Wheeler v. State

• Decision Date: 12 December 1898
• Court: Mississippi Supreme Court
• Parties: JOHN AND CHARLES WHEELER v. STATE OF MISSISSIPPI

24 So. 310

76 Miss. 265

JOHN AND CHARLES WHEELER v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

December 12, 1898

November 1898

FROM the circuit court, second district, of Chickasaw county, HON E. O. SYKES, Judge.

Appellants John and Charles Wheeler, were jointly indicted and convicted for receiving stolen property. On the trial, proof was admitted of a joint receiving; also, over the objection of Charles, of the receiving by John without the knowledge of Charles, and, over the objection of John, by Charles without the knowledge of John, without compelling the district attorney to elect as to which defendant he would proceed against, and limiting the proof to that one.

The second instruction given for the state is to the effect that the jury should convict, if it believed from the evidence that there was an agreement between a witness, one Thomas and defendants that Thomas should steal the goods, and they should receive such stolen goods, and that they did receive such stolen goods in pursuance of such agreement, knowing them to be stolen.

Judgment reversed, verdict set aside and cause remanded for new trial.

Stovall & Williams, for appellant.

The court erred in admitting testimony as to Charlie Wheeler's receiving goods from witness in the absence of his co-defendant, John Wheeler; also erred in admitting testimony as to the delivery of stolen goods to John Wheeler in the absence of Charlie Wheeler.

The court seems to have admitted this testimony upon the idea that it was not necessary to show a joint receiving under a joint indictment, but that testimony could be admitted of a receiving by one separate from the other, and that the testimony would be good as to the one.

Mr. Bishop states the law as follows: "Where two persons are jointly indicted for receiving stolen goods, under a single count, one may be convicted and the other acquitted, but not both convicted unless the receiving was joint."

It is the duty of the prosecutor, when it develops in the evidence that the receivings are separate, to elect on which receiving or against which defendant he will ask a verdict, and the one that he asks a verdict against may be convicted and the other discharged, or a separate indictment may be ordered to be found against the other. This rule is founded on the most obvious reason that neither of the defendants should be embarrassed in his trial by the introduction of evidence touching a matter that he is not concerned or connected with. The receiving by one defendant, at a different time and separate from the other, would be a matter in which the other had no interest and with which he was not connected, and it might probably prejudice his case. Hence the rule is that where two are jointly indicted for receiving stolen goods, in a single count, the evidence must show a joint receiving. Bishop's New Criminal Procedure, volume 2, section 988; Roscoe's Criminal Evidence, 872.

Wiley N. Nash, attorney-general, for the state, filed an elaborate brief on the facts of the case.

OPINION

WHITFIELD, J.

The second instruction given by the court for the...