Wellborn v. State

• Decision Date: 09 November 1925
• Docket Number: 25193
• Citation: 105 So. 769,140 Miss. 640
• Court: Mississippi Supreme Court
• Parties: WELLBORN et al. v. STATE. [*]

105 So. 769

140 Miss. 640

WELLBORN et al. v. STATE. ^[*]

No. 25193

Supreme Court of Mississippi

November 9, 1925

Division A

1. CRIMINAL LAW. Where several persons jointly indicted are granted severance, their failure to object to joint trial waives right to be tried separately.

Where several defendants who are jointly indicted for the commission of an offense are granted a severance, but the trial thereafter proceeds against them jointly and not separately without objection on their part, they waive the right to be tried separately.

2. CRIMINAL LAW. Refusal to instruct that testimony of accomplice should be viewed with care and caution held not error.

The practice of instructing the jury in a criminal case in which a conviction is sought on the testimony of an accomplice to view such testimony with care and caution rests in the discretion of the presiding judge, and his refusal to so instruct the jury is not assignable for error.

HON. R S. HALL, Judge.

APPEAL from circuit court of Jones county, Second District, HON. R S. HALL, Judge.

Hassell Wellborn and another were convicted of larceny, and they appeal. Affirmed.

Affirmed.

F. H. Bush, for appellant.

A severance was granted by the court, but the district attorney had both defendants brought in court, and after the third defendant, Buster Lewis, had entered a plea of guilty, he was made a state witness, and the court proceeded to try the other two defendants jointly, which I think was reversible error.

Instruction number eight, in favor of the defendants should have been given, to the effect that the testimony of an accomplice should be weighed with care and caution.

J. L. Byrd, assistant attorney-general, for the state.

The only question presented was a question of fact to be determined by the jury, and that was whether or not Buster Lewis was telling the truth, or whether the two defendants were telling the truth, and the jury found the facts to be as testified by Buster Lewis, and we submit that the same should not be disturbed by this court unless there is manifest error in the instructions, since no point is made on the introduction of any evidence.

An instruction as to the weight to be given the testimony of the accomplice was refused. While such an instruction has been held to be proper, yet we do not think the court would reverse for the failure to give this instruction, especially where the jury has been instructed in regard to the credibility of witnesses, as was done in this case at the request of both the state and the defendant.

OPINION

SMITH, C. J.

This is an appeal from a conviction of larceny. The indictment is against the two appellants and Buster Lewis. The appellants requested, and were granted, a severance, but when the case came on for trial, it was proceeded with against the appellants, but not against Lewis. One of the assignments of error complains of the trial of these appellants together instead of separately, but the record discloses no objection thereto; consequently no complaint thereat can be here made.

The appellants were convicted on the uncorroborated testimony of Lewis who testified for the state that he and the appellants together committed the crime, and another complaint of the appellants is that the court refused to charge the jury that the testimony of Lewis should be viewed with great care and caution.

"At common law the judge was entitled and bound to assist the jury, before their retirement, with an expression of his opinion (in no way binding them to follow it) upon the weight of the evidence. This utterance was made the medium of many useful general suggestions based on experience. The benefit of this experience was thus obtained for them, without any attempt to fetter their judgment by inflexible dogmas unfitted for invariable application as rules of law. One of these general hints was that about accomplices' testimony. But in this country the orthodox function of the judge to assist the jury on matters of fact was . . . (except in a few jurisdictions) eradicated from our...