Kelly v. State

• Decision Date: 09 December 1940
• Docket Number: 34250.
• Citation: 199 So. 70
• Court: Mississippi Supreme Court
• Parties: KELLY et al. v. STATE.

199 So. 70

KELLY et al. v. STATE.

No. 34250.

Supreme Court of Mississippi, In Banc.

December 9, 1940

Appeal from Circuit Court, Chickasaw County; T. H. McElroy, Judge.

" Not to be reported in State Reports."

Floyd Kelly and Cliff Thompson were convicted of feloniously stealing one black mare mule, and they appeal.

Affirmed.

C. A. Bratton, of Oxford, and J. W. Kellum, of Tutwiler, for appellants.

Greek L. Rice, Atty. Gen., and W. D. Conn, Jr., Asst. Atty. Gen., for appellee.

ETHRIDGE, Justice.

Floyd Kelly, Cliff Thompson and Ledrew Wise were indicted in the Circuit Court of Chickasaw county for feloniously stealing one black mare mule valued at $175, the property of Bob Somers. When the case was called for trial, the district attorney remanded to the files the case against Wise; and he was interviewed and testified for the state, to the effect that at the instance of Kelly and Thompson he hauled the mule from a point in Chickasaw county, Mississippi, to a place in Alabama, but that his truck broke down. He afterwards saw Kelly, with the mule, in Alabama. It appears that Thompson sold the mule in that state, where it was afterwards recovered and returned to Mississippi.

At the time it was taken the mule was in a place where it was accustomed to range with other animals, and was not actually on the owner's place. It was not rightfully in the possession of the appellants; and the course pursued by them shows that they intended to steal it. After the arrest of the two appellants, they each had a conversation with the district attorney, in the course of which they made statements showing their guilt. Afterwards, when requested to repeat these conversations in the presence of the sheriff, they refused to do so, and denied having made the statements; but the district attorney testified to their having been made.

We think the evidence was ample to sustain the verdict of the jury, and there are no errors in the instructions.

Wise testified as a witness, and his statements as to what happened are not merely the statements of an accomplice, in the absence of other defendants, but is the sworn testimony of a witness in open court.

There was no error in refusing the instruction requested in this case. The judgment is affirmed.

Affirmed.