Wade v. State

• Citation: 175 Miss. 434,167 So. 617
• Decision Date: 13 April 1936
• Docket Number: 31910
• Court: Mississippi Supreme Court
• Parties: WADE v. STATE

167 So. 617

175 Miss. 434

WADE v. STATE

No. 31910

Supreme Court of Mississippi

April 13, 1936

(Division A.)

1 LARCENY.

In larceny prosecution, there must be proof that property described in indictment was stolen, that property found in possession of accused was the stolen property, and that possession was obtained shortly after larceny.

2 LARCENY.

To support conviction for larceny, accused's possession must have been personal, conscious, and exclusive, and unexplained by any direct or circumstantial evidence which would rebut presumption of a taking.

3 LARCENY.

In larceny prosecution, state had burden to show that accused was in conscious possession of the property alleged to have been stolen.

4 LARCENY.

Evidence held insufficient to support conviction for larceny of mules.

APPEAL from the circuit court of Calhoun county.

HON. TAYLOR H. MCELROY, Judge.

E. O. Wade was convicted of larceny of two mules, and he appeals. Reversed, and defendant discharged.

Reversed, and appellant discharged.

Joe H. Ford, of Houston, and Creekmore, Creekmore & Capers, of Jackson, for appellant.

This case involves only one proposition of law and fact, that is, whether the evidence is sufficient to support a verdict of guilty viewing it most favorably for the state.

That this court will pass on that proposition on appeal and, if the evidence is insufficient to support a verdict of guilty, will reverse the judgment and discharge the defendant here, is well established.

Terry v. State, 160 So. 574; Jones v. State, 161 So. 143; Calhoun v. State, 161 So. 297; Pew v. State, 161 So. 679; James v. State, 161 So. 749.

The evidence showed positively that appellant never had the mules in his possession until he returned the purchase money therefor and received them back to be delivered to the owner. This is not the usual case in which the state makes out a prima facie case of theft against a defendant by-proof that the property was stolen and soon thereafter turned up in his possession.

There was no proof that appellant had anything whatever to do with the mules being stolen.

Recent possession of stolen property raises no legal presumption that the possessor stole same unless such possession is "unexplained by any direct or circumstantial evidence which would rebut presumption of taking by accused, if, for example, where his possession is shown to have originated subsequent to the larceny."

36 C. J. 870, par. 427.

The presumption of guilt which arises from possession of property recently stolen is not a presumption of law; the possession is only a fact or circumstance from which guilt may be inferred.

36 C. J. 873, par. 432.

Such possession even though unexplained raises no presumption of guilt as a matter of law.

36 C. J. 920, par. 527.

Possession of recently stolen property raises no legal presumption of guilt of defendant that he stole it, but merely furnishes a circumstance from which the jury may draw the conclusion of guilt if such possession is not reasonably explained. It is only a presumption or inference of fact.

Stokes v. State, 58 Miss. 677; Matthews v. State, 61 Miss. 155; Harper v. State 71 Miss. 202, 13 So. 882; Snowden v. State, 62 Miss. 100; 36 C. J., page 876, par. 434, note 44 and pages 877, 878, par. 434.

It is unthinkable that appellant should be held to suffer the judgment of the court on the evidence shown by the record in this case. Considered as a whole, the evidence does not even raise a well founded suspicion that he Stole the mules of Mr. Sturdivant, had anything to do with stealing them, or even knew thereof.

He was entitled to the peremptory instruction requested by him to find him not guilty, and it was error on part of the trial court to refuse it.

Adams v. State, 47 So. 787.

In order for an accused to be guilty of a crime as an accessory thereto, the guilt of the party who actually committed the crime must be proven beyond a reasonable doubt.

Osborne v. State, 99 Miss. 410, 55 So. 52; Lyon v. State, 129 Miss. 463, 92 So. 582; Murphy v. State, 129 Miss. 634, 92 So. 694.

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

The defendant filed no motion for a new trial, consequently this court cannot review the proposition of whether the verdict is contrary to the overwhelming weight of the evidence.

Justice v. State, 170 Miss. 96, 154 So. 265; Bryant v. State, 157 So. 346.

A prima facie case of larceny was made as against him and it was proper to overrule the motion to exclude.

Woods v. State, 155 Miss. 298, 124 So. 353; Fletcher v. State, 168 Miss. 361, 151 So. 477; v. Wiley v State, 129 Miss. 196, 91 So. 906; Millette v. State, 167 Miss. 172, 148 So. 788.

Self serving declarations are inadmissible.

Richards v. State, 123 Miss. 232, 85 So. 184; Brice v. State, 167 Miss. 255, 148 So. 348.

On the facts of this case, the circumstances are such as to show that appellant was an accessory before the fact of larceny.

Watson v. State, 166 Miss. 194, 146 So. 122; Wynn v. State, 159 So. 840; McGuire v. State, 133 So. 156; Dean v. State, 85 Miss. 40, 37 So. 501.

OPINION

McGowen, J.

The appellant, Wade, was tried and convicted in the circuit court of Calhoun county on an indictment charging him with the larceny of two mules owned by Oscar Sturdivant, and was sentenced to serve a term of five years in the state penitentiary.

The substantial facts are these: Sturdivant had two mules which disappeared on the night of April 11, 1934. He saw them just at dusk. The mules were valued at one hundred dollars each. The appellant, E. O. Wade, brought them back to Sturdivant about three weeks later. Over the objection of appellant, Sturdivant testified that he went to the Union Stockyards at Meridian, examined their books, and found that on April 12, 1934, the appellant sold four mules, and that the description of two of them tallied with the description of his stolen mules exactly.

It was shown that Wade had a Chevrolet six dual wheel truck, built to carry live stock, and that Kimbrell usually drove the truck, and that he lived in Wade's home. One witness testified that on the afternoon of April 11th, about dusk, he was four miles from Sturdivant's place, and, according to his best judgment, he saw the Wade truck going north toward Sturdivant's home, but he could not say positively whether or not it was the Wade truck. Another witness testified that he saw a truck loaded with stock, but that he did not know the truck, that it was going north, and that he heard a truck come back that night, and that, according to his best judgment, it was a big truck.

A. C. Chambliss testified that on April 12th he was at the Union Stockyards in Meridian, and that some mules were sold in the ring there in the name of E. O. Wade; that at these yards mules were brought into the sales ring and auctioned off, the highest bidder getting the mules; that Kimbrell had the mules there, and at that time the witness thought he was E. O. Wade, because the mules were handled under Wade's name; that he did not see the defendant there at the stockyards that day.

R. S. Adams, operator of the Union Stockyards at Meridian, testified that on April 13, 1934, he signed all checks given for the payment of stock sold through the yards the day before. He identified a check which was given in settlement for four mules as having been signed by him, the check was made payable to E. O. Wade, and had been indorsed by E. O. Wade. The memoranda showed that a mare had been bought by the party who sold the mules and had been delivered to and carried away by him.

E. A. Enochs, an official of a bank at Vardaman, Mississippi, testified that the stockyard's check for two hundred dollars was indorsed by the defendant and deposited at his bank, and that Wade opened an account with him on that day.

The sheriff of the county testified that, when he went to defendant's home, there was a "nice looking mare" hitched in front of his house, and that defe...