Patterson v. State

• Decision Date: 10 June 1940
• Docket Number: 34071
• Citation: 196 So. 757,188 Miss. 718
• Court: Mississippi Supreme Court
• Parties: PATTERSON v. STATE

196 So. 757

188 Miss. 718

PATTERSON v. STATE

No. 34071

Supreme Court of Mississippi, Division B

June 10, 1940

APPEAL from circuit court, of Jones county, HON. W. J. PACK, Judge.

Lonnie Patterson was convicted of burglary and larceny, and he appeals. Reversed and remanded.

Reversed and remanded.

Paul G Swartzfager and Raymond C. Swartzfager, both of Laurel, for appellant.

The trial court erred in refusing to grant a peremptory instruction to the defendant at the conclusion of the state's evidence.

Knight v. State, 20 So. 860, 74 Miss. 140; Loggins v State, 136 So. 922, 161 Miss. 272; Garland v State, 94 So. 210, 130 Miss. 310; City of Hazlehurst v. Byrd, 57 So. 360, 101 Miss. 57; Jobe v. State, 61 So. 826, 104 Miss. 860; Williams v. State, 98 So. 338.

The trial court erred in granting this instruction for the state: "The court charges the jury for the state that the unexplained possession of recently stolen property is an element by which the jury may infer guilt."

Patterson v. State, 110 So. 208, 144 Miss. 410; Smith v. State, 137 So. 96, 161 Miss. 430.

The trial court erred in refusing the following instruction requested in behalf of the defendant: "The court instructs the jury for the defendant that of the two reasonable hypotheses supported by the evidence in this case, it is the jury's duty to adopt the hypothesis of innocence, though that of guilt is the more probable."

Williams v. State, 142 So. 471, 163 Miss. 475; Irving v. State, 56 So. 377, 100 Miss. 208; Hogan v. State, 90 So. 99, 127 Miss. 407.

The verdict of the jury was against the overwhelming weight of the evidence.

Bowen v. State, 144 So. 230, 164 Miss. 225.

In the case at bar, the jury arbitrarily disregarded the, defendant's explanation of the means by which he came into possession of the oil.

The only evidence for the state was that the defendant had oil similar to that stolen in his possession and this possession was explained by him on two occasions.

Patterson v. State, 110 So. 208, 144 Miss. 410; Ross v. State, 42 So. 801.

The only evidence that the state offered was that some oil similar to that stolen was found in the possession of the defendant. There was not one shred of proof that he broke and entered the warehouse. The oil found in the possession of the defendant was never directly compared to the remainder of the oil at the bulk plant. There was even a sharp conflict of opinion as to whether the oil found in the possession of the defendant was motor oil or transmission grease, as was the substance allegedly stolen, as testified to by Mrs. Holloway, the owner of the warehouse.

Jackson v. State, 79 So. 809, 118 Miss. 602.

The fact that the appellant had in his possession several gallons of oil similar to that stolen is what the state based their case on. This oil could have been obtained in a hundred different ways without stealing it. We submit that this thin shred of circumstantial evidence is wholly insufficient upon which to base a conviction.

We submit that the record shows that the verdict in this case is not a true and just verdict. We submit that the judgment of the court below should be reversed and the appellant discharged. If mistaken in that, we submit that the judgment should be reversed and the cause remanded for a new trial.

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

There appears to be no dispute or conflict in the record as to the fact of the burglary. After the burglary was discovered, appellant was found to be in the posssession of about four and one-half gallons of some description of oil. It is not clear from the record that what he had was differential grease. So far as we have been able to determine from the record, there was never any identification of what he had as being a part of that which was stolen. There were no identification marks on or about the oil or grease in appellant's possession. It was not shown that appellant was ever about the place where the differential grease was stored.

Under the decisions of this court in Robinson v. State (Miss.), 178 So. 588; Sorrells v. State, 130 Miss. 300, 94 So. 209, and Jackson v. State, 118 Miss. 602, 79 So. 809, we submit that there is no evidence in this record upon which a verdict of guilty could he predicated, and the motion to exclude should have been sustained.

The record does not show that the appellant ever requested a peremptory instruction. The record shows that a motion for a new trial was filed, but there is nothing to indicate that this motion was ever brought to the attention of the court. Therefore, there is nothing for this court to review with reference to this motion for a new trial.

Cogsdell v. State (Miss.), 185 So. 206.

OPINION

McGowen, J.

The appellant, Lonnie Patterson, was convicted of burglary and...