Summary
holding an instruction authorizing the jury to convict a defendant as an accessory was prejudicial in the absence of evidence that such defendant had aided and abetted co-defendant in commission of a larceny, and in absence of evidence that co-defendant had in fact committed the larceny
Summary of this case from Byrom v. StateOpinion
No. 38431.
June 9, 1952.
1. Criminal law — larceny — aiding or abetting — instructions.
An instruction which authorized the jury to convict an accused if she aided and abetted in the commission of the larceny when there was (1) no evidence to that effect and (2) no proof that the person charged to have been aided had committed the larceny, is reversibly erroneous.
2. Trial — instructions — curative.
Where an abstract proposition of law is incorrectly announced by an instruction and the same or similar propositions of law are thereafter correctly set forth in other instructions in the cause, then if, taking the instructions on both sides as a whole the court can safely affirm that no harm has been done to either side and the right result has been reached, the verdict will not be disturbed — a rule which, of course, does not apply when the other instructions did not cure the error.
Headnotes as approved by Lee, J.
APPEAL from the circuit court of Copiah County; T.P. BRADY, Judge.
W.M. Broome, for appellant.
The court erred in granting each and every instruction given to the State and most especially that certain instruction pertaining to the defendant being an accessory before the fact and aiding and abetting her co-defendant.
The appellant complains of this instruction because (1) it did not require the defendant, Josie Mae Rhymes, to wilfully, unlawfully, and feloniously steal, take and carry away the property alleged in the indictment nor did it require the appellant to have done this in aiding and abetting her, (2) it referred to Josie Mae Rhymes as a co-defendant at a time when a severance had been granted and Josie Mae Rhymes was, therefore, not on trial as a co-defendant, (3) it excluded, ignored and was not based upon the evidence in the case because it shut off from the consideration of the jury any and all evidence concerning the participation in the alleged offense by the third Negro woman.
There is nothing whatsoever in the instruction in the case at bar that would require the jury to have first believed that the principal or so called co-defendant, Josie Mae Rhymes, was guilty of anything before they could have convicted the appellant. In other words, under this instruction the appellant could have been convicted even though Josie Mae Rhymes were wholly innocent. This is not the law of this State. The words, "aided and abetted" are too indefinite as contained in the instruction. See Crawford v. State, 133 Miss. 147, 97 So. 534. It is well settled in this State that the principal must be guilty in order for a conviction to stand against the accessory. Straight v. State, 77 Miss. 693, 27 So. 617; Osborne v. State, 99 Miss. 410, 55 So. 52; Fleming v. State, 142 Miss. 872, 108 So. 143. The State attempted to show in this case that the appellant herself actually stole the property in question and if anyone was the principal, the State's evidence could only prove that the appellant was such and, therefore, appellant urges that she could not have been convicted as an accessory before the fact in view of the record in this case and hence the instruction was not warranted by any evidence in the record.
Geo. H. Ethridge, Assistant Attorney General, for appellee.
Lizzie Mae Craft, alias Lizzie Mae Carson, was jointly indicted with her daughter, Josie Mae Rhymes, for grand larceny. Josie Mae entered a plea of guilty to trespass, less than larceny. Lizzie Mae was found guilty by the jury, and was sentenced to serve a term of four years in the state penitentiary. From the judgment entered, she appeals.
The evidence by the owner of the store and her clerk was sufficient to warrant the jury in finding the appellant guilty of the felonious taking of the suit of clothes. The officers pursued both women for several city blocks before apprehending them, at which time they took from Josie Mae the package containing the suit. Both women and the suit were immediately identified by the owner and her clerk.
Josie Mae, as a witness for her mother, testified that neither she nor her mother stole the suit; but that she was holding it for another woman, who had been in the store with them.
In this situation, the court granted the following instruction for the State: "The court instructs the jury for the state that it is the law of this state, that every person who shall be an accessory to any felony, before the fact, shall be deemed and considered a principal, and may be punished as such; and further instructs the jury that if you believe from all of the creditable evidence in this case beyond all reasonable doubt and to the exclusion of every reasonable hypothesis, that the defendant, Lizzie Mae Craft alias Lizzie Mae Carson, aided and abetted her codefendant, Josie Mae Rhymes in the commission of the offense of larceny as charged in the indictment, then she is guilty as a principal and you should so find."
(Hn 1) This instruction was erroneous for at least two reasons: (1) It authorized the jury to find the defendant guilty, if she aided and abetted in the commission of the larceny, although there was no evidence to that effect. (2) The instruction peremptorily told the jury that Josie Mae committed the larceny in spite of the fact that the State offered no proof of her guilt of larceny — she denied it herself — and her plea of guilty was to trespass only.
(Hn 2) The true rule as to whether or not an erroneous instruction constitutes prejudicial error was stated in Harper v. State, 83 Miss. 402, 35 So. 572, 575, as follows: "Where an abstract proposition of law is incorrectly announced by an instruction, and the same or similar propositions of law are thereafter correctly set forth in other instructions in the cause, then if, taking the instructions on both sides as a whole, the court can safely affirm that no harm has been done to either side, and that the right result has been reached, the verdict of the jury will not, in such cases, be disturbed." But the other instructions did not cure this error.
For the error in granting this instruction, the judgment of the lower court is reversed, and the cause is remanded for a new trial.
Reversed and remanded.
Roberds, P.J., and Kyle, Arrington and Ethridge, JJ., concur.