Summary
holding that, under pre-1974 statute, sentence of life imprisonment was within sentencing court's discretion when jury failed to fix penalty at death
Summary of this case from Glover v. HargettOpinion
No. 36527.
June 2, 1947. Suggestion of Error Overruled September 22, 1947.
1. CRIMINAL LAW.
In prosecution for armed robbery, where witness who identified defendant at the trial was permitted to testify without objection as to earlier identification of defendant out of court, defendant could not successfully complain on appeal of admission of evidence of earlier identification (Code 1942, sec. 2367).
2. CRIMINAL LAW.
In prosecution for armed robbery, where witnesses identified defendant at the trial and no objections were interposed to evidence that before the trial certain other persons were exhibited as suspects but were not identified by witnesses as the guilty parties, defendant could not successfully complain on appeal of the admission of such evidence (Code 1942, sec. 2367).
3. CRIMINAL LAW.
Instruction that evidence of good character is positive and substantial evidence and may, by itself, be of such a degree as to arouse a reasonable doubt and justify an acquittal was properly refused as being an instruction on the weight of the evidence.
4. CRIMINAL LAW. Robbery.
Where jury failed to fix penalty, upon convicting defendant of armed robbery, a sentence of life imprisonment imposed by the court, as authorized by statute, was within the trial court's discretion and not reviewable (Code 1942, sec. 2367).
APPEAL from the circuit court of Washington county. HON. S.F. DAVIS, Judge.
J. Robertshaw, of Greenville, for appellant.
The trial court erred in admitting evidence of extra-judicial identifications and refusals to make identifications by the prosecuting witness to bolster his identification of the appellant in open court.
Anderson v. State, 171 Miss. 41, 156 So. 645; Annotation, 70 A.L.R. 910 et seq.
The Court should review the appropriateness of the sentence imposed in this case, where it appears that the trial court failed to exercise the discretion vested in it by the legislature.
Harris v. State, 142 Miss. 342, 107 So. 372; Code of 1942, Sec. 2367.
The trial court erred in refusing instruction No. 5, requested for the appellant.
Calloway v. State, 155 Miss. 706, 125 So. 109.
As a matter of practical justice, considering only the competent evidence in this case, the possibility of error in the prosecuting witness' identification is real and great enough to warrant this Court's ordering a new trial in the interest of certainty.
Greek L. Rice, Attorney General, by George H. Ethridge, Assistant Attorney General, for appellee.
Ordinarily when a witness is asked to identify the assailant, or there are other persons who are subjects of his testimony, the witness's act of pointing out then and there the accused (or other person) is of little testimonial force. After all that has intervened, it would seldom happen that the witness would not have come to believe in the person's identity. The failure to recognize would tell for the accused; but the affirmative recognition might mean little against him. To corroborate the witness, therefore, it is entirely proper to prove that at a former time, when the suggestions of others could not have intervened to creat a fancied recognition in the witness' mind, he recognized and declared the present accused to be the person. We are not unmindful of the number and character of the courts of the states which take a contrary view, nor of the reasons they give for the exclusion of this evidence. Giving due heed to these, we can but think that their adherence to a technical rule deprives the courts of their jurisdictions of the benefit of a class of evidence which has strong testimonial value when weighed in the scales of the common sense of mankind.
Wigmore on Evidence, p. 912.
Appellant contends that the Court should review the appropriateness of the sentence imposed in this case, where it appears that the trial court failed to exercise properly the discretion vested in it by the legislature. From the statement of facts it appears that the jury rendered the verdict of guilty as charged without naming any penalty and especially without imposing the death penalty. Under Section 2367 of the Code of 1942, the jury alone has the right to impose the death penalty; and the statute does not name any conditions or limitations or provisions for the infliction of the penalty at any definite fixed amount of punishment. Where the jury has rendered a general verdict of guilty as charged, the discretion is then left to the circuit judge as to the amount of punishment to be inflicted, the only limitation being that it shall not be less than three years. No rule is fixed as to the discretions vested in the trial judge as guide to this Court for reversing his holding there as to right or wrong; it is a discretion left to the circuit judge who is familiar with the testimony, the witnesses, and law.
Harris v. State, 142 Miss. 342, 107 So. 372.
Appellant contends that the trial court erred in refusing instruction No. 5 requested by the appellant. This instruction is clearly a comment on the weight of the evidence, which the judge is prohibited by statute from making and it also violates the rule that the judge should not single out particular parts of the evidence and comment on it.
Eddie Flegg was jointly indicted with another for the armed robbery of Howard Bracey. Section 2367, Code 1942. A severance was granted appellant, who was thereupon convicted by a jury of the Circuit Court of Washington County, which, however, failed to fix the penalty. The presiding judge sentenced appellant to imprisonment for life in the State Penitentiary.
A third alleged participant in the robbery had died between its perpetration and the date of the trial.
It is not necessary for us to set out the facts of the case any further than necessitated by the following specific points thereon raised by appellant here. The first alleged error argued is that, in spite of its condemnation by Anderson et al. v. State, 171 Miss. 41, 156 So. 645, the court below admitted evidence of identification of appellant by the victim as one of three participants in the robbery, which had been made by him prior to the trial. This took place at the jail. Bracey also identified appellant Flegg at the trial, as the one who held a pistol on him, while another of the trio had him by an arm, and the third member did the actual robbing. The rule in the Anderson case, supra, is not available to appellant in the case at bar for the reason that evidence of the earlier identification of appellant out of court was admitted without objection.
This is demonstrated by these pertinent questions to, and answers by, the victim, while on the witness stand:
"Q. Where did you next see him after that night? A. In the jail.
"Q. For what purpose did you go to the jail? A. They delivered a call for me to come up there.
"Q. Were you confronted with this defendant? A. Yes, sir.
"Q. Did you identify him as being the person who held that pistol on you? A. Yes, sir.
"Q. Do you now identify him as being the same person who put that pistol on you? A. Yes, sir."
Likewise, appellant failed to interpose any objection to the State's evidence that also before the trial certain other negroes were exhibited by the officers to Bracey, as suspects but whom he refused to identify as the guilty parties. So, he cannot successfully complain of such assigned error on appeal, if error it be. Nor, as stated, can we sustain his assignment of error grounded on the identification of the appellant at the jail, for the reason already set out above.
The appellant introduced proof of his good general reputation for peace or violence in his community, and, based thereon, asked an instruction containing the following fatally erroneous clause: "and when it is shown to your satisfaction that the defendant was of good general reputation in the community in which he lived for peace or violence, that kind of testimony, if properly made out to you, is positive and substantial evidence, and may, by itself, be of such a degree as to arouse a reasonable doubt in your minds, and justify an acquittal." The vice of this instruction is that it is on the weight of the evidence, and hence, was properly refused. Wesley v. State, 37 Miss. 327, 75 Am. Dec. 62; Calloway et al. v. State, 155 Miss. 706, 125 So. 109; Harris v. State, 175 Miss. 1, 166 So. 392.
Finally, we come to the last assignment of error which we deem to be of enough importance to merit decision. We are urged to review the appropriateness of the life sentence imposed in this case since "the trial court failed to exercise the discretion vested in him by the Legislature." The statute provides that "in cases where the jury fails to fix the penalty at death, the court shall fix the penalty at imprisonment in the penitentiary for any term not less than three years." Here, it was life imprisonment, imposed by the court, since, as stated, the jury failed to fix the penalty at death. Appellant argues that "in the light of the facts of this case, it is manifest that no discretion could have been exercised and result in the sentence." Here, the court was called upon to determine the length of the imprisonment of the convicted defendant, requiring the application of experience, wisdom and judgment to the problem. The act of determination thereof was an exercise of discretion. It involved a conclusion deliberately reached, from all of the circumstances and elements properly required to be considered by the court. In Harris v. State, 142 Miss. 342, 107 So. 372, we held that a sentence of ten years in the penitentiary, imposed on conviction of assault with intent to kill and murder, being authorized by statute, it within the trial court's discretion and not reviewable. Here, the statute involved very carefully fixed the minimum imprisonment at not less than three years in the penitentiary, which authorized the trial court to impose a sentence of life imprisonment, in his discretion. It is, therefore, not reviewable by us, on the assignment of error relating thereto, which we overrule.
The judgment of the trial court is affirmed.
Affirmed.