Swilley v. State

• Decision Date: 10 November 1930
• Docket Number: 28889
• Citation: 130 So. 730,158 Miss. 519
• Court: Mississippi Supreme Court
• Parties: SWILLEY v. STATE

130 So. 730

158 Miss. 519

SWILLEY v. STATE

No. 28889

Supreme Court of Mississippi

November 10, 1930

Division A

Suggestion of Error Overruled December 8, 1930.

APPEAL from circuit court of Stone county, HON. W. A. WHITE, Judge.

A Swilley was convicted of grand larceny, and he appeals. Affirmed.

Affirmed.

A. Q. Broadus, of Purvis, for appellant.

If the witness, Dedeaux, lied to the officers at Gulfport about this very case and if he committed perjury against his uncles, we think that the court should have sustained the motion for a directed verdict for the defendant at the close of the state's case. The law is well settled that the evidence of a witness, who admits during his examination that he is not credible, is not entitled to consideration and his evidence should not be permitted to go to the jury.

Encyclopedia of Evidence, vol. 3, page 779; Kennedy v. McQuaid, 56 Minn. 450, 58 N.W. 35; Williams v. Bishop (Col.), 58 P. 1063; Hughes v. State, 58 Miss. 357; Joslin v. State, 91 So. 903.

A. Q. Broadus, of Purvis, and M. D. Brown, of Gulfport, for appellant.

In addition to the evidence of Vardaman Dedeaux being under a cloud by reason of the fact that he was shown to be a criminal, his evidence is full of confessed contradictions, and therefore a conviction could not stand on it.

Allen v. State, 45 So. 833.

W. A. Shipman, Assistant Attorney-General, for the state.

The testimony for the state and the accused was in sharp conflict. In such case the question is one peculiarly for the jury to decide, and this court in such case will not interfere with the verdict.

Brown v. State, 103 Miss. 639, 60 So. 726; Jackson v. State, 105 Miss. 782, 63 So. 269; Wells v. State, 112 Miss. 76, 72 So. 859; Spight v. State, 120 Miss. 752, 83 So. 84; Chandler v. State, 143 Miss. 312, 108 So. 723; Matthews v. State, 148 Miss. 696; Steward v. State, 154 Miss. 858, 123 So. 891.

OPINION

McGowen, J.

The appellant was sentenced to serve a term of one year in the state penitentiary on an indictment charging grand larceny in the stealing of one heifer of the value of forty dollars. On the trial the jury convicted him, and thereupon the court sentenced him. His appeal is from that verdict and sentence.

He was jointly indicted with his two sons, Jesse Swilley and Henry Swilley, and his son-in-law, Vardaman Dedeaux. The evidence for the state is to the effect that the two Swilley sons, together with Mr. and Mrs. Vardaman Dedeaux, went to the home of the appellant arriving there about the noon hour. On that afternoon Vardaman Dedeaux and Jesse Swilley went out on the range and drove the young heifer in question, the property of Enoch Bond, to a secluded spot in the woods and fastened the animal to a tree by means of a rope. The evidence is largely that of Vardaman Dedeaux, who confessed his guilt, but he swears positively that this appellant, together with the others named in the indictment took part in the crime here alleged. He testified that this appellant knocked the cow in question in the head with an axe and killed her and assisted otherwise in killing and butchering the animal; that the cow was carried to the house of the appellant after night and hung up in the appellant's smokehouse, at a time when they were all present and participating therein; that they aided in hiding the hide, entrails, ears, and head; that the ears were secreted on the limb of a standing tree. When Vardaman Dedeaux was arrested by the officers of another county, he made a statement, and, when he came into the custody of the officers of Stone county, he went with the officers and helped find the missing part of the animal which had been hidden.

The appellant, his two sons, and Mrs. Vardaman Dedeaux testified that the father did not participate in any manner in this crime, that he was not at home when the other parties came, and that he came in after they left, and that all the family went to bed at seven o'clock in the evening, and on the following morning Jesse Swilley and Vardaman Dedeaux disappeared without the knowledge of the other members of the family. Jesse Swilley and Vardaman Dedeaux were arrested in Biloxi undertaking to sell the animal to a butcher; they had carried it there from the smokehouse in the car of one of the Swilleys.

The statements made by Vardaman Dedeaux at different times were not in harmony with each other, and there was a contradiction of him in these statements. On cross-examination, Vardaman Dedeaux was asked the following question:

"Q. I want to ask you, isn't it true that you were the star witness in the case of the state of Mississippi against your uncles, a star witness for the state, and you secured their conviction and they were sent to the penitentiary, and after they were in the penitentiary you made an affidavit that your evidence was untrue and they got out by reason of that affidavit? Objected to. Overrule...