Gates v. State

• Decision Date: 08 June 1931
• Docket Number: 29427
• Citation: 160 Miss. 479,135 So. 189
• Court: Mississippi Supreme Court
• Parties: GATES v. STATE

135 So. 189

160 Miss. 479

GATES v. STATE

No. 29427

Supreme Court of Mississippi

June 8, 1931

Division B

1. CRIMINAL LAW. Testimony of accomplice, although convicted of same offence, will sustain conviction, where not improbable upon its face, even if not corroborated.

The testimony of an accomplice, although convicted of the same offence and serving a prison term, is sufficient to sustain a conviction, where it is not improbable upon its face although no corroboration may exist as to such testimony.

2. CRIMINAL LAW. Accomplice's testimony, when corroborated will sustain conviction, although accomplice admits falsity of testimony at another trial, in absence of conviction of perjury.

The testimony of an accomplice, when corroborated by other evidence, is sufficient to sustain a conviction, although the accomplice admits that he testified falsely in another trial there being no conviction of perjury for such false swearing.

3. CRIMINAL LAW. Instructions should embody hypothesis constituting offense or element thereof directly and positively; instruction is not erroneous because stating facts by way of recitals in certain respects, where it as a whole makes clear facts required to be proved beyond reasonable doubt.

Instructions to the jury should embody hypothesis constituting the offense or elements of the offense directly and positively, but a judgment will not be reversed for stating facts by way of recitals in certain respects, if the instruction as a whole makes clear what proof is required or what facts are to be proved by the evidence beyond a reasonable doubt.

HON. W J. PACK, Judge.

APPEAL from circuit court of Jones county, First district, HON. W. J. PACK, Judge,

Earnest Gates was convicted of burglary, and he appeals. Affirmed.

Affirmed.

Collins & Collins, of Laurel, for appellant.

The court will observe from the state's case that there is no testimony tending to connect and in any way to connect the defendant with this burglary except the testimony of Red Seals. If Red Seals' testimony were eliminated from the case the state would not have had enough facts to have gone to the jury.

The state's case is built around a confessed thief and perjurer and an accomplice, as as he says, in the crime charged, and, therefore, slight error in this record should reverse this case.

The court erred in giving the following instruction:

"The court instructs the jury for the state that if you believe beyond a reasonable doubt from the evidence in this case that the defendant, Earnest Gates, in May, 1930, in the First district of Jones county, state of Mississippi, a certain camp car, Southern B-6565, the property of the New Orleans & Northeastern Railroad Company, a corporation, the same being then and there used and occupied by one H. W. Ekes in which said camp car there were goods, wares and merchandise to-wit: bacon, butter and other merchandise kept for use and deposit, feloniously and burglariously forcibly bursting and breaking an outer door of said car with intent the goods and chattels in said camp car then and there being and then and there being kept for use and deposit, then and there feloniously unlawfully and burglariously to take, steal and carry away; and then and there in said camp car five sides of bacon meat of the value of seventeen dollars and fifty cents, twelve pounds of butter of the value of six dollars, of the aggregate value of twenty-two dollars and fifteen cents of the property of H. W. Ekes in said camp car and then and there being kept for use and deposit then and there feloniously and burglariously did take, steal and carry away as charged in the indictment then it is your sworn duty to find the defendant guilty as charged in the indictment.

The said instruction is erroneous because it does not charge the jury that the defendant must feloniously, unlawfully and burglariously burst and break open the said camp car before he would be guilty of burglary.

E. B. Ethridge, Special Agent, for the state.

The instruction for state though grammatically awkward, does not prejudice nor harm appellant.

The case of Charlie Collins v. State, which was passed upon by this court in February, 1931, and which appears in 132 So. 344, presented the same instruction as the one here. In fact, with the possible exception of the change of one or two words the instructions were identical. In that case the court refused to consider appellant's contention that there was error in the granting of such instruction.

This court will not disturb findings of lower court based on competent and convicing testimony.

It has been held time and time again by this court that where there was a conflict in evidence it was peculiarly a question for the decision of the jury and that even though it may be conceded that the appellate court sitting as a jury would have come to a different verdict, no reason for...