Wilson v. State

• Citation: 16 So. 304,71 Miss. 880
• Court: United States State Supreme Court of Mississippi
• Decision Date: 23 April 1894
• Parties: TOM WILSON v. THE STATE

16 So. 304

71 Miss. 880

TOM WILSON v. THE STATE

Supreme Court of Mississippi

April 23, 1894

FROM the circuit court of Grenada county. HON. C. H. CAMPBELL Judge.

Appellant was convicted of burglary, principally upon the testimony of one Ed Wall, an accomplice. The testimony showed that appellant and Wall broke and entered a store, and took therefrom certain goods, including some white knit goods. Irene and Clyde Crawford, witnesses for the State, testified that, soon thereafter, they saw the defendant, Tom Wilson, in a garden near a house in which the goods were afterward found, with a white hood on his head, but that he made no effort to conceal the same from them, though he knew they saw him with it on. There was also other evidence tending to show that the defendant had in his possession some of the property alleged to have been stolen. He denied all connection with the crime.

The court gave a number of instructions at the instance of defendant. Among them, the following were modified as indicated below:

"The court instructs the jury that the evidence of an accomplice should be weighed with great caution [jealousy and distrust ], and the jury may disbelieve such testimony altogether, if they believe it untrue, the jury being the sole judges of the credibility of the evidence.

"Although Ed Wall, the alleged accomplice, swears that defendant assisted him in the commission of the crime, yet the jury are not bound to accept his evidence as true, or any part thereof, if they believe it untrue, and the jury should weigh the testimony of an accomplice with great care and caution [distrust and suspicion ]."

The words in brackets were stricken out, and those in italics were added by the court. Defendant excepted to the modifications.

The following instructions asked by defendant were refused:

"9. The fact, if it be true, that property recently stolen was seen in the possession of the defendant, is no evidence that he is guilty of the burglary.

"10. The court instructs the jury that, although they may believe from the evidence that the defendant had on his head a white hood when he was in the garden, yet this is no evidence that the defendant committed the alleged burglary.

"11. The jury can look to no material fact or circumstance to establish any other fact or circumstance, unless the fact or circumstance looked to or relied upon has first been established to the exclusion of every reasonable doubt."

Affirmed.

William C. McLean, for appellant.

1. While a conviction upon the uncorroborated testimony of an accomplice is good, the court will reverse where the slightest error appears. Hughes v. State, 58 Miss 355.

It was error to modify defendant's instructions by striking out the words "jealousy and distrust." Keithler v State, 10 Smed. & M., 192; White v. State, 52 Miss. 216; Green v. State, 55 Ib., 454; Cheatham v. State, 67 Ib., 335.

All courts agree that it is the duty of the trial courts to instruct as to the suspicion and distrust attaching to the testimony of an accomplice. It is not sufficient merely to charge that it is to be received with great caution. All testimony in criminal cases must be thus received.

It was improper to insert the words "if you believe it to be untrue." The effect of this was to impress the jury with the idea that the judge believed the testimony, and thought there should be a conviction. It is the law that the testimony of an accomplice is not entitled to the same credibility as that of other witnesses, and it is the duty of the court to instruct upon this and all other legal points.

2. It was error to refuse defendant's tenth instruction. There was no sufficient identification of the hood as part of the stolen property, and the jury could not look to the circumstance that defendant had something on his head as evidence of guilt.

3. The refusal of defendant's eleventh instruction was error. This instruction announces a rule of common sense as well as law. Webster's Case, 5 Cush. (Mass.), 295. It was material and extremely important in this case.

For the granting of the state's instructions and the refusal to give those asked by defendant, the judgment should be reversed.

Frank Johnston, attorney-general, for the state.

Defendant's ninth instruction was properly refused. Davis v. State, 50 Miss. 86; Foster v. State, 52 Ib., 695.

So of the tenth. The particular fact referred to, while of itself not evidence of guilt, when taken with other facts proved, tended to show the guilt of defendant. It was proper to admit the evidence, and leave its weight to the jury without comment. Hogsett v. State, 40 Miss. 522.

The eleventh instruction incorrectly announced the rule of law applicable in cases of circumstantial testimony. It would have only perplexed the jury.

The law was correctly given, and the defendant was not prejudiced by the refusal of any of the instructions asked. McGuire v. State, 37 Miss. 369.

The modifications of defendant's instructions as to the testimony of the accomplice were clearly correct. Cheatham v. State, 67 Miss. 335.

OPINION

CAMPBELL, C. J.

The testimony in this case is very satisfactory as a support for the verdict. The convict and accomplice, Wall, is corroborated in his evidence by testimony tending strongly to convict Tom Wilson. Were this not the case, the jury might have convicted on the uncorroborated testimony of the accomplice, as has been often held.

We find no reversible error in the instructions given or refused. The court instructed liberally for the defendant. It told the jury "the testimony of an accomplice should be weighed with great caution, and the jury may disbelieve such testimony altogether, if they believe it untrue, the jury...