Opinion
February 14, 1949.
1. Robbery — accessory before the fact — evidence sufficient.
Where the evidence shows that the accused was the "protector" of a gambling house and that the operators thereof were held up and robbed at the point of a pistol while on their way home late at night, and that prior to the robbery the accused had planned it and carried the robber to his home and furnished him with the pistol used in the robbery and had carried the robber to the gambling house and pointed out to him the car that the operators would be using when they left at closing time and assured the robber that none of the victims would be armed, a conviction of the accused as an accessory before the fact was sustained although accused as a matter of appearance was along with and among those robbed.
2. Criminal procedure — charge to grand jury — when not prejudicial to accused.
Remarks by the circuit judge in his charge to the grand jury that "there has been a series of outbreaks in your community recently . . . and want you to bring in these indictments by noon today . . . and we will thereby eliminate delays", the remarks making no reference to any particular crime or classes of crime, were not prejudicial to the accused indicted for robbery committed not recently but nearly seven months before.
3. Criminal procedure — conviction as an accessory under indictment as a principal.
Under Sec. 1995, Code 1942, an accused, indicted as a principal, may be convicted as an accessory before the fact.
4. Trial — instructions granted during or after the argument.
There is no error in the granting of proper instructions either during or after the argument unless the instructions are granted secretly, and when from the record the court cannot say that any instruction was so granted there will be no reversal on account of the time when given.
Headnotes as approved by Hall, J.
APPEAL from the circuit court of Adams County; R.E. BENNETT, J.
Berger Callon, Walter D. Coleman, for appellant.
A reading of the record will show that there was no evidence against this appellant other than the testimony of the alleged accomplice Swetman. Neither the State of Mississippi nor any one else can say whether or not the Grand Jury would have brought this indictment if they had not been coerced and ordered to do so by the circuit judge. It will be noted that the judge in his charge did not request that the Grand Jury investigate crime in Adams County and to deliberate and use their judgment in bring in any indictments as a result, but told the Grand Jury: "There has been a series of outbreaks of crime in your community recently. I am going to therefore only make a short charge, and want you to bring me these indictments by noon today . . . . and we will thereby eliminate these delays." The trial judge allowed the Grand Jury no discretion. They were actually ordered to bring this indictment and may have well felt that they would have been in contempt of this court if they had failed to comply with his Honor's charge. See Blau v. State, 82 Miss. 514, 34 So. 153; Fuller v. State, 85 Miss. 199, 37 So. 749; Johnson v. State, 106 Miss. 598, 64 So. 261; Green v. State, 97 Miss. 834, 53 So. 415.
That the proof failed to correspond with the indictment in that the indictment charges appellant with pointing and aiming a pistol at Guercio and Sturgis and of actually and physically participating in the hold up whereas the proof showed, if anything, a mere conspiracy, and the indictment does not charge a conspiracy between the appellant and anyone.
The indictment charges that appellant actually held a pistol on Guercio and Sturgis and charges that he, appellant, put said parties in fear of immediate danger to their person by personally pointing a pistol at them.
The proof shows that appellant was himself actually robbed and the State's entire case as presented by the evidence was that he planned on engineering the job. The authorities are numerous that the proof must correspond with the indictment and that material variance between the proof and the indictment is fatal and a motion to exclude should have been sustained.
In Talley v. State, 174 Miss. 349, 164 So. 771, the Mississippi Supreme Court held that a person indicted on one offense could not be convicted on another offense. In Dees v. State, 151 Miss. 46, 69 So. 173, the court again held that a defendant could not be convicted of a crime for which he was not charged. In Martin v. State, 197 Miss. 96, 19 So.2d 488, the court held that a conspiracy to commit a crime is a complete offense separate and distinct from, and does not become merged in, the commission of the crime contemplated by the conspiracy. Of similar effect is King v. State, 123 Miss. 532, 86 So. 399.
Appellant filed motion for a new trial and set forth among other things the giving of two instructions by the court without defense attorneys' knowledge, and in support of their position the defense attorneys called Mr. Clifford R. Field, circuit clerk of Adams County, who testified that two of the instructions were filed first and two were filed later.
Mr. G. Stewart Handy, county prosecuting attorney, testified that two of these three instructions were not filed at the time that the district attorney began his opening argument, that to his knowledge they were never shown to the defense attorneys. The defense attorneys, Mr. Coleman and Mr. Berger, had already testified positively that they knew nothing of these extra other instructions which were given after the state's attorney's argument and knew nothing about them until after the trial was over. The district attorney, himself, testified that instructions No. 2 and 3 were filed while he was making his opening argument.
The district attorney never claimed to have handed these instructions to the defense counsel but claimed to have made a remark in presence of one of the defense attorneys, Mr. Coleman, that he had some more instructions coming up which would be filed later. The district attorney did not know whether his remarks were heard or not and all the defense attorneys swore they did not hear these remarks and had no knowledge of any additional instructions and according to the testimony of the circuit clerk these instructions were not filed by him until after the district attorney concluded his opening argument and the district attorney was followed in his opening argument by defense attorney, Fred C. Berger, who was in turn followed by attorney Coleman.
In Montgomery v. State, 85 Miss. 330, 37 So. 835, the identical question was presented and the court reversed a conviction saying: "The record history of this instruction shows that it was had of the court by counsel for the state during the argument for the defendant, whose counsel were in entire ignorance of it, and that it was for the first time produced by the counsel for the state in his closing argument to the jury, telling them that he had gotten the instruction from the court to answer the argument of counsel for the defense, who immediately objected and excepted to this practice, the court remaining silent. It is true that the state's attorney then said, "Counsel may answer the instruction now." This proceeding was not good practice, and not cured by the remark of the state's attorney, action on which might have required the re-shaping of the whole argument. This is the proper practice, though, in a case where the charge was clearly right, and not so adroitly prepared as to possibly mislead the jury, we would not reverse for the deviation from it. But we would reverse for this alone in the case before us. We write in full view of Wood v. State, 64 Miss. 775, 2 So. 247, and do not modify or overrule that case. We are not sufficiently informed to the exact situation in that case to do either. We feel sure, however, that the correct practice, under our system, is for the court to pass on all instructions asked on both sides before the argument to the jury begins. This rule should not be deviated from except on rare and emergent occasions in the discretion of the court, and even then with opportunity to the other side to prepare and request any counter charge applicable to its view of the facts; otherwise great injustice might occur to the defendant in favor of the party with the closing argument. Underholds and blows beneath the belt should never characterize trials, especially trials involving life or liberty. A court should so deport itself as that no juror or bystander can surmise its view of the facts."
George H. Ethridge, Assistant Attorney General, for appellee.
I do not deem it necessary to set out all the testimony or the questions complained of as being leading questions. The testimony of the preceding witness is lengthy, was believed by the jury, and was sustained by the other witnesses for the state.
The state rested on this evidence and defendant made a motion to exclude the evidence and direct the verdict for the defendant; therein setting out the reasons for such motion. This motion was overruled and the defendant rested.
A motion was filed for a new trial. This motion involves the transaction of the giving of instructions in the case and the question of whether all the instructions given for the state were given before the defendant began his argument. I do not deem it necessary to go into this for it was the business of the parties interested in the instructions to read them if they desired to do so and to comment on them in their arguments. It is not shown that attorneys for the defendant went to the clerk who was custodian of the instructions and asked to see or read the instructions or to make any inquiry or reference to them. The clerk is the legal custodian of the instructions until they are delivered to the jury on their retirement. The statement made by counsel for appellant about the instructions is immaterial, I think. It further appears that the district attorney, in his opening argument, did not read to the jury the instructions for the state and did not comment on them and nothing appears which would tend to show that the attorneys for the defense were in any way prejudiced by the instructions not being read either before or during their argument.
The evidence in the case is overwhelming and undisputed as to the guilt of the appellant, who, according to the record, planned the robbery of his employers and secured the weapon with which the robbery was committed and gave the actual robber the weapon and was at the scene of the crime and also gave the robber the assurance that the parties to be robbed would have no weapon and that there would be no danger from them. Apparently the attorneys for the appellant entertain the idea that as Goss did not do the actual robbing that he could not be convicted. They seemingly overlook or ignore Section 1995, Code of 1942, which provides that every person who shall be an accessory to any felony before the fact shall be deemed and considered a principal and shall be indicted and punished as such and this whether the principal has been previously convicted or not. This section, of course, has the effect of making an accessory before the fact guilty of the same crime as though he had personally done the actual robbing. The law of the state is that a person may be convicted on the testimony of an accomplice alone if his testimony is reasonable but in the present case the testimony of the accomplice is abundantly corroborated and no complaint can be made on the insufficiently of the evidence.
The statements made by the trial judge in charging the grand jury did not refer to the defendant personally not to his crime nor to what crimes had recently been committed nor just how many had been committed.
Appellant was indicted for the crime of robbery and upon such indictment was convicted as an accessory and sentenced to a term of fifteen years in the penitentiary. From that conviction he has appealed to this Court.
Appellant contends that he was entitled to a directed verdict. We have very carefully read the entire record, and, in our opinion, (Hn 1) the evidence was unquestionably sufficient to go to the jury and to sustain the conviction. It shows, without dispute, that the appellant was employed as a "protector" by the operators of a gambling house about three miles North of the City of Natchez; that these operators were held up and robbed by one Swetman, at the point of a pistol, of approximately $8500 and some jewelry after the place had been closed for the night and while they were en route to their homes in Natchez; that appellant was with them at the time of the robbery and was himself relieved of his wallet; that while relieving the others of their cash and jewelry Swetman held his pistol on them, but when he finished with those and started to "frisk" appellant he put the pistol in his pocket; that prior to the robbery the appellant planned the same, carried Swetman to his home and furnished him with the pistol used in the holdup, then carried him to the gambling house and pointed out to him the car in which they would be riding when they left the place at closing time, and assured Swetman that none of them would be armed. The robbery occurred at about 1 A.M. on December 20, 1947.
Upon the convening of the Court on July 6, 1948, the Circuit Judge charged the jury as follows: "Gentlemen, it is hot and I did not intend calling the Grand Jury at this time, but there has been a series of outbreaks of crime in your community recently. I am going to therefore make only a short charge and want you to bring me these indictments by noon today. The District Attorney informs me that there will be some delays and we will thereby eliminate these delays." The appellant immediately moved to quash the Grand Jury and dismiss the panel, which motion was overruled. When the indictment was returned against appellant, he promptly moved the Court to quash the same, which motion was overruled, and these actions are assigned as error. In his argument of these assignments appellant contends that the Circuit Judge should have specifically charged the Grand Jury upon the law against the operation of gambling bucket shops and the unlawful sale of intoxicating liquors, upon those laws relating to gambling with minors and the giving or selling of tobacco and liquors to minors, and that his failure to do so was prejudicial to appellant. The ultimate result of this complaint is that the Grand Jury should have indicted the victims of the robbery for operating a gambling house, with the implication not shown by the record that they were also selling intoxicating liquor, gambling with minors, and selling or giving tobacco and liquor to minors. The record here is silent as to whether these victims were or were not indicted.
The appellant cites several authorities dealing with prejudicial remarks made by the trial judge to or in the presence and hearing of the petit jury, but those authorities are clearly not in point because the complaint here is not against anything that the trial judge said but against what he left unsaid. Appellant also cites two cases dealing with prejudicial remarks made by the trial judge to the Grand Jury but for the same reason these are not in point, nor are they in anywise authority for appellant's contention here.
One of the cited cases is Blau v. State, 82 Miss. 514, 34 So. 153. In that case the Grand Jury had been in session for over two weeks, had examined scores of witnesses, had returned numerous indictments, and finally came in with its final report. The Circuit Judge refused to accept the final report, had the Grand Jury seated, and proceeded with a further charge to them solely upon the law with reference to dealing in cotton futures, expressed disappointment that they had not done their duty by indicting the parties so engaged, practically ordered them to find indictments, and sent them back to the jury room for further deliberation, as a result of which the Grand Jury then brought in an indictment against Blau. This Court held in that case that it will not undertake to control the discretion of the presiding judge in directing the attention of the Grand Jury to particular offenses, but that under these facts the discretion had been abused to the prejudice of the defendant.
The other authority cited by appellant is Fuller v. State, 85 Miss. 199, 37 So. 749, wherein the Circuit Judge not only charged the Grand Jury with reference to the unlawful sale of intoxicating liquor, but even called the name of Charlie Fuller and asked the Grand Jury if they had ever heard of him. This Court held that it was an abuse of discretion for the presiding judge to call specific names to the attention of the Grand Jury.
(Hn 2) We are of the opinion that in the case at bar there was nothing prejudicial in the charge of the Circuit Judge. It cannot be implied that his reference to the recent crime wave in the community directed any undue attention to the particular single crime here in evidence, for it was committed nearly seven months prior thereto. Our holding, therefore, is that the appellant was not prejudiced by this charge. In so holding we are not to be understood as approving this type of charge to a Grand Jury. In this instance the Circuit Judge wholly disregarded the mandatory provisions of Section 1781 of the Mississippi Code of 1942, whereby he is required by law to specifically charge the Grand Jury on numerous criminal laws of the state, and his action is not to be commended, but, even so, the appellant was not thereby prejudiced.
(Hn 3) Appellant also complains that he was indicted as a principal but convicted upon evidence showing him to be only an accessory before the fact. A sufficient answer to this contention is found in Section 1995 of the Mississippi Code of 1942, which provides "Every person who shall be an accessory to any felony, before the fact, shall be deemed and considered a principal, and shall be indicted and punished as such; and this whether the principal have been previously convicted or not."
The only other assignment of error which we deem necessary to mention in this opinion is that the trial court erred in granting two instructions to the state after the argument of the case had commenced. No complaint is made against the contents of the instructions; the only complaint is that they should not have been given after the district attorney had commenced his opening argument. The record shows, without dispute, that the district attorney, at the conclusion of the evidence handed two instructions to the trial judge, which were granted, and stated that two others had been dictated and would be presented as soon as the stenographer completed typing them. The district attorney thought that counsel for the defense heard and understood this, as they were present in the courtroom. The defendant's attorneys testified that they did not hear the remark and did not know that more instructions were to be presented; in fact they did not know until the next day that the instructions had been granted. The trial judge, in order to conserve time, requested that the argument proceed, and no objection was made thereto. While the district attorney was making the opening argument the two instructions were brought to the courtroom and handed to the county attorney who handed them up to the judge. The judge read the instructions, marked them "Given" and they were handed to the circuit clerk and filed by him. All this occurred before the conclusion of the district attorney's opening argument. These two instructions were never read to the jury, and the record is silent as to whether the jury had them during their deliberation. Appellant relies on Montgomery v. State, 85 Miss. 330, 37 So. 835, 836. In that case an instruction was granted to the state, without the knowledge of defendant's counsel, at a time when he was making his argument to the jury on behalf of the defendant. The trial court did not interrupt the argument to advise defense counsel of the giving of this additional instruction, and its granting was not made known to defendant's counsel until the prosecuting attorney read it to the jury in the closing argument and told the jury that he had gotten it from the court to answer the argument of counsel for the defense. This Court held that the instruction was erroneous and further held that: "The court may grant instructions at any time before the jury retires, but not secretly. Other counsel interested should know of it, even though they have to be stopped in argument. This is the proper practice, though, in a case where the charge was clearly right, and not so adroitly prepared as to possibly mislead the jury, we would not reverse for a deviation from it."
In Wood v. State, 64 Miss. 761, 775, 2 So. 247, 249, this Court said, "We find no fault with the action of the court in giving additional instructions for the state after the argument had proceeded." And in Clarke v. Pierce, 82 Miss. 462, 34 So. 4, it was held that if a jury, after retiring to consider of their verdict, requests additional instructions, either party may thereupon present to the Court proper additional written instructions and ask that they be given, and it will be error to refuse them on the ground that they were too late.
(Hn 4) The rule, therefore, is that there is no error in the granting of proper instructions, either during or after the close of the argument of a case, unless the instructions were granted secretly. In the case at bar we are unable to say that the instructions were granted secretly The district attorney and the court apparently acted in good faith, there was no effort to slip behind the back of defense counsel in the granting of the instructions, the instructions state correct principles of law applicable to the case, they were not read to the jury or commented upon by the prosecution, and there is no showing here that they were ever in the hands of the jury. Under the facts here, the rule in the Montgomery case has no application.
Since we find no prejudicial error in the record, the judgment of the lower court is affirmed.
Affirmed.