Opinion
No. 40358.
January 21, 1957.
1. Appeal — errors assigned but not argued — did not require appellate review.
Alleged errors assigned but not argued did not require appellate review.
2. Criminal law — particular offense must be charged and proved — previous convictions — accused's bad character or reputation — instructions.
An accused cannot be convicted of a crime simply because of his bad character or reputation, or because in the past he has been convicted of other crimes; the particular offense must be charged and proved.
3. Criminal law — admission of previous conviction on cross-examination — went only to defendant's credibility as a witness.
Where defendant on cross-examination admitted a conviction of possession of intoxicating liquor on the previous day, such evidence went only to his credibility as a witness. Sec. 1692, Code 1942
4. Criminal law — terms "character" and "reputation".
Although the terms "character" and "reputation" are often used interchangeably and as synonyms, there should probably be a distinction to the effect that character is what one is, whereas reputation is what one is thought to be.
5. Criminal law — instructions — refusal of instruction to effect that no person should be convicted upon his reputation, character or former convictions but must be convicted by evidence of crime charged — error.
Where defendant, on cross-examination, admitted he had been on the previous day convicted of possessing liquor, since such evidence went to defendant's credibility as a witness and the loss or impairment of credibility adversely affects both character and reputation, defendant was entitled to the refused instruction to the effect that no person should be convicted upon his reputation, character, or former convictions, but must be convicted by the evidence in the case, and the evidence must exclude any and every reasonable doubt, and to a moral certainty.
Headnotes as approved by Lee, J.
APPEAL from the Circuit Court of Wayne County; LUNSFORD CASEY, Judge.
W.C. Jones, A.G. Busby, Jr., Waynesboro, for appellant.
I. The Court erred in refusing the following instructions requested by the defendant, to-wit:
A. "The Court instructs the jury to find the defendant not guilty.
B. "The Court instructs the jury for the defendant: That if either from the evidence or the lack of evidence you have a reasonable doubt as to the defendant's guilt, it is your duty to promptly acquit him. And you are further instructed that if either the evidence or the want of evidence leaves your minds in that state where it wavers and where you cannot say that you are entirely satisfied from the evidence beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis than that of the defendant's guilt, that he is guilty as charged, it is your duty to acquit him.
C. "The Court instructs the jury that no person should be convicted upon his reputation, character, or former convictions, but must be convicted by the evidence in the case, and the evidence must exclude any and every reasonable doubt, and to a moral certainty."
Collation of authorities: McVay v. State (Miss.), 26 So. 947.
John H. Price, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. Errors assigned and not argued will be treated as abandoned. Childress v. State, 188 Miss. 573, 195 So. 583; Coleman v. State, 198 Miss. 519, 23 So.2d 404; McGee v. State (Miss.), 40 So.2d 160.
II. All of the instructions given the State and the defendant must be considered together. Taking into account all of the instructions given the State and the appellant in the instant case, the jury was sufficiently and properly instructed as to the law upon the facts presented.
III. Tersely stated, the State's case was built on the positive testimony of two witnesses who purchased whiskey from appellant and on the testimony of the Sheriff who hired the two undercover agents, the Sheriff testifying that he hired said two witnesses upon the recommendation of employees of the Alcohol Tax Unit and upon the additional recommendations of several other sheriffs.
IV. The appellant's case was an alibi. Appellant and others testified that he was not in or near Waynesboro at the time the undercover agents testified that he sold them whiskey.
V. The jury heard the testimony and had occasion to observe the witnesses as they testified. Therefore, they are the best judges as to the apparent truthfulness of the testimony of any witness. Apparently, they chose to believe the State's witnesses in preference to appellant's witnesses, and the record reveals that they were justified in so doing.
From a conviction for the sale of intoxicating liquor and a sentence of $250.00 and costs and 30 days in jail, James Hassell appealed.
James R. Cochran, Sheriff of Wayne County, employed two colored men, W.C. Jordan and George Johnson, to do undercover work in the county. These men testified that about 7 o'clock Sunday evening, March 18, 1956, they saw the defendant at Cooley's Cafe in the Town of Waynesboro and asked him where they could get a drink. He told them to follow him. He led the way in his car, and they followed in their automobile, all of the parties going past the defendant's home to a lumber stack. At this point, he got the half pint of liquor and delivered it to Jordan, who paid him $1.50. He told them at the time to be careful as the sheriff had just caught him the day before with a quart of liquor. The undercover men went immediately to the sheriff and delivered the liquor to him.
The defense was an alibi. The defendant testified that, on this particular Sunday, he attended church services near Butler, Alabama, from about 10 o'clock in the morning until 9 o'clock that night. Two other witnesses gave corroboration to his version. He also denied that he made the sale in question and denied that he had ever seen the State witnesses before the trial.
(Hn 1) On this appeal, three alleged errors are assigned. However, two of them are not argued, and of course they do not require review. Childress v. State, 188 Miss. 573, 195 So. 583; Coleman v. State, 198 Miss. 519, 23 So.2d 404.
The other assignment alleges reversible error in the refusal of the court to grant the following instruction: "The court instructs the jury that no person should be convicted upon his reputation, character, or former convictions, but must be convicted by the evidence in the case, and the evidence must exclude any and every reasonable doubt, and to a moral certainty."
The defendant, on cross examination, admitted that, on the 23rd day of March, 1956, he was convicted of possessing liquor on the Saturday before. This admission was corroborative of the testimony of the two undercover men that, at the time of the sale to them and in admonishing them to be careful, the defendant said that the sheriff had caught him with liquor the day before.
The instruction is a rescript of one which was refused in McVay v. State, (Miss.) 26 So. 947. See also Alexander's Mississippi Jury Instructions, Section 2223, page 517; Wingo's Mississippi Criminal Law and Procedure, Section 1651, page 440. Because of the refusal of that instruction and another, the conviction in that case was set aside, and the cause was remanded for a new trial.
The Attorney General concedes that, if the instruction had dealt only with former convictions and not with character and reputation, it would not have been erroneous; but that it was properly refused because no evidence was offered about the defendant's character or reputation.
(Hn 2) It must be borne in mind that an accused can not be convicted of crime simply because of his bad character or reputation, or because in the past he has been convicted of other crimes. The particular offense must be charged and proved. In the case here, the defendant was charged with selling liquor. (Hn 3) His conviction of possessing liquor the day before was not evidence of the sale in this case. It went only to his credibility as a witness. Section 1692, Code of 1942. But since the alleged sale, denied by the defendant, occurred the day after the possession for which he was convicted, there could have been a strong temptation to the jury to decide that the defendant was a prevaricator, and to reason that, if he had liquor on Saturday, he was likely selling it the next day.
(Hn 4) The loss or impairment of credibility adversely affects both character and reputation. If the jury, on account of the previous conviction, discounted the worth of the defendant's evidence, then undoubtedly he suffered a slump insofar as their estimate of his reputation was concerned, without reference to the status of his character. The terms "character" and "reputation" are often used interchangeably and as synonyms, although there should probably be a distinction to the effect that character is what one is, whereas reputation is what one is thought to be.
(Hn 5) The theory of the requested instruction was that the jury was required to believe from the evidence, beyond reasonable doubt, that the defendant made this particular sale of liquor, and that they were not warranted in convicting him for the sale merely because of his former conviction for possessing liquor and the probable attendant bad character and reputation arising therefrom.
The instruction ought to have been given. For the error in refusing it, the cause is reversed and remanded for a new trial.
Reversed and remanded.
Roberds, P.J., and Hall, Kyle and Holmes, JJ., concur.