Powers v. State

• Decision Date: 11 December 1933
• Docket Number: 30577
• Citation: 168 Miss. 541,151 So. 730
• Court: Mississippi Supreme Court
• Parties: POWERS et al. v. STATE

151 So. 730

168 Miss. 541

POWERS et al. v. STATE

No. 30577

Supreme Court of Mississippi

December 11, 1933

Division B

Suggestion Of Error Overruled January 22, 1934.

APPEAL from circuit court of Madison countyHON. W. H. POTTER Judge.

Connie Powers and Walter Brennan were convicted of grand larceny and they appeal.Affirmed.

Affirmed.

Ross R. Barnett and D. C. Enochs, both of Jackson, for appellants.

There was no necessity for a written fiat and actual issuance of a writ of error coram nobis.

Carraway v. State, 163 Miss. 639, 141 So. 342.

Any fact that might turn the scales, arising since the trial, may be a ground for a new trial on writ of error coram nobis; otherwise, there would be no function of a writ of error coram nobis.

Hawie v. State, 121 Miss. 197, 83 So. 158, 10, A. L. R. 205.

All courts hold that one on trial for crime may as a defense offer evidence to show that another committed the crime.

Roundtree v. State, 107 Miss. 166, 65 So. 125;Brown v. State,99 Miss. 791, 55 So. 961, 37 L. R. A. (N. S.) 345;Baldridge v. Stribbling,101 Miss. 666, 57 So. 658;U. S. v. Mulholland,50 F. 413;3 Wigmore on Evidence, paragraph 1476.

The lower court erred in overruling the motion of the appellants for a new trial.

As a general rule, new trials will not be granted on newly discovered evidence that merely goes to the impeachment of the testimony for the state.But that is not always the rule.The rule relaxes in the interest of justice.That is to say, if the impeaching newly discovered evidence would probably cause a different verdict, justice dictates that a new trial should be granted.

Bates v. State, 32 So. 915(Miss.);Watson v. State,96 Miss. 369, 50 So. 627;Roberts v. State, 9 Ga. A. 807, 72 S.E. 287;Bivens v. State(Tex. Cr.), 97 S.W. 86.

The lower court erred in granting the state the instruction as follows:

"The court instructs the jury for the state that in trying this case you should not hunt for doubts with the view of finding any excuse or apology for your verdict, nor should you indulge in any such doubts as are merely conjectural, but the doubts which ought to make you pause or hesitate must be reasonable doubts and they must arise out of the evidence or from the want of evidence in this case.You are not required under the law of this state to know that the defendants are guilty of the crime charged against them before you can convict, and you should not hesitate to find that they are guilty, because you are able to say, outside of the evidence, that they might have been innocent, but, after carefully considering all of the evidence in the case, if you believe beyond a reasonable doubt that they are guilty, you should discharge your duty under the law and under your oaths and say so by your verdict."

This court has repeatedly held that it is error to give instructions where there is no evidence on which to base them, or where they are inapplicable to the facts.

Hogan v. State, 46 Miss. 274;Co-operative Association v. McConnico,53 Miss. 233;Kinnaire v. Gregory,55 Miss. 612;Adams v. Power,48 Miss. 450;Phillips v. Cooper,50 Miss. 722;Parker v. State,55 Miss. 414;Bowman v. Roberts,58 Miss. 126;Railroad Co. v. Minor, 69 Miss. 710.

The instruction complained of, when looked at in all of its naked hideousness, cannot be too strongly condemned in a case like this, as strongly tending to prejudice the defendants' case, and to the conviction of innocent men.Too many jurors love the approval of the judge, and fear his upbraiding for verdicts not meeting his approval, as some judges have not hesitated to do, even to the extent of discharging them from further jury service.No instruction should be permitted to stand whereby the jury may so easily infer that the court is for conviction, and has virtually told them to convict, and thereby discharge their duty under the law and under their oaths.

Smith v. State, 103 Miss. 356, 60 So. 330;Jones v. State,130 Miss. 703, 94 So. 851;Harris v. State,135 Miss. 171, 99 So. 754.

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

It appears to me that the decision in the case of White v. State,159 Miss. 207, 131 So. 96, disposes of the question of whether or not the petitioners have a right to a writ of error coram nobis in this case.

Cummins v. State, 144 Miss. 634, 110 So. 206.

Since our court has so definitely committed itself on the proposition that newly discovered evidence is no ground for the issuance of a writ of error coram nobis, I submit that the trial court was within its rights in refusing to vacate the judgment on the hearing on this application for writ of error coram nobis.

The newly discovered testimony merely tended to impeach the credibility of the witnesses, and was merely negative in its character.

Overton v. State,101 Miss. 607, 58 So. 219;Steward v. State,154 Miss. 858, 123 So. 891.

The instruction complained of has been considered by this court and the court has said in each case that it might as well have been refused, but that they absolutely would not reverse a case for the giving of this instruction.

Smith v. State, 103 Miss. 356, 60 So. 330;Jones v. State,130 Miss. 703, 94 So. 851;Harris v. State,135 Miss. 171, 99 So. 754;Floyd v. State, 148 So. 226.

Argued orally by Ross Barnett and D. C. Enochs, for appellant, and by W. D. Conn, Jr., for the State.

OPINION

Anderson, J.

Appellants were indicted, tried, and convicted in the circuit court of Madison county of the crime of grand larceny and sentenced to the state penitentiary for a term of four years.From that judgment they prosecute this appeal.

The only issue of fact in the case was as to the identity of the persons who committed the crime.

On the night of March 30, 1932, at about eleven o'clock, two white men entered the home of Ed Harris, a negro living in Canton, and stole from him, in the presence of himself and his wife, five hundred dollars in money, a diamond stickpin of the value of one hundred dollars, a diamond ring of the value of one hundred dollars, a watch of the value of twenty-five dollars, and a pistol of the value, of ten dollars.At the time of the larceny the home of Ed Harris was occupied alone by himself and his wife, Ethel.They testified, in substance, that at about eleven o'clock on the night of March 30, 1932, two white men came to their home, knocked on the door, and were admitted; that they represented themselves to be United States government marshals and presented a paper claimed by them to be a search warrant for the search of the house for narcotics; that they went into one of the rooms of the house where there was an iron safe in which Ed kept his money and valuables after the banks began to fail; that they took out of the safe five hundred dollars in money, a stickpin, a diamond ring, and a pistol; that they then took Ed Harris outside of his home on the pretense of taking him to the city hall to give him a receipt for the money and personal property they had taken; that when they got outside of the home, appellant Brennan put his pistol against Ed's back and made him give up his watch; that thereupon these men sent Ed one way and they got in a car and left in the direction of Jackson; that when they were in the home the electric lights were on; they had on no masks and there was no difficulty in their faces and features.On the trial, Harris and his wife positively identified appellants as the persons who committed the crime.

The defense of each of the appellants was an alibi, Appellant Powers and his wife and daughter and the latter's beau testified that on the night of March 30, 1932, the night of the crime, Powers was at his home in Tampa, Fla.While appellant Brennan and his wife testified that they spent the night in Jackson, in this state, at the Ardmore Inn.

Appellants made a motion for a new trial, the ground of which was newly discovered evidence.The evidence was that of Jack Garnett who, it was shown, would testify on another trial that Ed Harris had told him on or about the 5th day of April, 1932, that he(Harris) was personally acquainted with and knew the names of the men who committed the crime; that he had known them for sixteen years; that they lived in Canton (neither of the appellants lived in Canton); and that he did not tell their names because he owned property in Canton and would have to leave there if he did so.The motion was supported by an affidavit of Jack Garnett.It was overruled.Appellants argue that the action of the court in overruling the motion is reversible error.They rely principally upon Bates v. State(Miss.),32 So. 915(not reported [in State Reports]), and Watson v. State,96 Miss. 369, 50 So. 627.In the Bates Case the newly discovered evidence would have discredited that of the principal state's witness.It was, therefore, impeaching evidence.In its opinion the court stated that the Attorney-General admitted that which the court found to be true, "that the propriety of this conviction on the facts is questionable."For that reason the court held that a new trial should have been granted on the showing of newly discovered evidence, although such evidence tended to impeach that of one of the state's witnesses.The Watson Case was much the same character of case; there the defendant was convicted of murder on evidence of such doubtful character as to make it gravely questionable as to whether the court should not vacate the verdict independently of other considerations.The court resolved the doubt in favor of a new trial upon a consideration of the newly discovered evidence, although such evidence was corroborative of the defendant's evidence and tended to impeach that of the state.Among the decisions of our cour...