Nichols v. State

• Decision Date: 11 November 1935
• Docket Number: 31968
• Citation: 174 Miss. 271,164 So. 20
• Court: Mississippi Supreme Court
• Parties: NICHOLS v. STATE

164 So. 20

174 Miss. 271

NICHOLS v. STATE

No. 31968

Supreme Court of Mississippi

November 11, 1935

Division B

Suggestion Of Error Overruled November 25, 1935.

Appeal from the circuit court, Washington county HON. S. A. DAVIS Judge.

Sam Nichols was convicted for burglary, and he appeals. Affirmed.

Affirmed.

Broom & Shipman, of Jackson, for appellant.

If the conviction rests upon the uncorroborated testimony of an accomplice, and the accomplice has been suc cessfully impeached by unimpeached witnesses, then this case must be reversed.

Hunter v. State, 137 Miss. 276, 102 So. 282; Abele v. State, 138 Miss. 772, 103 So. 370; White v. State, 146 Miss. 815, 112. So. 27; Harmon v. State, 142. So. 473.

We contend that this accomplice was not corroborated.

This case should be reversed and appellant discharged because of insufficient evidence to warrant a conviction.

Sykes v. State, 89 Miss. 766, 42 So. 875, 92 Miss. 247, 45 So. 838; Dill v. State, 38 So. 37; Anderson v. State, 152 So. 642, 153 So. 801.

It was error to introduce the photographs of others not on trial because it was irrelevant and immaterial and in no wise involved the defendant.

Underhill on Evidence, page 59; Jones on Evidence (2 Ed.), page 517; 9 Enyc. of Evidence, 771 and 772; Fore v. State, 75 Miss. 727, 23 So. 710, 712; LeBarron v. State, 107 Miss. 663, 65 So. 648; 3 Jones Commentaries on Evidence, sec. 581; Williams v. State, 73 Miss. 820, 19 So. 826; Lee v. State, 102 So. 301; Foster v. State, 70 Miss. 755, 12 So. 822; Haynes v. State, 72. So. 184.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

It is the law of Mississippi that a conviction based upon the testimony of an accomplice alone will not be disturbed by this court provided the testimony is 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.

And the testimony of an accomplice, when there is slight corroboration, will sustain a conviction, even though the accomplice admits that his testimony at another trial was false, in the absence of a conviction for perjury.

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

It is true that Willie O'Neal's reputation for truth and veracity was proved to be bad by certain witnesses who stand unimpeached. This testimony, however, goes merely to the weight and credibility of such testimony and the state submits that in view of the testimony of Hall and Clower, with all of its corroboration, this was sufficient to carry the case to the jury. We submit, further, that the testimony is in such shape that the defendant was not entitled to a directed verdict, nor is he entitled to a reversal at the hands of this court on this ground.

Argued orally by S. C. Broom, for appellant, and by W. D. Conn, Jr., for the state.

OPINION

Ethridge, P. J.

The appellant, Sam Nichols, was indicted with Willie O'Neal, Jack Woodcock, Frank Baygents, and F. M. Lee, for the burglary of a store building of P. P. Williams Company, in Hollandale, Mississippi, and, after a severance, appellant was tried, convicted, and sentenced to serve a term of five years in the state penitentiary. The indictment charges that the above-named parties "did then and there break and enter, with the felonious intent, the goods and chattels in said store building, then and there being found, then and there unlawfully, feloniously and burglariously to take, steal and carry away, and then and there in said store building thirteen cases of cigarettes, each of the value of $ 68.40, of the total value of $ 889.20 of the property of P. P. Williams Company, a corporation."

It appears that on the night of the alleged burglary three men appeared in Hollandale and first held up and bound Guy Clower, a night watchman for the Hollandale Cotton Oil Company, and were informed by Clower that Mr. Hall was night watchman for the P. P. Williams Company and did not have the keys, and that shortly thereafter Mr. Hall came along, and he was likewise bound, and he and Clower were placed under the platform; that a fourth man drove up in a car and they proceeded to burglarize the store, leaving one of their number to guard Clower and Hall. That a little later Clower and Hall were moved inside the building, and were there gagged and bound, and the burglars then left. That about twenty-five minutes after that, Clower unloosed his bonds and also unloosed Hall's bonds.

Clower could not identify any person involved in the burglary, but he testified that there were four men in it, and from where he was bound under the platform he could not see their faces, but he said there were four men, and that one of them was left with him and Hall, and that they were afterwards moved into the building. Except for his failure to identify the parties, his testimony was substantially the same as that of Hall and O'Neal, one of the burglars who was introduced as a witness for the state. Hall testified for the state and identified Sam Nichols as being one of the parties. We quote some of his testimony, for the reason that it is alleged that without the testimony of O'Neal there would not be sufficient testimony to convict, and that the conviction really stands upon the testimony of an accomplice, an impeached witness, who was unworthy of belief.

"Q. Where was Sam Nichols when you went to look at him? A. In the Hinds county jail. . . .

"Q. They took you into the hall and somebody opened the door and brought out a man and said 'This is Sam Nichols.' A. I do not think they called his name.

"Q. Didn't you tell us the deputies told you their names? A. I didn't know their names.

"Q. Didn't you tell us that just now? A. I saw him before his name was mentioned.

"Q. What did they say when they brought him out? A. They asked me if he answered the description. . . .

"Q. You didn't positively identify him at that time because you couldn't? A. I told Warren Ferguson this man.

"Q. What did you tell Warren Ferguson--he is dead and gone? A. I would compromise anything on my word. I would put my head on the chop block first--he is one of the men. . . .

"Q. It is a fact that every time the officers presented you with a man you said 'that is the man?' A. Yes, sir. . . .

"Q. You furnished the general description, then the officers went out and picked up four men meeting that description, then you went and identified them, all four of them as being the men who committed the burglary, without a single exception? That is true? A. Yes sir. . . .

"Q. That is all you know about it, they brought these men to you and you identified them. That is all there is to that? A. Yes sir.

"Q. Had it not been for O'Neal's confession, you wouldn't have been certain about your identifications, as an honest man? A. Yes sir. I had a better opportunity to see Woodcock than any of the rest. . . .

"Q. If it hadn't been for O'Neal's confession you would have been afraid of your identification? A. What I was trying to do was to describe them as near as I could, yes sir. . . .

Q. You never got a description of Sam Nichols--you never had an opportunity to see his face when you flashed the light the first time, he wasn't there? A. No sir, not until we went into the warehouse under the lights."

O'Neal the accomplice, testified in detail as to the arrangement of the plot to rob the store, saying, in substance, that Baygents, Nichols, and Woodcock, and the witness entered into an agreement in Jackson, Mississippi, to proceed to Hollandale...