Walters v. State, 38783

• Citation: 65 So.2d 465,218 Miss. 166
• Decision Date: 08 June 1953
• Docket Number: No. 38783,38783
• Parties: WALTERS et al. v. STATE.
• Court: United States State Supreme Court of Mississippi

Page 465

65 So.2d 465

218 Miss. 166

WALTERS et al. v. STATE.

No. 38783.

Supreme Court of Mississippi.

June 8, 1953.

Frank F. Mize, Forest, for appellants.

J. P. Coleman, Atty. Gen., George H. Ethridge, Asst. Atty. Gen., for appellee.

KYLE, Justice.

The appellants, Ned Walters and Albert A. Kemph, Jr., were indicted, tried and convicted in the circuit court of Scott County on a charge of burglary, and were sentenced to imprisonment in the state penitentiary for terms of three and one-half years each. From the judgments thus rendered they prosecute this appeal.

The building which the appellants were charged with breaking and entering was a Standard Oil Company gasoline service station building, located at the intersection of U. S. Highway No. 80 and State Highway No. 35, in the City of Forest. The building was occupied by Robert L. Harvey, who operated a gasoline service station therein. The burglary was committed during the night of the first Sunday of September, 1952. Roger Wade, an employee of Harvey, testified that he closed the service station about 8:30 p. m., and that he fastened the windows and locked the doors of the building before leaving. He stated that, when he returned to the service station the next morning, the doors of the building were still locked, but he found that a small Westinghouse radio, which he owned and which was kept on the shelf in the grease room, was missing.

Hubert Henderson and B. C. Sessions, police officers of the City of Forest, testified that they saw the appellants sitting in an old Dodge car, with a Nevada license tag on it, near the service station about 10 o'clock on the night the station was burglarized; that they approached the car and asked the two men if they were having trouble, and they said 'no.' The officers became suspicious, and they drove up the road a short distance, cut off the lights of their car, and drove back to a place near the service station where they could watch the appellants' movements. After a time, Walters got out of the Dodge car, stooped over and ran toward the service station building. The officers did not see Walters enter the building; but a few minutes later they saw him come out of the building, close the door behind him, and run around the building. The officers then separated, and one of them approached the building from the rear, and the other from the front. They found Walters standing near a truck trailer and arrested him. They immediately searched him and took from him a snub nose 38 pistol, which was loaded, 18 packages of cigarettes of assorted brands, and a pair of white gloves. In the meantime, Kemph, who was in the Dodge car when the officers approached the service station, got out of the car and disappeared, while the officers were closing in on Walters. The officers found a small radio in the Dodge car, which Roger Wade identified later as the radio which had been taken from the service station during the night.

George Hawkins, an employee of the State Forestry Commission, testified that he saw the man who was later identified as Kemph on the roadside about seven or eight miles south of Forest on Monday morning, and Kemph thumbed a ride with Hawkins into Raleigh. When they got to Raleigh Kemph asked Hawkins whether the street that they were on was the main street of the town and how far it was to the next town. Hawkins' suspicions were aroused, and after putting Kemph out of the car Hawkins notified the deputy sheriff. The deputy sheriff arrested Kemph soon thereafter and lodged him in the county jail, where he remained until the date of the trial.

A. E. Bounds, the sheriff of Smith County, testified that, while Kemph was in the county jail at Raleigh, he made a statement to him, in the presence of Barney Watkins, a state highway patrolman, concerning the burglary. Bounds said that Kemph's statement was a voluntary statement, and that no threats had been made to procure a statement from Kemph, and that no inducement had been offered to Kemph to cause him to make such statement. Bounds testified that Kemph had told him and the highway patrolman that he and Walters had parked their car at the service station sometime before the officers appeared and asked them what they were doing; that after the officers had spoken to them and had left Walters said to him that the service station looked like a good place and he would go in if Kemph would keep watch, and that, if Kemph saw anybody coming he should light a cigarette. Bounds testified further that Kemph said that Walters then got out of the car and went toward the service station, and that when he saw a car approaching he lighted a cigarette and got out of the car and left. Patrolman Barney Watkins corroborated Bounds' statement concerning the admissions made by Kemph in his conversation with the sheriff.

The appellants both testified in their own behalf. Kemph testified that his home was in Johnson City, Kansas, and that he and Walters left Johnson City for the purpose of finding a place to settle down and get a job. Kemph stated that he and Walters were seated in the Dodge car near the service station on the night of the burglary, when the police officers approached them and asked them if they were having any trouble; that they told the officers they were just resting; that after the officers left Walters said something about breaking into the service station, and Kemph told him...