Pickett v. State

• Decision Date: 17 October 1932
• Docket Number: 30190
• Citation: 143 So. 692,164 Miss. 142
• Court: Mississippi Supreme Court
• Parties: PICKETT v. STATE

143 So. 692

164 Miss. 142

PICKETT v. STATE

No. 30190

Supreme Court of Mississippi

October 17, 1932

Division A

Suggestion Of Error Sustained, November 28, 1932.

APPEAL from circuit court of Alcorn county.

HON THOS. H. JOHNSON, Judge.

James H. Pickett was convicted of robbery, and he appeals. Affirmed.

Suggestion of error sustained, and judgment reversed and remanded.

For former opinion, see 143 So. 692.

Affirmed. Suggestion of error sustained and reversed and remanded.

Ely B. Mitchell, of Corinth, and T. A. Clark, of Iuka, for appellant.

The only hope the state had in the trial of this case to connect the appellant with the robbery of Mrs. Mattie Hathcock was upon her testimony that she identified James Pickett by his voice as the man who robbed her.

Mrs. Mattie Hathcock was not familiar with the voice of the appellant. She had never talked to him. She had seen him a few times with her nephew Frank Fields, prior to this date, but had not seen him within a year, and was not familiar with his voice.

The law books on evidence recognized the fact that knowledge obtained through the sense of hearing is not as strong evidence as that obtained through the sense of sight.

A typical illustration of this class of evidence is the identification of a person by his voice. Evidently such identification is based, not on any course of reasoning, or inferences, but on the direct evidence of the senses, and it has often been held admissible, though usually regarded as less reliable and certain than a recognition made by the eyesight.

11 R. C. L., sec. 1, p. 564; Mack v. State, 54 Fla. 55, 44 So. 706; People v. Jennings, 252 Ill. 534; 43 L.R.A. (N.S.) 1206; State v. Van Ella, 20 Mont. 326, 20 Ann. Cas. 389.

Evidence of identity consisting of the recognition of the voice of the accused by a witness who is familiar with it has been received. The witness may state that the accused was present on a certain occasion, and made a statement, and may then add that he knows it was the accused because he recognized his voice.

Underhill's Criminal Evidence (2 Ed.), sec. 109, p. 119; Mack v. State, 54 Fla. 55, 44 So. 306, 13 L.R.A. (N.S.), 373.

The court erred in not permitting the appellant to bring out the testimony that Mrs. Hathcock met James Pickett in the road the next day after the robbery when he spoke to her and she didn't recognize his voice.

This record discloses the fact that Frank Fields and the appellant were indicted together; that they asked for and were granted a severance. This was the trial of James H. Pickett and not Frank Fields, yet the court permitted the state over the objections of the defendant to show that Frank Fields made this inquiry of John Hathcock, so as to be certain that his Aunt Mat was carrying her money on her person so he could toll her off on the pretension of a visit out on the Rock Hill road where his friend James H. Pickett could rob her.

There is no evidence of any conspiracy in this record.

It is error to give instructions when there is no evidence on which to base them.

Hogan v. State, 46 Miss. 274; Parker v. State, 55 Miss. 414; Fortenberry v. State, 55 Miss. 403; Collins. v. State, 71 Miss. 691; Cooper v. State, 80 Miss. 175; Wood v. State, 81 Miss. 408; Rogers v. State, 82 Miss. 479; Sullivan v. State, 85 Miss, 149; Williams v. State, 90 Miss. 319; Canterbury v. State, 90 Miss. 279; Johnson v. State, 124 Miss. 429; Crawford v. State, 144 Miss. 793; Brown v. State, 149 Miss. 239.

Although an instruction may state a correct principle of law, if it is not based upon, or in conflict with the issue of fact raised or supported by the evidence it is erroneous.

Welch v. State, 110 Miss. 147; Rogers v. State, 82 Miss. 479; Spradley v. State, 80 Miss. 82; Stafford v. State, 22 So. 948; Wheeler v. State, 76 Miss. 265; Shubert v. State, 66 Miss. 446; Oliver v. State, 39 Miss. 526; Preston v. State, 25 Miss. 383.

Confessions or admissions of one conspirator or codefendant are not admissible in evidence against another. Unless they were made in his presence and assented to by him, or unless he admitted their truth, in which cases they are admissible, although made after the termination of the conspiracy, upon the theory that they are in the nature of admissions of defendant.

16 C. J. 659, and citations.

It is likewise well settled that the acts and declarations of one conspirator, if made after the completion or abandonment of the criminal enterprise are inadmissible as evidence against a co-conspirator.

Lynes v. State, 36 Miss. 617; Simmons v. State, 61 Miss. 243; Cofer v. State, 130 So. 511; Saucier v. State, 95 Miss. 226; Tate v. State, 95 Miss. 138.

The failure of the accused to deny the statement of another cannot be used in evidence against him unless it be affirmatively shown with clearness that it was made in his hearing.

Irving v. State, 92 Miss. 662.

On the trial of a defendant indicted for the larceny of certain seed cotton, it was error to, permit the officer making the arrest to detail a conversation or statements of the defendant's wife, made out of the hearing of the defendant, tending to recognize or confess defendant's guilt.

Evidence of a statement made by a co-defendant in the presence of the accused, which statement was at the time denied by the defendant is inadmissible.

Stribling v. State, 124 Miss. 141; Collins v. State, 34 So. 993; Humphreys v. State, 122 Miss. 41.

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

This is not one of those cases where identity depends entirely and solely upon the sense of hearing. To this extent the authorities cited and relied on by appellant in his brief are not controlling. To this extent Mrs. Hathcock's testimony was matter that was competent to go to the jury on the question of whether or not the jury believed her identification accurate. The jury is the sole judge of the credibility of witnesses and not the trial judge.

Coleman v. State, 124 So. 652.

This court has repeatedly held that where testimony is given only for the effect of bolstering up the testimony of the witness and strengthening his credibility, such testimony is incompetent and the trial court properly refused to allow it to go to the jury.

Mortino v. State, 98 Miss. 355, 53 So. 777; Williams v. State, 79 Miss. 555, 31 So. 197; Johnson v. State, 80 Miss. 798, 32 So. 49; Washington v. State, 93 Miss. 270, 46 So. 539.

I do not know, nor can this court know, what sort of witness appellant was or what impression he gave the jury and the court below, but the jury, by its verdict, has said that appellant not told the truth and on conflicting evidence this court is loath to disturb such verdict.

The statement of one or more specific grounds of objection to evidence constitutes a waiver of all other grounds of objections; and further a specific objection on a specific ground does not warrant this court in reversing the case on a different ground, that is, on a ground of objection not alleged in the trial court.

Johnson v. State, 140 So. 683.

I do not know, nor can this court know, what sort of witness appellant was or what impression he gave the jury and the court below, but the jury, by its verdict, has said that appellant has not told the truth and on conflicting evidence this court is loath to disturb such verdict.

OPINION

McGowen, J.

The appellant was convicted of robbery and sentenced to serve a term in the state penitentiary, from which he appeals to this court.

Mrs. Mattie Hathcock, about seventy-one years of age, was being driven in a wagon by her nephew, Frank Fields, for the purpose of visiting her sister, the mother of Frank Fields. At about three o'clock in the afternoon, James H. Pickett appeared in the wagon as they were driving along, having walked in over the end gate of the wagon; ordered Mrs. Hathcock and Fields to hold up their hands, and robbed them, holding a pistol on them. Fields gave the robber about seventeen dollars, and he then told Mrs. Hathcock she was the one he was after, and that she had a roll on her and to give it up. She was robbed of four hundred eighty-seven dollars, the denominations of the bills being twenty-three twenties; two tens, and seven one dollar bills.

Pickett's father and mother lived about three-fourths of a mile from the place where the robbery occurred. Fields and Mrs. Hathcock stopped at Pickett's home (he was not there at the time) and told them about the robbery. Mrs. Hathcock was positive in her identification of Pickett, as the guilty party.

The defense was an alibi, the appellant, Pickett, returning home shortly after the visit of Fields and Mrs. Hathcock. She saw Pickett the next morning and declared that he was the party who robbed her. There was contradiction of her, as to statements she made accusing another party of the crime.

It is, perhaps, true that she identified Pickett by hearing his voice, but she had known him before the occasion of the robbery.

When Pickett was arrested by the sheriff on the following afternoon, he had, on his person, eight twenty dollar bills, one ten dollar bill, and seven one dollar bills. While on the witness stand, the appellant, Pickett, accounted for this money by claiming that he was paid that amount by one Flanagan for hauling whiskey from Tennessee. Flanagan went upon the witness stand, and contradicted this statement by Pickett.

The appellant moved to exclude the evidence of Mrs. Hathcock upon the ground that her identification of him depended upon knowledge obtained by her through the sense of bearing, but the court overruled this motion.

We shall state other facts in connection with the assignments of error.

It is insisted that the evidence of Mrs. Hathcock is not sufficient upon...