Harris v. State

• Decision Date: 04 February 1929
• Docket Number: 27369
• Citation: 153 Miss. 1,120 So. 206
• Court: Mississippi Supreme Court
• Parties: HARRIS v. STATE. [*]

120 So. 206

153 Miss. 1

HARRIS v. STATE. ^[*]

No. 27369

Supreme Court of Mississippi

February 4, 1929

Division B

1. CRIMINAL LAW. Objections to evidence obtained under search warrant must be made when affidavit and warrant are offered in evidence; motion to exclude affidavit and search warrant at conclusion of evidence is too late.

Objections to evidence obtained by means of a search warrant must be made when the affidavit and search warrant are offered in evidence, and, if no objection is then made, the motion to exclude such affidavit and search warrant at the conclusion of the evidence comes too late.

2. CRIMINAL LAW. Jury could not arbitrarily disregard undisputed testimony of defendant's witnesses showing he was not present at place of crime.

Where a defendant offers the testimony of credible and unimpeached witnesses as to his whereabouts at the time the crime was committed, and such evidence shows that he was not present at the place of the commission of the crime and the evidence for the defendant is undisputed by any witness or by circumstances tending to show his presence at the place of the commission of the crime, the jury has no right to arbitrarily disregard the testimony of his witnesses.

3. CRIMINAL LAW. Circumstantial evidence, to warrant conviction must be inconsistent with any reasonable theory of innocence.

In criminal prosecutions depending upon circumstantial evidence the evidence must not only be consistent with the theory of guilt, but must be inconsistent with any reasonable theory of innocence.

4. BURGLARY. Mere presence of stolen goods in house occupied by two persons each capable of committing crime held insufficient to sustain conviction for burglary.

In a prosecution for burglary, the finding of stolen goods in a house occupied by two persons each capable of committing crime and answerable to the law for crime, where the proof shows that one of such persons, occupying such house, was not present at the scene of the crime when it was committed but was at a different place, and there is no proof of a conspiracy nor proof to account for the whereabouts of the other person occupying the house at such time, the mere presence of the goods stolen in the house is insufficient to sustain a conviction.

5. BURGLARY. Evidence held insufficient to sustain conviction for burglary.

Evidence in prosecution for burglary held insufficient to sustain conviction.

HON. J. I. STURDIVANT, Judge.

APPEAL from circuit court of Oktibbeha county, HON. J. I. STURDIVANT, Judge.

Meek Harris was convicted of burglary, and he appeals. Reversed and rendered.

Judgment reversed, and appellant discharged.

Daniel & Greene, for appellant.

Rufus Creekmore, Assistant Attorney-General, for the state.

OPINION

ETHRIDGE, P.J.

The appellant, Meek Harris, was indicted by the grand jury of the circuit court of Oktibbeha county at the October, 1927, term for burglary of a dwelling house occupied by Evanna Riley, in that he took, stole, and carried away from such house certain goods, to-wit, bedding and clothing belonging to one Evanna Riley of the value of five dollars.

The burglary, the proof shows, occurred on the first Sunday night in December, 1926, while Evanna Riley was at church. Her testimony is to the effect that she returned from church about nine o'clock; that before leaving she locked the doors of her dwelling, but upon her return from church she found that the house had been broken into and certain things, including the articles described in the indictment, had been taken away. It does not appear from the evidence that any person was tracked to or from the premises burglarized, nor was the situation, other than as to the condition of the house after the burglary occurred, described by the witness.

On the 16th day of February, 1927, about six weeks after the burglary, an affidavit was made before the justice of the peace that certain property belonging to Evanna Riley was on the 4th day of December feloniously taken, stolen, and carried away, and that suspicion rested upon Meek Harris and Maggie Harris as being guilty of such crime; that such property, or a part thereof, was still in the dwelling house of Meek and Maggie Harris; that upon this information an affidavit and search warrant were issued; and that the officer went to the premises occupied by the defendant and his wife, at night, and found him in bed. The pillow slips, described by the witness, Evanna Riley, were found on the pillows of the bed in which the defendant was lying, also the sheets and other bedding, a lambrequin on the mantel, and some of the woman's clothing was found in a trunk or dresser drawer. All of these articles were identified by Evanna Riley and other witnesses as being her property.

It does not appear that Maggie Harris was indicted or charged with this crime. The defendant proved by two seemingly disinterested witnesses, who were not related to him, that at the time the burglary was committed he was not at the scene of the burglary, but at another person's premises, some twelve or fifteen miles away, from about five o'clock in the afternoon until about ten o'clock at-night. Meek Harris himself testified that he was on such person's premises on said occasion, and further that he was told by his wife, Maggie Harris, that she bought, the goods which were found by the officer from a negro boy by the name of J. D. Swain some time after the burglary was committed. Both the defendant and his wife testified that Swain came to their place some time after the burglary; that, when he approached, the defendant and another man were in front of their dwelling house in conversation, and that Swain had something in a sack or bag which he wanted to sell to him, but that he did not want to buy; that Swain then went into the house where Maggie Harris was and shortly afterwards came out and stated that he had sold her the things. The defendant's statement was corroborated by the other party who was in conversation with him at the time of Swain's appearance, and it does not appear that he was interested or related to the defendant.

Maggie Harris testified that Swain came to her house with the articles which were found therein; that he stated that his mother was moving away and wished to sell such articles; and that she bought the articles from him. Another witness, the mother of Meek Harris, testified that, on or about the same occasion, Swain came to her place and tried to sell her the things; that she told him that she had no money with which to buy the things; and that he then went to Meek Harris' house, but that she did not know what happened up there.

At the time the search was made, the articles were in the house of Meek Harris visible. No effort was made to conceal them, with the exception of some articles of the woman's clothing which were in the dresser drawer or the trunk, as above stated. The rest of the articles were openly displayed. The officer making the search testified that he did not recall any statement of the defendant at the time as to how possession of the goods was obtained.

It appears further that J. D. Swain left the community about the time of the burglary and went to Arkansas, where his mother had moved shortly before the burglary occurred. Swain was introduced in rebuttal by the state, and testified that he did not have...