Johnson v. State

• Decision Date: 02 October 1939
• Docket Number: 33638
• Citation: 191 So. 127,186 Miss. 405
• Court: Mississippi Supreme Court
• Parties: JOHNSON v. STATE

191 So. 127

186 Miss. 405

JOHNSON v. STATE

No. 33638

Supreme Court of Mississippi, Division B

October 2, 1939

APPEAL from the circuit court of Madison county HON. JULIAN P ALEXANDER, Judge.

Willie Johnson was convicted of larceny, and he appeals. Reversed and remanded.

Reversed and remanded.

Hilton Berry & Kendall, of Jackson, and Martin & Farr, of Prentiss for appellant.

We most respectfully submit that this case must be reversed on the ground, if for none other, that no ownership of the heifer alleged stolen was proved by the State as alleged in the indictment, unless this Court commits itself to the doctrine that it is not necessary to prove ownership of property on a charge of grand larceny. This Court will not do that, of course.

This Court will not uphold a conviction for grand larceny where ownership of the property alleged as stolen is laid in one person and the proof shows ownership in an entirely different person. That would be charging defendant with commission of one crime and convicting him of an entirely different crime. That would be in violation of his constitutional rights of due process, Sec. 14, Constitution 1890. The doctrine idem sonans is not here involved.

Property and ownership are inseparable. There must be ownership charged, either general or special.

Bishop's New Crim. Law, secs. 788, 789, 790.

Ownership in larceny must be proved as laid.

McGaha v. State, 173 Miss. 829, 163 So. 442; Hughes v. State, 74 Miss. 368, 20 So. 838; McDowell v. State, 8 So. 508.

While we understand the rule to be well settled that a conviction will be upheld on the evidence of an accomplice unless such evidence is improbable or on its face self-contradictory and that the question of the credibility of such testimony, when not unreasonable or contradictory on its face, is for the jury, yet when the State offers immunity to an alleged accomplice and he testifies and is the sole and only witness testifying, as in this case, to the theft of the heifer, the State must prove by this accomplice that the defendant did take, steal and carry away the property as charged in the indictment or the State must fail, and we understand the rule to be that when testimony comes from an accomplice, it must not be of the doubtful kind--it must be positive; and that this Court, exercising its constitutional duty to supervise jury trials, will see that a verdict of conviction does not stand when the proof is wanting in any essential ingredient of the crime charged.

Universal Truck Co. v. Taylor, 164 So. 3; Beard v. Williams, 172 Miss. 880, 161 So. 750; Davis v. McDonald, 178 So. 467.

The State failed to prove the corpus delicti even if there had been no confession offered and failed to prove the corpus delicti aliunde the confession.

We submit that until ownership is proved in larceny the corpus delicti or body of the crime has not been proved.

Code of 1930, secs. 1009, 1010, 1011, 1013, 1014, 1016, 1017; Crabb v. State, 152 Miss. 602.

Before a confession can be offered there must be made proof of the corpus delicti, independent of the confession.

Pitts v. State, 43 Miss. 472; Heard v. State, 59 Miss. 542.

At any rate corpus delicti must be shown aliunde the confession and the confession is not competent to be offered until that predicate is laid.

Rayborn v. State, 115 Miss. 730, 76 So. 639; Williams v. State, 129 Miss. 469, 92 So. 584; Butler v. State, 129 Miss. 778, 93 So. 3; Garner v. State, 132 Miss. 815, 96. So. 743; Floyd v. State, 138 Miss. 697, 103 So. 368.

We respectfully submit that this alleged confession was not freely and voluntarily given.

Fisher v. State, 145 Miss. 116, 110 So. 361; Johnson v. State, 107 Miss. 196, 65 So. 218; Matthews v. State, 102 Miss. 549, 59 So. 842; Jones v. State, 133 Miss. 684, 98 So. 150; Banks v. State, 93 Miss. 700, 47 So. 437; Hamilton v. State, 77 Miss. 675; Williams v. State, 72 Miss. 117; Jordan v. State, 32 Miss. 382; Whip v. State, 143 Miss. 757, 109 So. 697.

The lower court was in error in admitting the confession without testing it on a preliminary hearing in the absence of the jury.

Johnson v. State, 107 Miss. 196, 65 So. 218.

One cannot be convicted of grand larceny without proof of value of the property charged to have been stolen.

Stokes v. State, 58 Miss. 677; Francis v. State, 87 Miss. 493, 30 So. 89.

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

The indictment laid ownership of the stolen heifer in "Mrs. C. C. Hammock." The proof by C. A. Hammock is that the stolen heifer belonged to his mother, Mrs. C. C. Hammock. A witness, Mrs. M. E. Hammock, testified that the heifer belonged to her. The witness, Willie Bell, merely refers to "Mrs. Hammock." C. A. Hammock testified that he lived on his mother's place with her and that her property adjoined Tabor Hammock's. Mrs. M. E. Hammock testified that the stolen heifer was being kept in Tabor Hammock's pasture and that Tabor Hammock was her nephew. C. A. Hammock says that Tabor Hammock was his cousin.

Tabor Hammock, as a witness, merely referred to the owner as "Mr. Hammock, " but said that their places adjoined and that her cattle, including the stolen heifer, used his pasture.

Mrs. M. E. Hammock refers to her son as Alton Hammock. The inescapable conclusion is that Mrs. C. C. Hammock and Mrs. M. E. Hammock are one and the same person. By the same token it appears that C. A. Hammock and Alton Hammock are one and the same person. No doubt the Hammocks were well known to the attorneys representing the state and were no doubt well known to the jury and it did not occur to the prosecution to clear up what otherwise might be a confusing situation for this court. Nevertheless the confusion exists, yet it appears reasonably certain that Mrs. C. C. Hammock was also known as Mrs. M. E. Hammock.

Aside from this, this variance, if it may be called such, was not specifically called to the attention of the trial court, but the objection is made here for the first time. It was the duty of the defendant to call this matter to the attention of the trial court, and, having failed to do so, he will be held to have waived the variance.

Smith v. State, 112 Miss. 248; Horn v. State, 147 So. 310, 165 Miss. 169; Hall v. State, 166 Miss. 331, 148 So. 793; Thomas v. State, 103 Miss. 800, 60 So. 781; Hoskins v. State, 106 Miss. 368, 63 So. 671; Jolly v. State (Miss.), 155 So. 209.

It is a familiar rule of law that where a confession is relied on the corpus delicti need not be established beyond a reasonable doubt, but only to a probability, and, when coupled with the confession, the proof may be considered as establishing the corpus delicti beyond a reasonable doubt. Nichols v. State, 165 Miss. 114, 145 So. 903; Keeton v. State (Miss.), 167 So. 58. This rule was first announced in the case of Heard v. State, 59 Miss. 545, and has been consistently followed by this court since that time. Taking the case as a whole, both for the state and the defendant, it clearly appears that sufficient proof was made.

Carter v. State, 167 Miss. 331, 145 So. 739.

Appellant says that no preliminary inquiry to determine the competency of the confession was had. Appellant is correct as to this. This court was held, however, that the accused is entitled to such an inquiry, if he requests it.

Ellis v. State, 65 Miss. 44; Lee v. State, 137 Miss. 329, 102 So. 296; Jackson v. State, 163 Miss. 235, 140 So. 683.

Under all the testimony, it was a question for the jury as to whether the offense was petit or grand larceny.

OPINION

Ethridge, P. J.

The appellant, Willie Johnson, was indicted and tried in the circuit court of Madison County on the charge of grand larceny, it being alleged in the indictment that Willie Johnson and Willie Bell, late on the county aforesaid, on the 2nd day of January, 1939, did then and there unlawfully, wilfully, and feloniously take, steal, and carry away one Brindle White face heifer of the value of $ 30, the property of Mrs. C. C. Hammock, contrary to the form of Statute in such case made and provided, and against the peace and dignity of the State of Mississippi.

On the trial of the case, Willie Bell, jointly indicted with appellant, testified that he and the appellant took the said heifer of the description named in the indictment belonging to Mrs. Hammock, without giving her christian name or initials.

C. A Hammock was introduced and testified that his mother was Mrs. C. C. Hammock and that she had a heifer of the description named in the indictment which was placed in the pasture of Tabor Hammock, a first cousin of the witness, and that shortly after the heifer was taken he saw it in the pen of the Beasley Packing House in Jackson, Mississippi, and that a Mr. Little told him that he sold the heifer to the Beasley Packing House. That Mrs. C....