewis Taylor to butcher the heifer. The heifer being missed from the herd, search was instituted, and the hide was found at a hide and fur company in Greenville, and was admitted, by counsel for the appellant, to be the hide from the heifer owned by Walker.

Lewis Taylor testified that he went to his place of business between five and six on the morning of May 22, 1933, fixing the time by the blowing of a whistle in Greenville, which blew regularly at a given time, and that when he arrived the heifer was tied to his fence, as stated.

A warrant for the arrest of Fletcher was sued out, and on being arrested, he stated to the deputy sheriff that he had bought the heifer from a...