Matthews v. State

• Decision Date: 12 December 1927
• Docket Number: 26739
• Citation: 148 Miss. 696,114 So. 816
• Court: Mississippi Supreme Court
• Parties: MATTHEWS v. STATE. [*]

114 So. 816

148 Miss. 696

MATTHEWS v. STATE. ^[*]

No. 26739

Supreme Court of Mississippi

December 12, 1927

(Division B.)

1. CRIMINAL LAW. Accomplice's evidence will sustain conviction unless improbable on its face or self-contradictory; credibility of accomplice's evidence if not unreasonable or contradictory on face, is for jury jury verdict will not be disturbed merely because accomplice's evidence is contradicted by defendant's witnesses.

The evidence of an accomplice is sufficient to sustain a conviction against his codefendant unless such evidence is improbable on its face or self-contradictory. The question of the credibility of such evidence, when not so unreasonable or contradictory on its face, is for the jury, and the jury's verdict will not be disturbed merely because such evidence is contradicted by the witnesses for the defendant.

2. CRIMINAL LAW. For prosecuting attorney to comment on evidence excluded by court, or to make statement of facts not in evidence, is improper; to present error in prosecuting attorney's comment on excluded evidence or making statement of facts not in evidence, prompt exceptions must be taken; if objection to prosecuting attorney's comment on excluded evidence or to his statements of facts not in evidence is sustained, there is no cause for reversal in absence of motion to discharge jury before verdict.

It is improper for a prosecuting attorney to comment on evidence excluded by the court, or to make statement of facts not in the evidence; but to avail of such objection, exceptions must be promptly taken, and, if taken during the trial and the objection is sustained and the evidence ruled out, there will be no reversal therefor unless the defendant moved to discharge the jury prior to its verdict thereon.

3. CRIMINAL LAW. Unless defendant again objects to repetition of statement in argument to which former objection was sustained, and, if objection is overruled, takes exceptions conviction will not be reversed.

Where an objection is made to argument and sustained, and subsequently during the trial the statement is repeated, it is the duty of the defendant to again object, and, if the objection is overruled, to take exceptions thereto; and if the bill of exceptions failed to show that this was done judgment will not be reversed because thereof.

Division B

APPEAL from circuit court of Jones county, Second district.

HON. R. S. HALL, Judge.

Glenn Matthews was convicted of stealing an automobile, and he appeals. Affirmed.

Judgment affirmed.

F. B. Collins, H. E. J. Ross and F. H. Bush, for appellant.

J. A. Lauderdale, Assistant Attorney-General, for the state.

OPINION

ETHRIDGE, J.

Glenn Matthews and Horace Eckoff were jointly indicted in the circuit court of the Second judicial district of Jones county, Miss., at the November term, 1926, on the charge of stealing a certain automobile, of the value of four hundred dollars, belonging to one J. W. O'Bryant.

A severance was granted on the motion of Eckoff, and the appellant, Matthews, was placed on trial.

On the trial of the appellant, Eckoff was introduced as a witness and testified that he lived in Greene county; that some months before the stealing of the said car Matthews moved from Laurel into his community; that he was desirous of buying a car; that Matthews told him that he knew where a car, of the make stolen, was for sale, and that he could procure it for him; that he went with Matthews to Laurel, making most of the trip at night, and that he was in Laurel two or three nights; that on the morning when he drove the car away from Laurel, Matthews brought him the stolen car in the western part of the city of Laurel, and that he paid him a cash payment on it with the understanding and agreement that he, Eckoff would take the car home and get his father's approval; that if his father approved it, he would give his note for the balance, which proposition was satisfactory to Matthews; that he carried the car home in the daylight, not knowing that it was stolen, placed it in front of his father's house by the roadside; and that there was no change of the numbers on the car, and no effort to conceal it.

It appears that the car was stolen about ten or ten-thirty at night, in the city of Laurel; that the officers looked for the car and tried to find some trace of it, but did not suspect the appellant or Eckoff in connection with this theft; that the appellant approached one of the officers and asked if there was any reward for the car if found, and stated that if there was anything in it for him, he would locate the car for them. The proof shows that the officers told the appellant that they did not know whether there was a reward to be had or not, but that if he would tell them where the car was, they would try to see what they could do for him in that regard. The appellant told the officers that the car was at the home of Eckoff, in Greene county, giving them directions how to proceed to the place and find the car. The officers, acting upon this information, went to the said place in Greene county, found the car in front of the house where Eckoff lived with his father, and took the number and other indicia to identify it. The car had not been tampered with in any respect. It was in the open, beside the road, where it could be seen. Upon being interviewed, Eckoff told, the officers, with no effort to conceal anything, how he came in possession of the car.

Subsequently Eckoff went before the grand jury. He was warned before making his statement that he would be given no immunity, and that anything he stated to them would be used against him. He waived immunity, testifying that he received the car from the appellant. They were both indicted for grand larceny. Process was placed in the hands of the officer for the arrest of appellant, and when the officer attempted to do...