Summary
In Crosby v. State, 179 Miss. 149, 175 So. 180 (1937), cited by appellant, the Court held that proof that an individual is a principal in an offense is not sufficient to show that he is an accessory to that offense.
Summary of this case from State v. HillOpinion
No. 32743.
June 14, 1937.
1. CRIMINAL LAW.
In prosecution for statutory offense of being accessory after the fact to a murder, proof of murder by alleged principal as original proposition was not error, notwithstanding defendant's admission of murder by alleged principal (Code 1930, section 770).
2. CRIMINAL LAW.
Whether murder by alleged principal should be proved as original proposition in prosecution for statutory offense of being accessory after the fact to a murder, wherein defendant admitted murder by alleged principal, rested in trial court's sound discretion, which would not be interfered with in absence of manifest abuse (Code 1930, section 770).
3. CRIMINAL LAW.
Under statute penalizing the aiding of a felon to escape, person cannot be both a principal and an accessory after the fact (Code 1930, section 770).
4. CRIMINAL LAW.
Under statutes, assistance rendered principal before felony is completed to avoid arrest therefor makes person rendering assistance an "accessory before and not after the fact" (Code 1930, sections 769, 770).
5. CRIMINAL LAW.
In prosecution for statutory offense of being an accessory after the fact to the murder of a woman, the state must prove that the alleged principal feloniously killed the woman and that thereafter the defendant, with actual knowledge thereof, committed specific acts with intent thereby to enable the alleged principal to escape or to avoid arrest, trial, conviction, or punishment (Code 1930, section 770).
6. CRIMINAL LAW.
In prosecution for statutory offense of being an accessory after the fact to the murder of a woman, evidence that defendant was himself a principal in the felonious killing of the woman was not admissible (Code 1930, section 770).
7. CRIMINAL LAW.
In prosecution for statutory offense of being an accessory after the fact to the murder of a woman, evidence that defendant procured pistol with which woman was killed without knowledge or consent of its owner and gave it to murderer, and that defendant, with knowledge that murderer had killed woman, surreptitiously returned pistol to the place from which he had procured it, was competent as bearing on defendant's knowledge that murderer had killed woman with the pistol (Code 1930, section 770).
8. CRIMINAL LAW.
In prosecution for statutory offense of being an accessory after the fact to the murder of a woman, evidence that defendant knew when he gave pistol to murderer that murderer intended to kill woman with pistol was admissible (Code 1930, section 770).
9. CRIMINAL LAW.
In prosecution for statutory offense of being an accessory after the fact to the murder of a woman, admission of defendant's confession that he concealed pistol was not error, in view of evidence as to concealment of pistol (Code 1930, section 770).
10. CRIMINAL LAW.
In prosecution for statutory offense of being an accessory after the fact to the murder of a woman, admission of evidence as to defendant's burning of overalls worn by murderer at time of killing was not error (Code 1930, section 770).
11. CRIMINAL LAW.
In prosecution for statutory offense of being an accessory after the fact to the murder of a woman, evidence that defendant at first denied any knowledge of murder when questioned by police shortly thereafter, and that he subsequently admitted that he was present and saw the murder, was not admissible where defendant was charged with the homicide at time of questioning (Code 1930, section 770).
12. CRIMINAL LAW.
In prosecution for statutory offense of being an accessory after the fact to the murder of a woman, instruction that principal in commission of felony cannot thereafter become an accessory after the fact, and that defendant could not be convicted of being an accessory after the fact if he himself murdered woman or assisted another so to do, should have been granted (Code 1930, section 770).
APPEAL from the county court of Lauderdale county. HON. A.M. BYRD, Judge.
Nate S. Williamson, Jesse H. Graham and J.A. Riddell, all of Meridian, for appellant.
Surely there could be no good purpose in introducing evidence as to anything that transpired prior to the killing of Lizzie Marsh in the prosecution of the appellant for being an accessory after the killing except to establish that she had actually been killed and murdered by John Wesley Williams. So when the defendant, by his counsel, admitted in the very beginning that Lizzie Marsh was killed and murdered by John Wesley Williams in Lauderdale County, Mississippi, on the date referred to in the indictment, then it was certainly immaterial, incompetent, irrelevant and highly prejudicial to introduce the character of evidence that was introduced over the objection of appellant as to what transpired between her and appellant and the murderer John Wesley Williams and other people with reference to the pistol about which the witnesses testified, and certain cartridges and gambling games and plans for a big negro social for the purpose of selling whiskey, love affairs between the deceased and the admitted murderer of her, and her illicit relations with him and a negro jail bird, exchanging drinks of liquor, trying to pawn the pistol, trying to leave the pistol with third parties, threats made by John Wesley Williams, the admitted murderer, against the deceased, and exhibitions of the pistol in connection therewith at a time when the appellant was not present, etc.
Counsel for appellant anticipating that the prosecuting attorney would proceed to actually try the appellant again for murder in an effort to convict him of the crime of accessory after the fact, made the above mentioned admissions so that it would not be necessary at all to go into any such testimony in order to lay a predicate for the introduction of evidence as to what transpired after the murder of said Lizzie Marsh.
If the evidence as to what transpired prior to the killing of this woman be stricken out or ignored as if it were not in the record at all, except the naked fact that she was killed and murdered by John Wesley Williams who was duly tried and convicted of murder, then the evidence that transpired after the killing would be so flimsy that the prosecution could not hope for it to receive much consideration at the hands of a jury or a court. The prosecution evidently knew this and insisted upon doing what it did, with the permission of the trial.
Harper v. State, 35 So. 572.
This court will please bear in mind that most of the objections and more especially the objections to the testimony as to what transpired prior to the killing of Lizzie Marsh was objected to by appellant and at various times he requested that his objections be considered as continuing objections to any and all testimony of like or similar character at any time during the trial and the court expressly recognized the objections as continuing objections but overruled them.
Broach v. W. Shoe Co., 21 So. 300.
All through this record from beginning to end will be found remarks by witnesses made concerning statements and confessions of the defendant, John Wesley Williams, which were made out of the presence of the appellant.
In joint indictment for murder, threats made out of presence of accused by co-conspirators before conspiracy is established are inadmissible against accused.
Rich v. State, 86 So. 770, 124 Miss. 272; Manning v. State, 129 Miss. 179, 91 So. 902.
We think that the trial court should not have permitted the testimony taken of the appellant on the trial for murder to have been read in evidence over the objection of defense counsel in the State's case in chief.
Steele v. State, 24 So. 910.
The statements made by and activities of John Wesley Williams after he and Crosby were arrested were not competent because under the admissions of the appellant there was not any issue to be tried as to whether or not he killed and murdered Lizzie Marsh and it was not admissible in any event against the appellant Crosby on the trial of being an accessory after the fact of the same murder.
Lynes v. State, 36 Miss. 617; Osborne v. State, 55 So. 52.
Evidence as to what transpired prior to the death of Lizzie Marsh was incompetent as against the appellant Crosby while being charged as an accessory after the fact to her murder for this further reason: it was impossible for appellant Crosby to do or say anything prior to her death which would warrant the jury in finding a verdict of guilty of accessory after the fact of her murder.
Harell v. State, 39 Miss. 702; Harper v. State, 35 So. 572.
Evidence of statements made or testimony rendered by Johnie Crosby introduced by the State in its case in chief was inadmissible because the corpus delicti of the crime charged in the indictment on which he was being tried, that is of accessory after the fact, had not been proven, in fact was never proven separate and apart from statements and admissions made by and testimony rendered by the appellant, Johnie Crosby, and we think that his statements were such as to exonerate him and show his innocence rather than his guilt, and that the corpus delicti of the crime charged in the indictment has therefore never been proven even with his admissions.
Rayborn v. State, 76 So. 639.
If the evidence of Police Detective Harbour, who was thoroughly impeached, was admissible and was such as the jury had a right to believe, the appellant was entitled to the requested instruction reading as follows: "The court instructs the jury that if you believe from the evidence that John Wesley Williams and Johnie Crosby both killed and murdered Lizzie Marsh, you should find the defendant not guilty."
An accessory before the fact to a murder under the laws of the State of Mississippi is a principal and is, therefore, guilty of murder. And according to the testimony of Harbour Crosby admitted to him that there was not any supper at Rosehill to go to and that he and John Wesley Williams had represented to Lizzie Marsh that there was a supper out there in order to decoy her away from her home and take her through this paupers' cemetery in order that they may kill her. This is the substance of Harbour's testimony with reference to this phase of the case. No such testimony was given on the murder trial of Crosby or on the murder trial of John Wesley Williams. This testimony was given by Harbour for the first time when Crosby was being tried on the charge of accessory after the fact to the murder of Lizzie Marsh. And if this testimony was believable and competent the jury had a right to reach the conclusion that Crosby was guilty of the murder of Lizzie Marsh and if so he could not be found guilty of the crime charged in the indictment on which he was tried, that of accessory after the fact.
16 C.J. 140, sec. 141-C; Howard v. State, 9 Okla. Cr. 337, 131 P. 1100; Fleming v. State, 108 So. 143.
Denial of knowledge of a crime when questioned by public officers would not, it has been held, render the person an accessory after the fact.
16 C.J. 140, sec. 144-F.
Shakespeare said that a "Rose by another name would smell as sweet," so the State again tried Crosby for murder under another name, that of accessory after the fact, and the only reason why the jury did not convict him of murder on this second trial was because they did not know how to write the verdict. About all that was necessary to get any Negro convicted of the murder of that woman was just to charge them with the killing of her in a pauper's graveyard.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
The crimes of murder and accessory after the fact of murder are separate and distinct crimes (sections 985, Code of 1930, defining murder, and 770, defining accessories after the fact). The punishment prescribed by law for the two crimes is vastly different (section 770 and 987, Code of 1930). The fact that the witnesses used in an attempt to show defendant's guilt of murder at the former trial were used to establish the guilt of accessory after the fact of murder can make no difference.
Nixon v. State, 148 Miss. 224, 114 So. 346.
To sustain a plea of former jeopardy it must appear that the offenses are identical.
Price v. State, 104 Miss. 288, 61 So. 314; Lovern v. State, 140 Miss. 635, 105 So. 759.
It has been rightly said that "A guilty accessory presupposes a guilty principal." This is equally true of accessories, both before and after the fact. Before one may be convicted of a charge of being an accessory to crime, it must be proved that a crime has been committed by another.
Osborne v. State, 99 Miss. 410, 55 So. 52; Fleming v. State, 142 Miss. 872, 188 So. 143; Harrell v. State, 39 Miss. 702.
Proof of the details of the homicide, as well as evidence of events leading up to and throwing light on the homicide itself, are admissible in this case for two good and sufficient reasons: first, to show the commission of the principal offense and point out the principal offender; and, second, to show scienter on the part of the accessory after the fact as bearing on his guilt vel non as such accessory.
There is absolutely no doubt but that Lizzie Marsh was murdered and John Wesley Williams murdered her. There is no question but that this defendant knew the crime of murder had been committed. The only fact questioned here is whether Crosby violated the provisions of section 770, Code of 1930, after the murder.
Here we have a defendant who was present and knew of the homicide and with this knowledge helped the murderer dispose of garments worn by him at the time of the homicide, assisted him in getting a place to "wash up" and concealed the gun with which the killing was done. Afterwards, he denied any knowledge whatsoever of the crime itself. We submit, on the showing made, defendant was an accessory after the fact of the murder and his conviction as such is sustained by the evidence.
There was a motion to exclude all of the witnesses' testimony, but the motion was not specific enough to separate competent from incompetent testimony. It was proper to overrule the motion to exclude.
Wampold v. State, 170 Miss. 732, 155 So. 350.
It is necessary for the state to prove that a felony has been committed and that the crime is complete. It must prove the criminal agent.
Guilty knowledge or scienter that the person aided has in fact committed the felony is a sine qua non of the offense of accessory after the fact of murder. In other words, the accessory must know that the crime has been committed and that the person he is aiding has committed it. It is often a difficult task to show guilty knowledge.
King v. State, 123 Miss. 532, 86 So. 339.
As further showing that evidence to establish guilty knowledge is admissible, even though it may incidentally disclose the commission of another offense.
Stift v. State, 152 Miss. 246, 119 So. 178; People v. Morani, 236 P. 135; Goodfellow v. People, 224 P. 1051; State v. Beam, 115 S.E. 176; State v. Maguire, 169 P. 175; Dennison v. State, 88 So. 211.
In the case at bar the State not only had the right but the duty to prove that the crime of murder had been committed and point out the guilty agent, but also the right and the duty to show that the defendant here knew of these things and in showing knowledge on his part it had the right to show how and in what manner he knew them. Evidence of his presence at and preceding the homicide with Williams and deceased and his attitude toward the two of them, although not of itself sufficient to make him particeps criminis of murder, should be admitted in evidence as showing his personal and direct knowledge of the commission of the offense and the offender. Constructive knowledge, say the books, is not sufficient. One's knowledge to make him liable as an accessory after the fact must be personal, direct.
Harrison v. State, 69 Tex. Cr. 291, 153 S.W. 139; Fleming v. State, 142 Miss. 872, 108 So. 143.
We submit that if the evidence complained of was or would be admissible as against Williams, if he were being tried for murder as an original proposition, such evidence would be admissible in the case at bar, because the State is bound to show the guilt of Williams to the present jury beyond a reasonable doubt from the evidence. Any evidence above and beyond that calculated to show the character of the homicide and to point out the criminal agent, which shows, or tends to show, knowledge on the part of Crosby would be competent and admissible in this prosecution.
Villareal v. State, 80 Tex. Cr. 133, 189 S.W. 156.
Mere silence as to one's knowledge of a felony, with no intent to aid the felon, or mere failure to inform the public authorities, does not make one an accessory after the fact.
16 C.J. 140, sec. 144; Davis v. State, 96 Ark. 7, 130 S.W. 547.
While Crosby's silence, of itself, even under the circumstances portrayed by the record in this case, might not render him liable as an accessory after the fact, nevertheless, I do not believe for this reason alone the fact that he denied knowledge should be excluded from the jury, for the reason that it has a tendency to show his "intent" to aid and assist Williams following his murder of Lizzie Marsh. Evidence which shows his attitude, subsequent to the offense, not only his unwillingness, failure or refusal to disclose his knowledge, but his absolute denial of same, should be competent to show that, possessed of such knowledge, he intended to shield the perpetrator of the crime.
"Intent" can rarely be shown directly. It is more often than not a state of mind and can only be arrived at by looking at what has actually been done. Anyone is presumed to intend that which he does. By taking many acts, all consistent one with another, we are able to see with reasonable certainty what one's intent is.
Appellant was convicted of being an accessory after the fact to the murder of Lizzie Marsh. He was jointly indicted with John Wesley Williams for this murder. Williams was convicted, and has since died. The appellant was also convicted, but on appeal to this court his conviction was set aside, for the reason that it was not supported by the evidence, and he was ordered discharged. 168 So. 660. Thereafter he was indicted under section 770, Code 1930, and charged with having aided or assisted John Wesley Williams, knowing that he had murdered Lizzie Marsh, with intent to enable him to escape and avoid arrest.
After the jury was impaneled, and before any evidence was introduced, the appellant's counsel formally advised the court and the district attorney that the appellant admitted that John Wesley Williams murdered Lizzie Marsh, and was tried and convicted therefor. The district attorney declined to accept this admission, and over the appellant's objection was permitted to prove the murder of Lizzie Marsh by Williams, without reference to this admission. Had this admission been accepted and acted on, the trial would have been shortened, and the court's time thereby conserved. But we cannot say that the court erred in permitting the district attorney to prove the murder as an original proposition. There seems to be no absolute rule on this subject. Its solution rests in the sound judicial discretion of the trial court, which will not be interfered with unless manifestly abused. 5 Wigmore on Evidence (2 Ed.), section 2591.
On the trial of this case the State, as the Attorney-General frankly admits, introduced practically all of the evidence introduced by it when the appellant was tried for the murder and also proved on confession by the appellant, not there given in evidence, that the murder was committed by him and Williams jointly.
The crime of accessory after the fact is thus defined by section 770, Code 1930: "Every person who shall be convicted of having concealed, received, or relieved any felon, or having aided or assisted any felon, knowing that such person had committed a felony, with intent to enable such felon to escape or to avoid arrest, trial, conviction or punishment, after the commission of such felony, on conviction thereof," etc.
This statute presupposes, as the common law is, that a person assisting one who has committed a felony to avoid being arrested therefor was not himself a principal in the commission of the felony; for one cannot be such and also an accessory thereto after the fact. 1 Brill, Cyc. Crim. Law, section 244; 1 Bishop, Crim. Law (8 Ed.), section 663; Reg. v. Hilton, 8 Cox C.C. 87; Howard v. State, 9 Okla. Cr. 337, 131 P. 1100; People v. Chadwick, 7 Utah, 134, 25 P. 737. Contra at common law as to an accessory before the fact: Bishop op. cit. section 664; 2 Hawk. P.C., Curwood Ed., c. 29, section 1; but see section 769, Code 1930. Assistance rendered the principal before the felony is completed to avoid arrest therefor makes the one rendering the assistance an accessory before and not after the fact. Harrel v. State, 39 Miss. 702, 80 Am. Dec. 95, 2 Morris' St. Cases, 1472.
In order to convict the appellant, the State must prove (1) that Williams feloniously killed Lizzie Marsh, and (2) thereafter the appellant, with knowledge thereof, committed specific acts with intent thereby to enable Williams to escape, or to avoid arrest, trial, conviction, or punishment. In so doing it may not introduce evidence disclosing that the appellant was himself a principal in the felonious killing of Lizzie Marsh. Quite a bit of the State's evidence violated this rule, e.g., two separate confessions of the appellant that he participated jointly with Williams in the killing of Lizzie Marsh. It would serve no good purpose to point out the other such evidence, and so to do would needlessly prolong this opinion. The foregoing will constitute a sufficient guide for the court below on the return of the case thereto.
The State's evidence discloses three acts of the appellant by which it is claimed he attempted to assist Williams in avoiding arrest: (1) He concealed the pistol with which Williams shot Lizzie Marsh, knowing that it had been so used; (2) he destroyed the overalls worn by Williams when he committed the crime; and (3) when questioned by police officers shortly after the commission of the crime, he falsely denied having any knowledge thereof.
The concealment of the pistol was proven by evidence that the appellant before the homicide procured the pistol with which Williams killed Lizzie Marsh, without the knowledge or consent of its owner, a relative of the appellant, and gave it to Williams; and, with knowledge that Williams had killed Lizzie Marsh therewith, surreptitiously returned it to the place from where he had procured it. This evidence by itself alone does not disclose that when the appellant gave the pistol to Williams he knew that Williams intended to kill Lizzie Marsh therewith, and was, therefore, competent for the reason that it has some bearing on the appellant's knowledge that Williams had killed Lizzie Marsh with the pistol. Other evidence offered by the State which tends to disclose that when the appellant gave the pistol to Williams he knew that Williams intended to kill Lizzie Marsh with it should not have been admitted. The evidence as to the concealment of the pistol by the appellant was sufficient to justify the admission of a confession by the appellant, offered by the State, that he concealed the pistol. Consequently, the court committed no error in admitting this confession.
No error appears in the admission of evidence as to the burning by the appellant of the overalls, which from the evidence the jury were warranted in believing were worn by Williams when he killed Lizzie Marsh.
The evidence that the appellant, shortly after the killing of Lizzie Marsh, when questioned by police officers relative thereto, at first denied any knowledge thereof and afterwards admitted that he was present and saw Williams commit the crime, should not have been admitted. It is not necessary for us to determine whether such a denial would constitute one an accessory after the fact, if made with intent to conceal the commission of the crime, for here, when the appellant was questioned by the police officers, he was himself in custody charged with having killed Lizzie Marsh, and his denial of knowledge thereof was evidently made for the purpose of shielding himself. 16 C.J., 140.
The court refused to grant the appellant an instruction to the effect that the principal in the commission of a felony cannot thereafter become an accessory after the fact, and, if they believed from the evidence that the appellant himself murdered Lizzie Marsh, or assisted Williams so to do, he could not be convicted of being an accessory thereto after the fact. It follows from what we have heretofore said that this instruction should have been granted.
Reversed and remanded.