Keel v. State
| Decision Date | 08 October 1923 |
| Docket Number | 23487 |
| Citation | 97 So. 521,133 Miss. 160 |
| Court | Mississippi Supreme Court |
| Parties | KEEL v. STATE |
(Division A.) January 1, 1920
1. CRIMINAL LAW. State may prove venue by adding together evidence of two or more witnesses.
In a criminal prosecution, the state may prove the necessary facts constituting venue by adding together the evidence of two or more witnesses.
2. CRIMINAL LAW. Exceptions to rule against proof of other crimes to aid state's case enumerated.
One exception to the rule that the state's case cannot be aided by the proof of another crime than the one for which the defendant is being tried is that evidence of another crime is admissible where it forms part of the res gestae and another is that where the crime sought to be proven in aid of that for which the defendant is being tried is so intimately connected as that it shows motive.
3. CRIMINAL LAW. Sentence for assault and battery held erroneous as to excess of imprisonment above statutory maximum.
Section 1527, Code of 1906 (section 1289, Hemingway's Code) fixes the maximum penalty for assault and battery at five hundred dollars fine and six months in jail. A penalty was imposed of two hundred and fifty dollars fine and nine months in jail. Held, that the judgment of the court was erroneous as to the excess of imprisonment above six months; therefore the judgment was affirmed with that exception.
APPEAL from circuit court of Lafayette county, HON. T. E. PEGRAM, Judge.
Jeff Keel was convicted of assault and battery, and he appeals. Affirmed.
Judgment reversed and affirmed.
L. C. Andrews, for appellant.
I. We respectfully contend that part of the judgment of the court which ordered the appellant imprisoned in the county jail for nine months, was contrary to section 1289, Hemingway's Code, section 1527, Annotated Code, 1906.
II. In regard to venue, the state attempted to prove county and state by the testimony of a witness who did not see or witness the commission of the alleged offense. This is the only testimony in the record as to the district, county, and state wherein the alleged offense was committed, and throughout the entire testimony delivered by numerous witnesses, the schoolhouse mentioned by them is not identified as Unity School house. The matter of venue in a criminal proceeding is not to be left to conjecture or guess but must be clearly proved. Thompson v. State, 51 Miss. 353.
III. The state was permitted over objection of counsel for appellant to introduce proof of similar offenses alleged to have been committed that night at the schoolhouse by appellant on other girls. The admission of such testimony was prejudicial to the appellant. They are entirely separate and distinct from one charge and have no logical connection upon the other. Dabney v. State, 82 Miss. 252; Whitlock v. State, 6 So. 237; 1 Bish. Cr. Proc., section 1124; King v. State, 6 So. 188. The exception to the general rule is where evidence of other crimes is admitted to prove particular matters, such as identity, knowledge, intent, malice, motive, plan or system of criminal action and character of doing business. These particular matters appear not to have been in issue in the case at bar, and, therefore, it does not come within one of the exceptions.
S. C. Broom, Special Assistant Attorney-General, for the State.
I. The question of venue may be briefly disposed of. One witness who was present on this occasion, testified that the crime occurred in LaFayette county, state of Mississippi, in District 5. Other witnesses for the state testified that it was at a schoolhouse by the name of Unity. Thus, according to the state's testimony this crime was committed at a schoolhouse named Unity in District Number 5, LaFayette county, Mississippi, and that is sufficient.
II. It was not error to permit evidence of other crimes committed at the same time. The rule is very clearly stated in the case of King v. State, 66 Miss. 502, 8 So. 189. The exceptions to the general rule are well stated in Collier v. State, 106 Miss. 613. We submit that everything done on this occasion constituted a part of the res gestae, and that theory would be admissible. 16 C. J., 572, 574, 588, 591, and 594. It is therefore certain that no error was committed in admitting evidence of the other crimes committed at the same time and place immediately before or immediately after the assault and battery committed upon this particular girl.
III. The judgment of the court. Section 1288, Hemingway's Code, section 1527 of the Code of 1906, provides the only penalty for a misdemeanor, and this provides for a fine for not more than five hundred dollars and imprisonment in the county jail not more than six months, or either, and it therefore appears that the judge was without authority to impose a sentence of nine months in jail. But this error, if error it is, was not in the trial of the case and does not go to the guilt or innocence of the appellant. It is simply an error in judgment, and is within the power of this court to correct said judgment of the lower court and impose such sentence as may be necessary and proper in the premises.
Appellant, Jeff Keel, was convicted in the circuit court of Lafayette county of assault and battery upon Connie May Inmon, a schoolgirl fourteen years of age, and sentenced to pay a fine of two hundred fifty dollars and to confinement in the county jail for nine months. The prosecution was begun before a justice of the peace of district 5 of Lafayette county, resulting in appellant's conviction, from which judgment he appealed to the circuit court.
Appellant urges a reversal of the case upon the following grounds: First, that the state failed to prove the venue; second, that the trial court permitted the state to prove in aid of the offense charged other separate and distinct offenses committed by the appellant; third, that the imposition of a jail sentence of nine months was unauthorized by law, the maximum jail sentence allowed by the statute in such cases being six months. We will consider the questions in the order stated.
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