Opinion
No. 39987.
March 12, 1956.
1. Criminal law — receiving stolen property — instruction — unexplained flight — not warranted under evidence.
In prosecution for receiving stolen property with value of less than $25, facts did not warrant giving of instruction to effect that inference could be drawn from defendant's unexplained flight, where defendant gave plausible and uncontradicted explanation of reasons for his absence from county. Secs. 2249, 2538, Code 1942.
2. Criminal law — instructions — unexplained flight of defendant — should be given when.
Instructions on flight of defendant, if given at all, should be used only in cases wherein the circumstance has considerable value, as such an instruction is primarily argumentative.
3. Criminal law — instructions — unexplained flight of defendant as inference of guilt.
Instruction, even in proper case, to the effect that unexplained flight is a circumstance from which an inference of guilt may be drawn and considered with all the other facts and circumstances connected with the case was practically a peremptory statement that defendant filed and that jury could consider this with other facts in making an inference of guilt and should be qualified so as to be related to the facts of the case and also to tell jury that jury must first find the facts before it could use flight along with other circumstances to support inference of guilt.
4. Criminal law — instructions — assuming as true a material fact — the truth of which was for jury's determination — was erroneous.
Instruction which assumed as proved facts that the two automobile tires had been stolen, that defendant knew the tires to have been stolen, and that defendant willfully, unlawfully and feloniously bought the tires, which facts were principal facts in issue, was erroneous, and clause at beginning of the instruction that "if they believe from the evidence beyond a reasonable doubt" could not be said to qualify the succeeding statements either grammatically or in common sense so as to eliminate the error. Secs. 2249, 2538, Code 1942.
5. Criminal law — same — same — same.
Instruction which assumes as true a material fact, the truth of which is for the determination of the jury, is erroneous.
Headnotes as approved by Ethridge, J.
APPEAL from the Circuit Court of Winston County; HENRY L. ROGERS, Judge.
Strong Smith, Louisville, for appellant.
I. The indictment in this case does not describe the property alleged to have been stolen with reasonable certainty, nor does it contain an averment that a more definite description of the property is to the grand jury unknown, or words to that effect; and, therefore, the demurrer filed to the indictment should have been sustained. Campbell v. State (Miss.), 17 So. 441; Rutherford v. State, 196 Miss. 321, 17 So.2d 803.
II. Instruction No. 3 given to the State in this case was erroneous because it assumes as proven a material controverted fact. Marble v. State, 195 Miss. 386, 15 So.2d 693.
III. This instruction was also erroneous because it charges the jury that an inference of guilt may be drawn from flight by the accused. Wright v. State, 209 Miss. 795, 48 So.2d 509; Hubbard v. State, 202 Miss. 229, 30 So.2d 901; Tatum v. State, 142 Miss. 110, 107 So. 418; Vol. I, Alexander's Miss. Jury Instructions, Sec. 149 p. 72.
IV. Instruction No. 7 granted to the State was erroneous. It is identical with Instruction No. 3 and repeats and emphasizes the errors committed in granting Instruction No. 3. Marble v. State, supra.
V. Instructions Nos. 2, 4, 5 and 6 granted to the State were erroneous because they assume as proven material controverted facts. Marble v. State, supra.
VI. It was error for the Trial Court to refuse Instruction No. 9 requested by the defendant charging the jury that if they believed from the evidence that there was a probability that the defendant was innocent, then they should find him not guilty. Brown v. State, 219 Miss. 748, 70 So.2d 23.
VII. The Trial Court refused Instruction No. 10 requested by the defendant, found on Record Page 98. We have been unable to find any authorities holding the Court in error for refusing this type instruction in a case of this kind.
VIII. The evidence in this case wholly fails to establish that the accused knew that the property had been stolen at the time he received same and, therefore, the motion for a peremptory instruction of not guilty requested by the accused at the close of all the testimony should have been sustained. Rodgers v. State, 222 Miss. 23, 75 So.2d 42.
IX. The verdict of the jury was against the overwhelming weight of the testimony, and the motion for a new trial filed by the accused on that ground should have been sustained. Brown v. State, supra; Jolly v. State (Miss.), 174 So. 244; Justice v. State, 170 Miss. 96, 154 So. 265.
X. The only evidence in this case which would remotely tend to create an inference that the defendant should have suspected the tires involved in this case were stolen when he received them would be that of the State witness, Bobbie Gene Hoskins. The said Hoskins occupied the status of an accomplice of the defendant. Hoskins' testimony on this point is uncorroborated, unreasonable, improbable, self-contradictory and thoroughly impeached; therefore, a conviction on such testimony cannot be sustained. Cole v. State, 217 Miss. 779, 65 So.2d 263; Rutledge v. State, 171 Miss. 211, 157 So. 907; White v. State, 14 Miss. 815, 112 So. 27.
Crawley Brooks, Kosciusko, for appellant.
I. The Trial Court committed reversible error in overruling the demurrer of the defendant. Rutherford v. State, 196 Miss. 321, 17 So.2d 803; Sec. 26, Constitution 1890; 52 C.J.S., Secs. 76-77 pp. 868, 870-71.
II. The Lower Court committed error in granting the State every instruction requested. Shedd v. State, 203 Miss. 544, 33 So.2d 816-819; Howard v. State, 182 Miss. 27, 181 So. 526; Marble v. State, 195 Miss. 386, 15 So.2d 693; Fore v. State, 75 Miss. 727, 23 So. 710; Tatum v. State, 142 Miss. 110, 107 So. 418-19; Wright v. State, 209 Miss. 795, 48 So.2d 509-11; Frank (a slave) v. State, 39 Miss. 705; 53 Am. Jur., Secs. 452, 573 p. 451.
III. The Lower Court erred in overruling the motion of the defendant for a directed verdict at the close of the testimony for the State and at the close of all the testimony.
IV. The Court erred in overruling the motion of the appellant for a new trial on the ground that the verdict of the jury was contrary to the overwhelming weight of the testimony offered in said cause. White v. State, 146 Miss. 815, 112 So. 27; Rutledge v. State, 171 Miss. 311, 157 So. 908; Hunter v. State, 137 Miss. 276, 102 So. 282; Abele v. State, 138 Miss. 772, 103 So. 370; Cole v. State, 217 Miss. 779, 65 So.2d 262; Jolly v. State (Miss.), 174 So. 244; Sims v. State, 32 So.2d 791; Jefferson v. State (Miss.), 52 So.2d 927; Dickerson v. State (Miss.), 54 So.2d 925; Rodgers v. State, 222 Miss. 23, 75 So.2d 42.
J.R. Griffin, Asst. Atty. Gen., Jackson, for appellee.
I. The Trial Court committed no reversible error in overruling the demurrer filed to the indictment. Rutherford v. State, 196 Miss. 321, 17 So.2d 803; Daniels v. State, 212 Miss. 223, 64 So.2d 272; Gant v. State, 219 Miss. 805, 70 So.2d 26; Jackson v. State, 173 Miss. 776, 163 So.2d 381; Dueitt v. State, 225 Miss. 254, 83 So.2d 91; Hill v. State, 226 Miss. 445, 84 So.2d 679.
II. The Trial Court committed no error in granting Instruction No. 3 for the State, which is as follows: "The Court instructs the jury for the State of Mississippi that unexplained flight is a circumstance from which inference of guilt may be drawn and considered along with all the other facts and circumstances connected with the case." Shedd v. State, 203 Miss. 545, 33 So.2d 816; Howard v. State, 182 Miss. 27, 181 So. 525; Tatum v. State, 142 Miss. 110, 10 So.2d 418; Wright v. State, 209 Miss. 795, 48 So.2d 509.
III. The Trial Court committed no error in granting Instruction No. 7 for the State. This instruction is identical, except for the inclusion of the word "along", to the instruction complained of in Proposition No. 2.
IV. The Trial Court committed no error in granting Instruction No. 2 for the State, which is as follows: "The Court instructs the jury for the State that if they believe from the evidence beyond a reasonable doubt that the defendant, Clyde Eubanks, did unlawfully and feloniously buy or obtain two Goodyear automobile tires of the value of $25 or more in money, the personal property of the D.L. Fair Lumber Company, a corporation, which prior thereto recently had been feloniously stolen, taken and carried away, the said Clyde Eubanks well knowing the said automobile tires to have been recently stolen and carried away as aforesaid at the time he willfully, unlawfully and feloniously bought or obtained said automobile tires, then it is your sworn duty to return a verdict of guilty and the form of your verdict may be: `We the jury find the defendant guilty as charged in the indictment.'" Golding v. State, 144 Miss. 298, 109 So. 731; Marble v. State, 195 Miss. 386, 15 So.2d 693.
V. The Trial Court committed no error in refusing Instruction No. 9 requested by defendant, which is as follows: "The Court instructs the jury for the defendant that if you believe from the evidence in this case that there is a possibility that the defendant is innocent then you should find him not guilty." Brown v. State, 219 Miss. 748, 70 So.2d 23.
VI. The Trial Court committed no error in refusing Instruction No. 10 requested by the defendant. This instruction would have limited the weight that the jury should give to the testimony of the witness, Bobby Gene Hoskins. The weight of the witness's testimony is for the jury and not for the Court.
VII. The Trial Court committed no error in refusing to grant a peremptory instruction of not guilty which was requested by the defendant at the conclusion of all the testimony in the case. Crowell v. State, 195 Miss. 427, 15 So.2d 508; Aultman v. State, 126 Miss. 625, 89 So. 265; Yielding v. United States, 173 F.2d 46.
Appellant Clyde Eubanks was convicted of receiving stolen property of the value of less than $25.00. Mississippi Code 1942, Sections 2249, 2538. We have considered carefully the testimony, and it was sufficient as against a peremptory. However, the case will have to be reversed and remanded for a new trial because of some erroneous instructions granted the State.
The State was granted the following instruction: "The court instructs the jury for the State of Mississippi that unexplained flight is a circumstance from which an inference of guilt may be drawn and considered with all the other facts and circumstances connected with the case."
(Hn 1) The facts did not warrant the giving of this instruction. Appellant gave an entirely plausible and uncontradicted explanation of the reason why he was absent from the county for five weeks. The sheriff's testimony to the effect that he could not locate appellant does not negative the uncontradicted status of appellant's testimony in this respect. (Hn 2) Instructions on flight, if given at all, should be used only in cases wherein that circumstance has considerable probative value. Moreover, such an instruction is primarily argumentative. 1 Alexander, Mississippi Jury Instructions (1953), Sec. 2341. (Hn 3) However even if the facts here had warranted an instruction on flight, this one is erroneous. It is practically a peremptory statement to the jury that appellant fled and that the jury could consider this with other facts in making an inference of guilt. It should have been qualified so as to be related to the facts of this case, and also to tell the jury it must first find the facts before it can use flight along with other circumstances to support an inference of guilt. 1 Alexander, Ibid., Sec. 2342.
(Hn 4) The State also obtained the following instruction which erroneously assumed as true the principal facts in issue: "The court instructs the jury for the State that if they believe from the evidence beyond a reasonable doubt that the defendant, Clyde Eubanks, did unlawfully and feloniously buy or obtain two Goodyear automobile tires of the value of $25.00 or more in money, the personal property of the D.L. Fair Lumber Company, a corporation, which prior thereto recently had been feloniously stolen, taken and carried away, the said Clyde Eubanks well knowing the said automobile tires to have been recently stolen and carried away as aforesaid at the time he wilfully, unlawfully and feloniously bought or obtained said automobile tires then it is your sworn duty to return a verdict of guilty and the form of your verdict may be:
"`We, the jury, find the defendant guilty as charged in the indictment.'"
Similarly faulty instructions were also granted the State on pages 84, 85, and 86 of the record. It will be noted that the quoted instruction assumes as proved three facts vital to the charge against appellant: That two automobile tires had been stolen, that appellant knew them to have been stolen, and that he wilfully, unlawfully and feloniously bought the tires. (Hn 5) Of course an instruction which assumes as true a material fact, the truth of which is for the determination of the jury, is erroneous. We do not think that the clause, "if they believe from the evidence beyond a reasonable doubt", at the beginning of this instruction, can be said to qualify all of the succeeding statements, either grammatically or in common sense. Marble v. State, 195 Miss. 386, 15 So.2d 693 (1943) is in point.
Reversed and remanded.
McGehee, C.J., and Lee, Arrington and Gillespie, JJ., concur.