Robinson v. State

• Citation: 178 So. 588,180 Miss. 774
• Decision Date: 07 February 1938
• Docket Number: 33045
• Court: United States State Supreme Court of Mississippi
• Parties: ROBINSON v. STATE

178 So. 588

180 Miss. 774

ROBINSON v. STATE

No. 33045

Supreme Court of Mississippi

February 7, 1938

Division B

1 LARCENY.

An allegation of ownership and name of owner must be set forth in indictment for larceny unless other facts are averred to explain and excuse omission.

2 LARCENY.

When name of owner is stated in indictment for larceny proof must show that thing allegedly stolen was property of person named as owner.

3. CRIMINAL LAW.

Where an expression such as "I do not think there are any others who handle the same," relating to tangible physical things, is referable to degree of positiveness of witness' recollection, that evidence is receivable for what it is worth, but when it may signify lack of any personal knowledge, or only an impression otherwise gained by hearsay, common repute, and the like, evidence is in substance no evidence.

4 LARCENY.

Where brass hose nozzles in possession of junk dealer were so badly melted and battered that they could not be identified as nozzles which had been stolen except by presence of trade-mark, statement of witness that he did not think that there were any other companies who handled same equipment with that trademark was insufficient to prove absence of other persons handling same articles in that vicinity, and was therefore insufficient to sustain conviction for larceny of nozzles of company named in indictment.

HON ROY P. NOBLE, Judge.

APPEAL from Jones County Court HON. Roy P. NOBLE, Judge.

Emmett Robinson was convicted of the larceny of ten brass hose nozzles, and he appeals. Reversed and remanded.

Reversed and remanded.

A. S. Scott, of Laurel, for appellant.

The lower court should have granted the appellant a new trial simply because the testimony was not sufficient to convict this appellant of the crime charged in the indictment. It matters not that the jury decided that from the evidence in the case the appellant was guilty, even to the exclusion of every other reasonable hypothesis consistent with appellant 's innocence. The law reports are full of many cases where the jury has returned verdicts of guilty on circumstantial evidence, and the Supreme Court promptly says that even so, yet, the record shows such a state of facts t, hat the Supreme Judges cannot allow these verdicts to stand. We submit that in the case at bar the prosecuting witness' testimony is so surcharged with untrustworthiness that this court will not allow his testimony to convict this appellant.

Nichols v. State, 164 So. 20; Section 592, Code of 1930; Jolly v. State, 174 So. 244.

If there, is a case in the reported cases of Mississippi adjudicated cases touching grand larceny on circumstantial evidence, where the property in question was not actually identified, as the exact property in question, or so proven to be such beyond every reasonable doubt, from the evidence introduced in the case, that this Supreme Court allowed such verdict to stand, we have not been able to find it, not a single one.

The court erred in sustaining the state's objection to competent and proper evidence offered by the defendant.

22 C. J. 259, sec. 262; Gould v. Norfolk, 57 Am. Dec. 50, 9 Am. Dec. 137, 50 N.E. 618; Tay. Ev., sec. 1442; Attorney-General v. Hitchcock, 1 Ex. R. 94; Lodge v. State, 122 Ala. 99, 26 So. 210, 82 A. S. R. 23.

The court erred in overruling the motion of defendant for a peremptory instruction to find the defendant "not guilty" at the close of the testimony offered by the state.

If it is true that there is not one word of testimony connecting the defendant, appellant herein, with having stolen the brass in question belonging to E. L. Bruce Company, then we take it that under the law in this state the defendant should have been discharged. We most respectfully submit that the property or brass in question introduced in evidence was never identified as the property of E. L. Bruce Company, that all the witness White testified was that the broken brass presented to him was similar to the same kind of brass which his company owned.

We submit that mere similarity of the things stolen is not sufficient to withstand motion for peremptory instruction where "similarity" is the only circumstantial evidence in the whole case upon which to base a verdict of conviction.

Ezell v. State, 130 So. 487.

Circumstances evidence is always insufficient to convict a person of crime, where, assuming all to be proved which the evidence temps to prove other ihypothesis may still be true, for it is the actual exclusion of every other reasonable hyptosis which invested mere circumstances with the force of truth whenever the evidence leaves it indifferent which of several hypothesis is true, or merely some finite, probability in favor of one hypothesis rather than another, such evidence cannot amount to proof, however great the probability may be.

Sorrells v. State, 94 So. 209.

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

That a conviction will stand even on the uncorroborated testimony of an accomplice alone, see Boutwell v. State, 165 Miss. 16, 143 So. 479, where the authorities are collated. And this is true, even though the accomplice has been convicted of the same offense.

Gates v. State, 160 Miss. 479, 135 So. 189.

There is a further qualification of this rule, and that is that an accomplice's testimony should not be improbable or contradictory on its faee.

Boutwell v. State, 165 Miss. 16, 143 So. 479; Matthews v. State, 148 Miss. 696, 114 So. 816; Rutledge v. State, 157 So. 907; Carter v. State, 166 So. 377.

On the authorities above cited laying down the rules with reference to the testimony of accomplices, as applied to the situation here, the state submits that this court is now foreclosed by its own decisions from entering into the exclusive domain of the jury in passing upon the credibility of this witness, Barlow, and substituting its judgment in that respect for the jury's.

Appellant complains of the court's action in respect to rulings on evidence offered by him and to which it sustained objections. We need only observe with reference to this complaint, that no record was made of what this testimony would have been had the witness...