Rose v. State

• Decision Date: 10 January 1955
• Docket Number: No. 39248,39248
• Citation: 222 Miss. 699,76 So.2d 835
• Parties: Earnest ROSE v. STATE.
• Court: Mississippi Supreme Court

Page 835

76 So.2d 835

222 Miss. 699

Earnest ROSE v. STATE.

No. 39248.

Supreme Court of Mississippi.

Jan. 10, 1955.

Richard B. Booth, Aberdeen, for appellant.

J. P. Coleman, Atty. Gen., by Joe T. Patterson, Asst. Atty. Gen., for appellee.

ROBERDS, Presiding Justice.

Earnest Rose, the appellant, and Mack Wood, Robert Smith Ballow and W. R. Scott were jointly indicted for the armed robbery of Donald Hendrix. A severance was granted, and Wood, Ballow and Rose were all convicted in separate trials at the October 1953 term of the Circuit Court of Monroe County, Mississippi. Wood and Ballow appealed to this Court and their convictions were affirmed October 18, 1954. Wood v. State, Miss., 74 So.2d 851; Ballow v. State, Miss., 74 So.2d 854. Rose, upon conviction, was sentenced to the state penitentiary for a term of twenty-five years, and this is his appeal to this Court.

It is not necessary for us to detail the testimony given in the trial of Rose for the reasons, first, that it is substantially the same, except as hereinafter noted, as that stated in the opinions in the Wood and Ballow cases, and, second, the questions raised on this appeal do not require a detailed statement of the testimony given on the trial of the case.

However, the evidence in the case at bar differs in two respects from that adduced on the trials of Wood and Ballow. In this case one witness testified that he knew the general reputation of Donald Hendrix, the prosecuting witness, for truth and veracity and it was bad and he would not believe Hendrix on oath, and William O. Pegram, who was a resident citizen of Memphis, Tennessee, tesified to extensive sales of whiskey by him to Wood and Scott in north Mississippi. This testimony in no way changes the result in this case. While as stated, one witness said he would not believe Hendrix on oath, three other witnesses said his reputation for truth and veracity was good and they would believe him. That simply made the veracity of Hendrix an issue for the jury. The testimony of Pegram showed he was a large liquor dealer in Memphis, and that, over a considerable period of time, he had sold much whiskey in north Mississippi to Wood and Scott, which testimony had little, if any, bearing upon whether or not Rose was guilty of armed robbery of Hendrix.

On the night after the robbery officers stopped an automobile which was being driven by Ballow and in which Wood, Scott and Rose were also riding. In the car the officers found pistols and a rope which the evidence shows was used in the robbery. Proof was made of that on the trial of this appellant. Rose says it was error to make that proof because the officer had no warrant to search the car. The contention is not well taken. In addition to the fact that the automobile was exceeding the speed limit, in the presence of the officers, it is shown that Rose did not own, or claim to own, the automobile, nor did he claim to be in possession thereof, rightfully or otherwise. The car was being driven by Ballow, and Rose was on the back seat. It was licensed in the name of a Mrs. Stevens. To be in position to complain of an illegal search one must either be the owner or in the rightful possession of the property searched. Lee v. City of Oxford, 134 Miss. 647, 99 So. 509; Lucas v. City of Oxford, 134 Miss. 771, 99 So. 510; Ross v. State, 140 Miss. 367, 105 So. 846; Polk v. State, 167 Miss. 506, 142 So. 480; McLemore v. State, 178 Miss. 525, 172 So. 139; Brown v. State, 192 Miss. 314, 5 So.2d 426; Smith v. State, 198 Miss. 788, 24 So.2d 85; Harris v. State, 216 Miss. 895, 63 So.2d 396; Brooks v. State, Miss., 52 So.2d 609. The Brooks case involved property taken from an automobile not owned, or in the rightful possession, of the accused.

In the cross-examination of Mack Wood, co-indictee of appellant, the State by its questions, undertook to show that Pegram, Wood and Scott had endeavored to 'take over' the whiskey business in north Mississippi. The learned trial judge permitted the questions to be asked at that stage to show the interest of the witness as one associated with and actively engaged in the whiskey business in which it was claimed appellant was also engaged. The trial judge anticipated the State would introduce proof contradicting the denial of Wood that he and the others were so engaged. However, that proof was not made. The court then sustained a motion of defendant to exclude the testimony on that question. Defendant made motion for mistrial, which the court overruled. That was at the close of the trial. We do not think refusal to grant a new...