Lawson v. State

• Decision Date: 14 December 1931
• Docket Number: 29597
• Citation: 138 So. 361,161 Miss. 719
• Court: Mississippi Supreme Court
• Parties: LAWSON v. STATE

138 So. 361

161 Miss. 719

LAWSON v. STATE

No. 29597

Supreme Court of Mississippi

December 14, 1931

Division A

1. WITNESSES. In larceny prosecution, cross-examination and contradiction of defendant respecting alleged conviction and details of another crime held improper.

Defendant admitted that he had been convicted of several misdemeanors but replied he did not remember any conviction on charges of larceny and denied that he had been convicted of stealing certain automobile. In rebuttal witness testified that defendant was convicted for trespass after he stole such automobile, and in answer to question whether that was the charge he was convicted on for stealing such automobile and for stealing another automobile, witness answered in the affirmative.

2 LARCENY.

Where taking is open in presence of owner or of other persons, this carries with it evidence that it is only trespass.

3 LABCENY.

Instruction that taking of property openly and in presence of others carried with it only evidence of trespass held improperly refused under evidence.

HON. W. A. ALCORN, JR., Judge.

APPEAL from circuit court of Coahoma county HON. W. A. ALCORN, JR., Judge.

John Lawson was convicted of grand larceny, and he appeals. Reversed and remanded.

Reversed and remanded.

Vincent J. Brocato, of Clarksdale, for appellant.

The lower court erred in permitting testimony of particulars of alleged convictions of appellant to be shown.

Alabama & V. Ry. Co. v. Thornhill, 106 Miss. 387, 63 So. 674; Dodds v. State, 45 So. 863; Walker v. State, 151 Miss. 862; Williams v. State, 87 Miss. 373; Sladen v. State, 102 Miss. 101; Starling v. State, 89 Miss. 328; Saucier v. State, 102 Miss. 647; Cook v. State, 85 Miss. 137.

The lower court erred in refusing to define evidence of open and unhidden asportation as evidence only of trespass.

Littlejohn v. State, 59 Miss. 273.

The lower court erred in permitting the introduction of incompetent and irrelevant testimony over the objection of appellant.

Harper v. State, 83 Miss. 402, 35 So. 572.

W. A. Shipman, Assistant Attorney-General, for the state.

The admission of the testimony quoted at pages 5-7 in the brief of counsel for appellant, all of which was admitted over the objections of the appellant, appears to conflict with the rule stated by this court in a number of cases.

Powers v. State, 156 Miss. 316, 126 So. 12; Dodds v. State (Miss.), 45 So. 863; Williams v. State, 73 Miss. 820, 19 So. 826; Walker v. State, 151 Miss. 862, 119 So. 796.

If the taking be open, and in the presence of the owner of other persons; this carries with it evidence that it is only a trespass.

Littlejohn v. State, 59 Miss. 273; McDaniel v. State, 8 S. & M. 401.

The court below erred and such errors do not appear to have been cured by any other instruction given. It follows if this is a correct view of the matter, that the trial court also erred in refusing to grant a new trial. The case is therefore respectfully submitted to the court without argument on behalf of the state.

OPINION

Cook, J.

The appellant, John Lawson, was convicted of grand larceny and sentenced to the state penitentiary for a term of five years; and from this conviction and sentence this appeal was prosecuted.

The conviction is based upon an indictment charging the theft of an automobile, the property of one W. O. Dismukes, who was employed at a garage and service station in the city of Clarksdale. The proof shows that the appellant had been doing odd jobs around this service station for some days prior to the alleged theft, and that during that time appellant had been permitted to use Dismukes' automobile in performing various errands for him. During the morning of the day the theft was alleged to have occurred, Dismukes directed the appellant to go to his home and change or repair a tire on his automobile, and then deliver some clothing to a laundry. The appellant discharged these duties and returned the automobile to the said service station, and Dismukes used it to go to his midday meal. When he returned, he parked his automobile at the service station at a place around which numerous employees were working, and proceeded to his duties on the inside of the building. A short while thereafter, he discovered that his automobile was gone, and thereupon, in connection with certain friends, he instituted a search for it. Later in the afternoon these friends of Dismukes met the appellant on the outskirts of the city driving the automobile toward the service station. They stopped him and informed him that the officers were searching for him, and that he had been suspected of stealing the car, and instructed him to carry it to the service station, which he promised to do. When he reached the street corner, he turned in the opposite direction toward the country, and thereupon these parties pursued him for a long distance. Failing to overtake him, they notified officers at certain towns located on the road the appellant was traveling, and he was finally stopped and arrested by one of these officers.

The appellant testified that he took the automobile openly and in the presence of persons working at the service station for the purpose of performing a mission for the owner thereof, and that when he was accosted on the street and notified that the officers were looking for him, he fled because he had a large quantity of whiskey in the automobile, and had been instructed by the owner thereof not to let any one catch him with the intoxicating liquor therein.

The appellant was subjected to a lengthy cross-examination in reference to prior convictions of crime, and admitted that he had been convicted of several misdemeanors, and upon being repeatedly asked whether or not he had been convicted in the...