Willoughby v. State

• Court: Mississippi Supreme Court
• Writing for the Court: MCGOWEN, J.
• Citation: Willoughby v. State, 154 Miss. 653, 122 So. 757 (Miss. 1929)
• Decision Date: 10 June 1929
• Docket Number: 27811
• Parties: WILLOUGHBY v. STATE

122 So. 757

154 Miss. 653

WILLOUGHBY v. STATE

No. 27811

Supreme Court of Mississippi

June 10, 1929

Division A

1. CRIMINAL LAW. Trial court cannot be held to have erred in permitting testimony of different offense in absence of objection thereto.

Trial court cannot be held to have erred in permitting state to introduce proof of different offense, where defendant not only did not interpose an objection, but assisted district attorney in bringing out facts in detail.

2. CRIMINAL LAW. Refusal to admit impression of finger prints on bottle in comparison with impression of defendant's finger prints held not erroneous under circumstances.

Refusal to admit evidence of impression of finger prints on bottle in comparison with impression of defendant's finger prints held not erroneous, in absence of showing that others could not have handled bottle from which impression was taken, or that all finger prints susceptible and capable of being developed thereon had been brought into court.

3. CRIMINAL LAW. Generally, evidence of other crimes is inadmissible.

Generally evidence of other crimes than the one for which accused is being tried is inadmissible.

4. CRIMINAL LAW. Evidence identifying accused as one committing crime will not be excluded merely because tending to prove another offense.

Evidence identifying accused as person who committed robbery is not to be excluded simply because it proves or tends to prove that he was guilty of another and independent crime.

5. CRIMINAL LAW. Admission of twenty-dollar bill, claimed to have been stolen in subsequent robbery by same defendant, for purpose of corroboration of identification, held erroneous. In prosecution for robbery, the admission in evidence of twenty-dollar bill claimed to have been stolen in a subsequent robbery by the same defendant held erroneous, in view of fact that it was offered not for purpose of identification, but for corroboration of testimony as to identity of defendant.

HON. W H. POTTER, Judge.

APPEAL from circuit court of Hinds county, First district, HON. W H. POTTER, Judge.

W. V. Willoughby was convicted of robbery, and he appeals. Reversed and remanded.

Case reversed and remanded.

E. W. Patrick, of Jackson and Sam McGuire, of McComb, for appellant.

Generally evidence of other crimes than the one for which accused is being tried, is inadmissible.

Dabney v. State, 33 So. 973; 3 Rice's Evidence, ch. 25; Regina v. Geering, 18 L. J. M. C. 215; Shaffner v. The Commonwealth, 72 P. 60, 13 Am. Rep. 649; Com. v. Choate, 105 Mass. 451; Reg. v. Cobden, 3 Fost. & F. 833; People v. Wood, 3 Parker, Cr. R. 681; Com. v. Ferrigan, 44 P. 386; Rex v. Clewes, 4 Car. & P. 221; Whart., Crim. Ev., sec. 50, and notes; Reg v. Francis, L. R. 2 C. 128; Slaydon v. State, 58 So. 977; Collier v. State, 64 So. 373, 106 Miss. 613; Raines v. State, 81 Miss. 489, 33 So. 19; Baygents v. State, 110 So. 114; Dabney v. State, 82 Miss. 252, 33 So. 973; Herd v. State, 137 Miss. 178, 102 So. 295.

C. O. Jaap, of Jackson, for appellant.

Evidence for the state of other offenses than the one for which defendant is being tried is inadmissible except for the purpose of identification.

Baygents v. State, 110 So. 114; Collier v. State, 64 So. 373; Slaydon v. State, 58 So. 977.

Rufus Creekmore, Assistant Attorney-General, for the state.

Proof of an offense other than that for which the defendant is being tried is admissible for the purpose of identifying the defendant as the person who committed the offense for which he was being tried.

King v. State, 66 Miss. 502, 6 So. 188; Dabney v. State, 82 Miss. 252, 33 So. 973; Collier v. State, 106 Miss. 613, 64 So. 373; Hurd v. State, 137 Miss. 178, 102 So. 293.

Testimony of finger print experts to the effect that certain finger prints found at the scene of the commission of a crime correspond to finger prints taken from the defendant's fingers is admissible upon the question of identification.

8 R. C. L., sec. 175, p. 183; 16 C. J., sec. 1550, p. 755; People v. Jennings, 252 Ill. 534, 96 N.E. 1077; 43 L. R. A. (N. S.) 1206 and note; Moon v. State, 198 P. 288, 16 A. L. R. 362, and Note; Page v. State, 118 So. 605; Bouchillon v. State, 118 So. 726.

Argued orally by E. W. Patrick and J. Sam McGuire, for appellant, and by Rufus Creekmore, Assistant Attorney-General, for appellee.

OPINION

MCGOWEN, J.

The appellant, W. V. Willoughby, was convicted of the crime of robbery by putting J. W. Cox in fear and stealing from the Bank of Madison the sum of one thousand four hundred sixty-nine dollars and thirty-five cents, on a change of venue from Madison to Hinds county, and was sentenced to serve a term of ten years in the state penitentiary, from which sentence this appeal is prosecuted.

The record is lengthy, and no practical good would come of incumbering this opinion with a detailed statement of the facts contained in the record.

On the morning of April 20, 1928, the Bank of Madison was robbed, and the amount mentioned above was stolen from it and carried away by the robber. The cashier of the bank, Mr. Cox, was forced, at the point of a pistol, to hold up his hands and submit to the robbery of the coffers of the bank. The defendant, the appellant, Willoughby, was positively identified as the person committing the robbery by Messrs. Cox, Mixon, and Edmund Taylor. There were also witnesses in the village of Madison on this occasion who were positive that Willoughby was not the man who was seen to enter the bank and leave the town driving a blue Hudson coach.

The appellant offered evidence that on this particular morning he was in the office of his father, having driven with his father and mother to the office of his father in the Merchants' Bank & Trust Company building, where he remained until about eleven o'clock, going from there in the company of a friend to the Crescent pool room, where he played pool until twelve o'clock, and that his first knowledge of the robbery of this bank was when he, with his friend, read the account thereof in the Jackson Daily News.

It appears from this record that on the night of Tuesday, May 29, 1928, some one knocked on the door of the home of J. W. Cox, cashier of the bank. Upon opening the door, Cox was confronted by two men with drawn pistols, one of whom he identified as Willoughby, and the same man, according to his statement, who had robbed the bank theretofore. Willoughby secured from Cox the combination of the safe, leaving him and Mrs. Cox under the guard of his associate. He returned to the home of Cox after having been gone for some time and stated that he could not open the safe, and, with his gun drawn forced Cox to go to the bank and open the safe, whereupon the bank was again robbed of a considerable sum. Cox kept in the closet of his home a bottle containing some wine, and another containing some whisky. Mrs. Cox fainted upon the entrance of these two men into her home, and when Mr. Cox started toward the closet to get some wine to revive and stimulate her, the appellant, Willoughby, ordered him to stay away from the closet, reaching for it himself instead, and in doing so placed his hands upon the whisky bottle as well as the wine bottle in order to administer a stimulant to Mrs. Cox. The identification of Willoughby as one of the men present was positive and complete according to the evidence of Mr. and Mrs. Cox.

The two bottles were turned over to the representative of a detective agency and the impression of the finger prints on both the wine and whisky bottles was developed therefrom. A photograph of the impression of the finger prints on the neck of the wine bottle was undertaken to be offered in evidence by the appellant, together with the impression of Willoughby's finger prints, which had been taken by the detective agency, for comparison, and the appellant offered to show that the impression of the finger prints on the neck of the bottle was not that of any one of his ten finger prints. It was further shown that there were other finger prints on this particular bottle capable of being developed which were not developed.

Mr. Cox testified that the particular finger prints on the wine bottle were not his or Mrs. Cox's and so far as he knew no one had touched the bottles except the appellant in this case. He stated, however, that his daughter might have handled the bottles, and, on occasions, a servant. It is not explained in this record what became of the whisky bottle, or the finger prints developed from the impressions thereon, nor of the developments of the other impressions of finger prints taken from the wine bottle.

The chief of the finger print bureau of the city of New Orleans testified that the finger prints on the neck of the bottle were not those of the appellant.

The court heard all of this evidence out of the presence of the jury, and sustained the state's objection. The appellant offered evidence to show, which, if believed, would be a complete alibi on the night of this second robbery. To all practical intents and purposes, the details of both crimes of robbery were gone into by the state and the appellant.

During the course of the trial, the court, over the objection of the appellant, permitted the state to introduce a certain twenty-dollar bill, which had written on the white part of the face of the bill the figures "three hundred and sixty," not originally stamped there, the figures, according to the witness, having been apparently written with a blunt lead pencil. The number of the bill, as stamped by the government, was F-14791291 A. The witness, Cox, was not positive that this was the bill which was in the bank before the second robbery.

The chief of police of the city of Jackson testified that upon a second search of the...