Lifer v. State

• Decision Date: 09 December 1940
• Docket Number: 34089
• Citation: 189 Miss. 754,199 So. 107
• Court: Mississippi Supreme Court
• Parties: LIFER et al. v. STATE

199 So. 107

189 Miss. 754

LIFER et al. v. STATE

No. 34089

Supreme Court of Mississippi

December 9, 1940

APPEAL from the circuit court of Copiah county, HON. J. F. GUYNES Judge.

W. B Lifer and another were convicted of grand larceny and they appeal. Affirmed.

Affirmed.

M. S McNeil, of Hazlehurst, for appellant, W. B. Lifer.

Defendant was entitled to a severance in this case.

16 C. J. 786, sec. 2008; State v. Lee, 15 So. 160; State v. Desroche, 17 So. 210; Secs. 1271, 1273, Code of 1930.

Instruction No. 5 given the state amounted to a peremptory instruction. This instruction told the jury that if Johnnie Brown, alias Sam Smith, was guilty of larceny, then necessarily Lifer was guilty of larceny, if he was present and knowingly aided and assisted Johnnie Brown, and this was true, regardless of what amount of money he, Lifer, received, if any, from the sale of the cattle. This was a peremptory instruction to find the defendant, Lifer, guilty, provided the jury believed that Johnnie Brown was guilty. The defendant, Brown's admissions upon the witness stand proved beyond all question of a doubt his guilt, and in this state of the record the jury were instructed that if Lifer was present and knowingly aided and assisted in taking the cattle then he, Lifer, was guilty.

We earnestly insist that the evidence in this case is wholly insufficient to sustain the verdict of the jury.

Turner v. State, 168 Miss. 455; Love et al. v. State, 195 So. 584.

R. O. Arrington, of Hazlehurst, for appellant, Mrs. Clara Knotts.

Comes Mrs. Clara Knotts, one of the appellants in the above styled cause, by her attorney, and respectfully submits to the court that she adopts as her brief in the above styled cause the brief filed by M. S. McNeil, attorney for the appellant, W. B. Lifer, and respectfully moves the court to consider her case now on appeal to this court in the light of the record and the brief referred to and calls the court's attention to the agreement had between the attorneys that any objections made would be for the benefit of both defendants, and further suggests in addition to the argument made in behalf of said Lifer that the testimony in this case fails to show that Mrs. Clara Knotts had any connection with the taking of the property involved and that there is no testimony that connects her, either directly or indirectly, with the crime of larceny, as she did not receive any benefits from the sale of the property and occupies under this record the position of an innocent bystander.

W. D. Conn, Jr., Assistant Attorney-General, for appellee.

The court, after hearing the motion for a severance and argument thereon, denied the application as it had a right to do under the statute, such motion not having been made prior to the arraignment. However, we think all argument on this motion became moot when Johnnie Brown changed his plea to guilty and the trial thereafter proceeded against the two appellants here. The act of Johnnie Brown in changing his plea was the equivalent, we think, of a severance.

Appellants were shown to have been present when the cows were taken, both of them helped to load and make away with them. Appellant, Lifer, drove the truck to Jackson, sold the cattle, got the check for them, cashed it, and gave Johnnie Brown his part of the proceeds. A bogus name and a bogus bill of sale was prepared by Mrs. Knotts, being directed therein by Lifer. There is testimony for the state that all three were jointly engaged in the larceny of these cattle. For appellants there is evidence that they were afraid the cattle were stolen or being stolen and that Lifer only agreed to haul them to Jackson for a stated consideration. To sustain the state's version, the testimony of an alleged accomplice is relied on. Whether his testimony were worthy of belief was for the jury and not the court. The jury was given a cautionary instruction with reference to his testimony. The jury accepted the state's version, and can this court or the trial court say that the jury was not warranted in so doing?

The uncorroborated testimony of an accomplice is sufficient to sustain a conviction if his testimony is reasonable; and that is, that it was not improbable or self-contradictory on its face.

Boutwell v. State, 165 Miss. 16, 143 So. 479; Matthews v. State, 148 Miss. 696, 114 So. 816.

This court has further said that when the testimony of an accomplice is corroborated (even though slightly) it is sufficient.

Frazier v. State, 142 Miss. 456, 107 So. 674.

This rule still applies even though the accomplice has been convicted or has pleaded guilty.

Gates v. State, 160 Miss. 479, 135 So. 189.

We think the instruction complained of states a correct rule of law.

Gibbs v. State, 167 Miss. 598, 149 So. 796; Ashley v. State, 166 Miss. 11, 147 So. 879.

OPINION

Ethridge, J.

W. B. Lifer, Clara Knotts and Johnnie Brown were indicted in the Circuit Court of Copiah county, on the 8th of November, 1939, on a charge of grand larceny, for the stealing of two head of cattle--one yellow or cream colored Jersey cow with slipped horns, valued at $ 45, and one red spotted heifer, valued at $ 35, making a total of $ 80.

W. B. Lifer and Clara Knotts were arrested under the indictment on November 13, 1939; and on the 4th day of December the appellants were arraigned, and plead not guilty; moving the court later on the same day to set aside their plea of not guilty, and for a severance in the trial; alleging that the appellants' attorneys were in a room adjoining the courtroom, in a consultation pertaining to other court matters, when the defendants were arraigned, and did not know of it until afterwards.

In this motion to withdraw the plea of not guilty it was alleged that it would be unjust to try the defendants, appellants here, jointly with the defendant Johnnie Brown, a negro, because he had plead guilty, or confessed his guilt to the sheriff, who had in his possession the written confession, showing that "Johnnie Brown, alias Sam Smith, is guilty of the charge." On the hearing of the motion to withdraw the plea of not guilty, it appeared that the attorneys for the appellants had been employed prior to the entering of the plea of not guilty, but had not read the indictment, and did not know at the time the plea was so entered by the appellants, that there was a joint indictment against the three, not having been notified of the arraignment. The statement of the codefendant, Johnnie Brown, alias Sam Smith, was introduced on the hearing, in which he had made a confession of guilt, implicating the appellants.

It seems that the appellants appeared on the second Monday of the term, made bond and employed the attorneys; and, further, that the attorneys knew their clients were in the courtroom on the day of the arraignment.

The court overruled the motion for a severance, stating, "I do not see that the rights of this defendant would be prejudiced by a joint trial. It is now getting near the close of the term. There are three cases, three defendants jointly indicted, to-wit; W. B. Lifer, Clara Knotts and Johnnie Brown, alias Sam Smith. Indictments have been pending since November 9th and the parties were not arraigned earlier because of this understanding between the district attorney and counsel for the defendant. If the negro wishes to plead guilty he has an opportunity to do so. I see no reason for granting a severance at this time. The motion will be denied."

It appeared that when the jury was being empaneled the several defendants did not agree as to their challenges. The defendant, W. B. Lifer, desired six peremptory challenges the defendant, Clara Knotts, desired four; and the attorney for Johnnie Brown, alias Sam Smith, was not present in the courtroom; this attorney lived in Jackson. In this situation the defendant, Johnnie Brown, alias Sam Smith, stated that he desired to withdraw his plea of not guilty and enter a plea of guilty, which statement was made in the presence of the jury being empaneled; the court questioned him as to his desire, stating that he would be allowed to...