Simmons v. State
Decision Date | 25 April 1932 |
Docket Number | 29738 |
Citation | 141 So. 288,165 Miss. 732 |
Court | Mississippi Supreme Court |
Parties | SIMMONS v. STATE |
Suggestion Of Error Overruled June 6, 1932.
APPEAL from circuit court of Forrest county, HON. W. J. PACK, Judge.
M. M Simmons was convicted of embezzlement, and he appeals. Affirmed.
Affirmed.
Currie & Currie, of Hattiesburg, and Gardner, Odom & Gardner, of Greenwood, for appellant.
The appellant was denied his constitutional right to be informed as to the nature of the charge against him. There was nothing in the indictment to inform the appellant of the cause and nature of the accusation other than embezzling the total sum of money, he had no information as to what transactions were involved, and he was unable to intelligently prepare his defense without additional information. The appellant was deprived of his rights guaranteed to him under both the state and federal constitutions, which require that the accused shall be informed of the nature and the cause of the accusation.
Article 6, Amendments to Federal Constitution; sec. 26, Miss. Const 1890.
United States v. Potter (C. C. Mass. 1892), 56 F. 83, 89 (1894), 15 S.Ct. 144, 155 U.S. 438, 39 L.Ed. 214; U.S.C. A. Const., par. 2, p. 577.
The provision as to the nature and cause of the accusation is intended to secure to the accused such a specific description of the offense as will enable him to make preparation for his trial, and also such identification of the offense that he may be insured against a subsequent prosecution therefor.
Noonan v. State, 1 S. & M. 562; Murphy v. State, 24 Miss. 590; Girard v. State, 25 Miss. 469; Riggs v. State, 26 Miss. 51; Norris v. State, 33 Miss. 373; Newcomb v. State, 37 Miss. 383; Williams v. State, 42 Miss. 328; Riley v. State, 43 Miss. 397; Thompson v. State, 51 Miss. 353.
A bill of particulars may be required in all cases in which the indictment is general in its terms, and the bill should at least state from what person the money alleged to have been embezzled was received.
11 Wharton on Criminal Law (11 Ed.), par. 1295.
The court erred in refusing to allow us to develope testimony to the effect that the Kirchmann report or audit was freely used in the grand jury room. An examination of the audit discloses that it contains conclusions, arguments, and statements as to illegal transactions, all of which would be calculated to prejudice the grand jury against the appellant.
State v. Owen, 156 Miss. 487, 126 So. 25.
The appellant did not have a fair and impartial trial.
The jury was hand-picked in its last analysis. We do not charge corrupt motives on the part of the sheriff or the prosecution. In fact, we do not believe that there was any fraud. Yet the procedure followed is so dangerous that we believe it should be condemned by this court for that reason alone, and for the further reason that the rights of the appellant were evidently prejudiced because of the method followed. The facts briefly are these: The sheriff was in sympathy with the prosecution and actively assisted the prosecution in the selection of the jury, retired to a room in front of the jury, and conferred with the prosecution relative to its challenges, all of which the jury could observe from the jury box. The members of the panel understood fully that the sheriff was in sympathy with the prosecution. It is common knowledge that the sheriff is one of the most influential men in the county.
The state ought not to be allowed to take such an undue advantage of the accused.
Rhodman v. State, 153 Miss. 15, 120 So. 201.
The appellant was convicted on incompetent evidence. The court at first over our objection permitted Kirchmann to testify that he had checked the records of the Building & Loan Association and found a shortage in Simmon's account. Subsequently the court on reflection reversed its ruling and instructed the jury not to consider Kirchmann's testimony on this point. Later the court again permitted Kirchmann to testify to the same thing over our objection. The court in attempting to assist the district attorney in making his record directed that Kirchmann's opinion be given as to the shortage, based on the books and records of the company "that had been introduced in evidence." This did not help the situation. It was incompetent first because it was concerning a matter which under the rules of evidence cannot be established by opinion evidence; second, it was a conclusion of fact pure and simple and invaded the province of the jury.
State v. Nevada Central Railroad Company, 113 A. S. R. 834; Whitlock v. State, 6 So. 237; Slayden v. State, 102 Miss. 101, 58 So. 977; Dedaux v. State, 125 Miss. 326, 87 So. 664; 16 C. J. 585, 588; Underhill on Criminal Evidence (3 Ed.), par. 150; 1 Wharton on Criminal Evidence (10 Ed.), par. 30.
An indictment was pending against appellant in the same court charging appellant with forging the Ladner check. Yet the state was allowed to show such forgery in its effort to establish the charge of embezzlement. The evidence admitted as to other offenses, we respectfully submit, was inadmissible and must reverse the case.
The appellant was entitled to a peremptory instruction.
We take it that it is not necessary to cite authorities on the question that the indictment must describe the property or thing embezzled. There is a total variance between the state's proof and the indictment.
It is our contention that appellant in any view of the case is not guilty of embezzlement. Under the proof submitted by the state, if conceded to be true, if the appellant is guilty of any crime, it is that of larceny or false pretense and not embezzlement.
Embezzlement differs from larceny in that it is the wrongful appropriation or conversion of property where the original taking was lawful, or with the consent of the owner, while in larceny the taking involves a trespass, and the felonious intent must exist at the time of such taking.
20 C. J. 410; 2 Wharton on Criminal Law (11 Ed.), par. 1297; pars. 1205 and 1274, of 2 Wharton's Criminal Law (11 Ed.); Watson v. State, 36 Miss. 592; Beatty v. State, 61 Miss. 18; Moore v. United States, 160 U.S. 269, 40 L.Ed. 423, 16 S.Ct. 294, 10 Am. Criminal Rep. 283; Grin v. Shine, 47 L.Ed. 130; People v. Kirk, 32 C. L. App. 518, 163 P. 696; Boswell v. State, 56 So. 21; United States v. Harper, 33 F. 474; State v. Culver, 5 Neb. 238, 97 N.W. 1016; 2 Words and Phrases (2d); 3 Words and Phrases 251, 252; Spegiel v. Levine, 147 N.Y.S. 78, 81, 161 A.D. 764; 3 Words and Phrases (3 Series), 175-177.
The authority quoted amply sustained our quotation that the appellant is not guilty of embezzlement under the evidence in the case.
Commonwealth v. Barry, 124 Mass. 325; People v. Miller, 169 N.D. 339, 62 N.W. 418.
The state declined in open court to elect or to inform the appellant under which indictment it would put him to trial first. Whereupon the appellant announced to the court through his attorneys that in that situation he would demand his statutory rights to have the cases called and tried in the manner, in which the same appeared on the docket of the court. When the court declined to require the state to elect under which indictment it would try the appellant first, and when the state declined on the request of the court to inform the appellant on which indictment it would try him first and when the state announced that it was ready for trial on any one and all of said nine indictments, and when the trial day had been announced by the court, all nine of said indictments stood on the docket of the court subject to call and trial on that day, and the appellant was in utter and total ignorance on which of said indictments he would be called upon to defend on that day and was at a total loss to know which one of said indictments to prepare to defend, and was put to the extreme and impossible task of undertaking to prepare his defense to each one and to all nine of said indictments, and being left in this state of peril and it being physically impossible for him to prepare his defense to each one and to all of said nine indictments in one day, or on the same day, the appellant and his attorneys pursued what reasonably appeared to them to be the only course for them to persue under the circumstances, and they prepared to defend said indictment number 1768, which was the first indictment against the appellant on the docket of the court.
When the day set for trial arrived the state for the first time announced that it would try the appellant first under said indictment numbered 1773, and the appellant objected to being put to trial under said indictment on the ground that there were nine indictments against him, all of which had been set for trial on that day, and that the court had declined on a prior date on a motion for that purpose to require the state to elect on which indictment it would try him first, and that the state had refused on the demand of the appellant and on the request of the court on a prior date to inform the appellant on which of said indictments it would try him first, and it being impossible for the appellant to prepare his defense to each and all nine of said indictments and the state having announced on a prior date in open court that it was ready in all nine of said cases, the appellant insisted on his right to be tried on said indictments, in the order in which the same appeared on the docket of the court, and announced to the court that he had prepared his defense to the first of said indictments, No. 1768.
The appellant was by the court put to trial under said circumstances on said indictment No. 1773.
The appellant was given absolutely no prior notice of the nature and causes of these complaints. He resorted to every remedy...
To continue reading
Request your trial-
Dean v. State
... ... determined by the trial judge, in the absence of the jury, ... and the credibility and weight of such testimony, like any ... other testimony, is for the jury ... Lipscomb ... v. State, 75 Miss. 559, 23 So. 210; Owens v ... State, 59 Miss. 549; Simmons v. State, 61 Miss ... 257; Holly v. State, 55 Miss. 430; Ellis v. State, ... 65 Miss. 48, 3 So. 189 ... As a ... foundation for the admission of a statement as a dying ... declaration, it must be shown that it was made by decedent ... under a sense of impending death and without ... ...
-
Dean v. State
... ... determined by the trial judge, in the absence of the jury, ... and the credibility and weight of such testimony, like any ... other testimony, is for the jury ... Lipscomb ... v. State, 75 Miss. 559, 23 So. 210; Owens v. State, 59 Miss ... 549; Simmons v. State, 61 Miss. 257; Holly v. State, 55 Miss ... 430; Ellis v. State, 65 Miss. 48, 3 So. 189 ... As a ... foundation for the admission of a statement as a dying ... declaration, it must be shown that it was made by decedent ... under a sense of impending death and without hope of ... ...
-
Anderson v. State
... ... But ... there are a few exceptions to this rule, one of them being ... that it is permissible, to show other offenses where they are ... a part of the res gestae ... Mackie ... v. State, 138 Miss. 740, 103 So. 379; Bond v. State, ... 128 Miss. 792, 91 So. 461; Simmons v. State, 165 ... Miss. 732, 141 So. 288; Boatwright v. State, 143 ... Miss. 676, 109 So. 710; Brady v. State, 128 Miss ... 575, 91 So. 277; Whittington v. State, 160 Miss ... 705, 135 So. 190; Tucker v. State, 103 Miss. 117, 60 ... So. 65; Smith v. State, 153 Miss. 585, 121 So. 282 ... ...
-
Jones v. State
... ... It is subject to ... certain exceptions,--as where one cannot be shown without ... revealing the other, or for the purpose of showing malice, ... motive, intent, etc ... Whittington ... v. State, 160 Miss. 705, 135 So. 190; Tucker v ... State, 103 Miss. 117, 60 So. 65; Simmons v ... State, 141 So. 288; Amacker v. State, 124 So ... 355; Norris v. State, 154 Miss. 190, 122 So. 391; ... Smith v. State, 153 Miss. 585, 121 So. 282; ... Stift v. State, 152 Miss. 246, 119 So. 178; King ... v. State, 123 Miss. 532, 86 So. 339; Keel v ... State, 133 Miss. 160, 97 So ... ...