Summary
In Ivey v. State, 206 Miss. 734, 40 So.2d 609 (1949), this Court pointed out that the trial court should have sustained an objection to a legal instruction verbally given by the district attorney to the jury.
Summary of this case from Edge v. StateOpinion
May 23, 1949.
1. Criminal procedure — function of the jury — verdict not set aside, unless.
It is the function of the jury, and especially so in criminal cases, to pass upon the weight and worth of the evidence and the credibility and veracity of the witnesses, and a verdict of guilty will not be set aside unless it is clear that such verdict is the result of prejudice, bias or fraud or is manifestly against the weight of the credible evidence.
2. Criminal procedure — jury — accepting part of testimony, rejecting other parts.
The jurors may accept the testimony of some witnesses and reject that of others; may accept in part and reject in part testimony of any witness, or may believe part of the evidence on behalf of the state and part of that for the accused.
3. Criminal procedure — robbery with a pistol — weight of evidence.
In a prosecution for robbery with a pistol, where the state's case rests mainly upon the testimony of the victim, but the entire case is surrounded by a multitude of facts and circumstances, the weight of the evidence and the credibility of the witness were peculiarly questions for the jury, and the jurors were in a better position to pass upon the disputed issues than the appellate court.
4. Criminal procedure — trial — objectionable testimony, but not prejudicial.
When in order to impeach a witness he is asked, not whether he has been convicted of crime, but whether his place had been raided eighteen times for violations of the liquor laws and he replied that he had been raided more often than that and that he was selling liquor there, no reversal will be ordered for the technical error.
5. Trial — incompetent testimony — when not reversible.
It is only when a defendant has been materially prejudiced, or deprived of some substantial right that cases should be reversed for wrongful admission of testimony, and especially so when the objections are directed to testimony so interlaced with competent evidence that the trial judge could not well separate the competent from the incompetent.
6. Trial — improper argument, when not reversible error.
It is presumed that jurors make allowances for overstatements and claims in the arguments of attorneys in the enthusiasm for their clients in the heat of contest and it is only when it is clear that such transgressions have occurred and when they have deprived parties of some substantial right and it is evident that they have suffered material prejudice and have not had a fair trial that such transgressions should work a reversal of cases.
7. Trial — arguments by counsel.
Lawyers have a right and it is their duty to deduce and argue reasonable conclusions based upon the evidence, which are favorable to their clients, and they may do so whether the conclusions so urged are weak or strong so long as legitimate and at last it is the function of the jury to determine the logic and weight of a conclusion.
Headnotes as approved by Roberds, J.
APPEAL from the circuit court of Hinds County, H.B. GILLESPIE, J.
Sandy R. King and Calvin R. King, for appellant.
The appellant, as well as everyone who was observing the appellant, including Ledbetter, agreed that appellant emphatically denied the robbery.
In addition to the foregoing it was established both by the testimony of James McBride, and the admissions of Ledbetter as made to his cell mate Conn in the county jail that he got appellant's license plate number when he, Ledbetter, was at McBride's place in Durant at about 4 o'clock in the morning, on the morning in question. Ledbetter produced not one witness or person who ever saw him around Bolton, Edwards or Vicksburg on the occasion in question; his testimony is not corroborated except for that part at Kosciusko showing a compromise on Mr. Ivey's part to avoid fear and embarrassment because he was out drunk with a woman the night before, which fact he was trying to keep from his family and friends. Ledbetter saw him drunk at McBride's place and sought to take advantage of him because he was an officer, as to remarks Ledbetter made about Ivey being drunk, this was an out right blackmail and extortion by Ledbetter, and it seems highly probable that such a person would resort to such desperate agencies when realizing that he must account to his gangster bosses for whisky and money entrusted to his care and keeping, and realizing that he might be in danger of losing his life. Ledbetter had to get a "goat" and he selected this timid country constable, the appellant.
As against Ledbetter's contention that this man was at Bolton around 5:30 A.M., we have the testimony of credible and unimpeached witnesses that appellant was at home in the bed at 5 o'clock A.M., on Sunday the 27th day of June, and at the time Ledbetter alleged that he was robbed by him, as follows: Mrs. Ivey, John Ed Ivey, Jr., and of course, the testimony of the appellant. We also have the testimony of James McBride, and we respectfully submit that the State's efforts to impeach this witness was hard and energetic and the only headway made was to show that the witnesses used in an attempt to impeach him were biased and prejudiced against him because he sells whisky, and of all the 40,000 people in Holmes County, the Sheriff could only name six persons, five of them being from his own family and employees and the other who stated with the sheriff that he would not believe the witness under oath; the other was Mr. McNeer, who stated that he had not heard anyone in Holmes County say they would not believe McBride under oath except Mr. Wynn.
It will be noted too, that a good bit of the impeaching testimony against McBride concerned alleged crimes for which McBride was never convicted.
We respectfully call the attention of the court to the fact that no witness was ever put upon the stand by the State in refutation or rebuttal to deny the statements in detail made by McBride, many of whose material statements went unchallenged and Ledbetter was available to the State; the same is true as to the testimony of Conn.
The presumption is that the witness to refute such facts, available to the State, and presumed to be friendly with it, and not being called by the State, could not refute such facts, as was held in, Robinson v. Hydel, 177 Miss. 233, 171 So. 7.
We find that the appellant, according to the record, bears an excellent reputation for truth and veracity as well as being a law abiding citizen by and amongst his neighbors and fellow citizens, as follows: Deputy Sheriff, Roy Braswell; Mr. Zackery, a fellow officer; Hon. Alton Massey, former member of the State Senate and Mayor of Kosciusko; Hon. Stokes Sanders, former Mayor of Kosciusko, a State Senator and publisher of the Kosciusko Star Herald, voluntarily came all the way down to Raymond to say that Mr. Ivey bore a good reputation for truth and veracity and for being a good law abiding citizen; that he had known him for 15 or 20 years; the appellant has never been convicted of a crime.
As against the testimony of a convict like Ledbetter, we are constrained to feel that it should profit a man and serve him in good stead in times such as this, that he has earned a good name. Our court has held that the mere fact of a good strong, clean reputation in the past may serve to weigh the testimony in his favor, one such case being, Lewis v. State, 93 Miss. 697, 47 So. 467, wherein this court held that, "Good character in itself may create a reasonable doubt." And again this court held in the case of Jennings v. State, 118 Miss. 619, 79 So. 814, that, "The law casts no suspicion on the evidence of the defendant."
The appellant's evidence was in corroboration of the testimony of James McBride, that his car license tag number was taken down by the witness Ledbetter, at McBride's place, near Durant, rather than at place of the alleged robbery. This situation is amply corroborated by the fact that Ledbetter made no inquiries anywhere near the scene of the alleged robbery. Even though McBride was impeached for truth and veracity, his testimony will be sustained and considered where corroborated. It was held by the court in the case of Blackwell v. State, 161 Miss. 487, 135 So. 192, that where an impeached witness's testimony was corroborated the jury could not ignore it.
If the evidence of the payment of the $360.00 by the appellant to Ledbetter is to be considered in weighing this evidence, due to the fact that it went into the record unchallenged, nevertheless, we sincerely urge that this compromise payment was secured by threats and duress, upon the part of Ledbetter and others as aforesaid.
This court has held time and time again, as it held in the case of Miller v. State, 198 Miss. 277, 22 So.2d 164, that, "Accused is presumed to be innocent and his guilt must be shown by evidence beyond every reasonable doubt." Also it was held by this court in, Moore v. State, 20 So.2d 96, as follows: "Verdict finding the defendant guilty must not be palpably contrary to the great weight of the evidence."
We feel that this record fully discloses that Mr. Ivey could not account for himself, by explanation in the presence of his fellow officers, because of the very embarrassing fact that he had spent the night with a woman other than his wife, and had been drunk. This too would have been extremely embarrassing under the circumstances of his being an officer; the pressure and the threats in addition thereto, as aforesaid, was enough to have caused any normal man, whether an officer or not, to have yielded on the spur of the moment and to have made a compromise in order that he might get the entire matter hushed, so that he would not be required to make further explanation and have his wife learn of his infidelity. A criminal prosecution turned upon this contention in the following case of Sanders v. State, 192 Miss. 416, 6 So.2d 125.
We respectfully submit and urge with deference to this court, that under this evidence the jury could not have been without a reasonable doubt of the guilt of the appellant.
The State's case being based entirely on the testimony of one witness, Ledbetter, and this said witness's testimony being so unreasonable as to invite disbelief on the part of a reasonable man or men, and his said testimony having been met and overwhelmed by the weight of the evidence offered in behalf of the appellant, and this said witness being soundly impeached by his criminal record and the contradictions in his testimony, all as is set out in point one of this brief, we submit with deference to the court that the lower court erred in overruling the appellant's request for a peremptory instruction.
The court erred in admitting on behalf of the State, over the objections of the appellant, certain evidence, prejudicial to the appellant.
On the cross-examination of James McBride, the court permitted the State to offer incompetent impeaching testimony against this defense witness, contrary to law and which was highly prejudicial to the appellant.
The authorities and decisions of this State are in unanimous accord on the principle of law stated here, that a witness may not be questioned in regard to any charges, arrests, indictments, nor anything less than a conviction, while attempting to impeach his veracity or the credibility of his testimony. It is quite evident from the record that the court here allowed the State, over the objections of the appellant, to improperly question the defense witness in regard to mere charges or "raids" which actually were of no consequence, but which naturally had a great effect on the jury's opinion of the testimony given by said witness.
The court permitted hearsay testimony concerning statements made by one Solon Black, an absent witness, and permitted the showing of an attempted compromise.
Here again the authorities on the laws of evidence and the decisions of this court are in unanimous accord on the principle that hearsay evidence is inadmissible; also the same is true of the principle of law that the failure of a party to present a witness who can be had, and who is presumed to be friendly, raises a presumption that such facts do not exist. These principles of law were upheld by the decisions of this court in the cases of Citizens Bank of Coldwater v. Callicott, 178 Miss. 747, 174 So. 78; Melius v. Houston, 41 Miss. 59, Robinson v. Haydel, 177 Miss. 233, 171 So. 7.
We again emphatically urge the court that the testimony given by this witness, J.H. Sims, over the objections of the appellant, in regard to what a third person, Solon Black, had said with reference to the appellant's attempt to compromise a criminal prosecution or charge, was improper and inadmissible, and that the lower court erred in overruling the appellant's said objections.
The court permitted the District Attorney to bring into the record prejudicial evidence, connecting the appellant with extraneous and immaterial prejudicial matter concerning certain men not connected with this case, named Powell, without any foundation whatever.
And again on the cross-examination of the appellant the court permitted the District Attorney to do the same thing, over the objection of the appellant.
The court upon being requested to instruct the jury to disregard excluded prejudicial evidence, acted thereon by language too ambiguous to be understood by the jury.
The court erred in overruling the appellant's objections to that part of the argument of the District Attorney, whereby the District Attorney sought to orally instruct the jury on a question of law.
With emphasis we submit to this court that it was gross error on the part of the lower court to permit the District Attorney to orally instruct the jury on a question of law on his closing argument to the jury and over the objections of the appellant.
The court erred in overruling the appellant's objection to the argument of the District Attorney with reference to the Powell's alleged ownership of an automobile which the prosecuting witness stated that he pursued after the alleged robbery.
The District Attorney in his closing argument to the jury stated, as follows: "I say in this case that this car (meaning as he stated before the 1948 Town and Country automobile which Ledbetter gave chase to in Durant when he passed through said town after having been allegedly robbed by the defendant) belongs to one of the Powell brothers."
We here wish to call the court's attention to the previous attempts of the District Attorney to connect the appellant up with the Powell brothers — with no degree of success whatsoever in his said attempts to do so, but at all times being done over the objections of the appellant.
We are certain that the court can appreciate our being touchy about any attempt of the State to implicate the appellate with the Powell brothers, as it was a matter of common knowledge to the general public, the citizens of the Town of Raymond and the court that one of the Powell brothers, "Blackjack" or M.M. Powell was at the time of the trial of the appellant under an indictment in the same court for "Hi-jacking" whisky; that Mr. Powell's case had been given a large amount of publicity in the newspapers of the State and that Mr. Powell was believed by many to be a gangster.
Certainly the District Attorney's emphatic statement to the jury, uncorroborated by evidence or proof of any kind whatsoever, was highly and seriously prejudicial to the appellant, and it was error on the part of the lower court in overruling the appellant's objection thereto.
This court held in the case of Bufkin v. State, 134 Miss. 116, 98 So. 455, with no reservation that, "It is error for counsel in argument to jury to state facts, or what purports to be facts which have not been proved." And again in the case of Roney v. State, 153 Miss. 290, 120 So. 445, this court held that, "Broad latitude allowed counsel in argument does not extend to statement of facts not in evidence and prejudicial to defense."
John M. Kuykendall, Jr., for appellee.
After a careful study of the record in this case it would be difficult to say that either Ledbetter or the defendant had told all that they knew about this matter. The mystery of what became of the hijacked liquor apparently still remains unsolved. But the defendant was not indicted and convicted of highjacking whiskey. He was indicted and convicted of robbing $360.00 in lawful money from the person of Ledbetter. The defendant does not deny that a robbery did take place in Hinds County as alleged and, indeed, the defendant even admits that upon being identified by Ledbetter in the presence of the police officers in Kosciusko shortly after the robbery he did voluntarily give to Ledbetter $360.00. The defendant's explanation of this action is that he was afraid of Ledbetter's gang but it must be remembered that at the time the defendant gave to Ledbetter the $360.00 it was in the presence of a large number of the peace officers of the City of Kosciusko and Ledbetter was alone. It was not until the following day, Monday, that Ledbetter returned with the two Kilgore brothers according to the testimony of the defendant's witnesses. Fear of Ledbetter's gang may have contributed to the defendant's flight on Monday to Arkansas but it is difficult to see how Ledbetter could have instilled such fear into him on Sunday during the eight minute period the two were alone in the back room at the City Hall. On the contrary, Ledbetter's refusal to ride out to the defendant's house to get the money indicated that Ledbetter himself was the person in fear.
Without relying on the testimony of the witness Ledbetter at all, there still remains the uncontradicted testimony of the peace officers from the City of Kosciusko establishing the complaint of the robbery, the identification of the defendant as the robber, the defendant's action in paying to the accusing victim the sum claimed to have been robbed all followed by the subsequent flight of the victim from the State on the following day.
The fact that the defendant was of good character and had never before been convicted of a crime was simply another matter to be considered by the jury regarding the weight and value of all the evidence. On the other hand the defendant's alibi that at the time the crime is alleged to have occurred he was out drinking a pint of whiskey which he had taken on a raid as a deputy sheriff and in the company of a woman can hardly be said to be the action of a man with good character. "In arriving at their verdict the jury are not confined to a consideration of the palpable facts in evidence, but may draw reasonable inferences and make reasonable deductions therefrom." Woodward v. State, 180 Miss. 571, 178 So. 469.
Appellant's main contention in this appeal is that the testimony of the witness Ledbetter cannot be relied upon. At the same time appellant claims it was error for the trial court to admit certain testimony by the peace officers corroborating the accusation of the accused by the witness Ledbetter. Both policemen Miller and Sims testified that when Ivey returned from his home with the money they saw Ivey pay the money over to Ledbetter. They also testified that a Justice of the Peace, Mr. Solon Black, was also present and saw the money paid over and that it was a question from Mr. Black which prompted the statement by Ledbetter accusing Ivey as the man who had taken his money. The record contains no statements by Mr. Black which could be said to be prejudicial or ground for reversal of this case. Mr. Black simply asked a question and it was the answer of the witness Ledbetter identifying the defendant which is actually complained of here.
The action of the defendant Ivey in paying the money to Ledbetter after his accusation was, in fact, an admission of his guilt. Even though Ivey at that time verbally denied the accusation, his actions in paying the money strongly contradicted his verbal statement. Actions speak louder than words. See Belote v. State, 36 Miss. 96; Garrard v. State, 50 Miss. 147; Wilkinson v State, 77 Miss. 705.
All of the circumstances tending to establish an admission must be considered together. Here the victim Ledbetter had first identified the defendant Ivey in the presence of several police officers in the City Hall of Kosciusko, as the person who had robbed him. Without then making any kind of denial or explanation to the police officers, the accused retired with the victim to a private room and immediately thereafter came out of the room and had a police officer drive him to his home where he procured the sum claimed to have been robbed and returned to the City Hall and under circumstances strongly indicating his guilty conscience paid the exact amount claimed to have been robbed to the victim. It is true that the accused claimed that in the private room he denied that it was actually he who had taken the money from the witness but his subsequent actions strongly contradicted that denial. Certainly the verbal remarks of the accused cannot be said to be an unequivocal denial of the acquisition in toto.
Appellant complains of the cross-examination by the District Attorney of the defense witnesses relative to the chase of the Chrysler automobile and the attempt by the District Attorney to identify the owner of that Chrysler automobile. As stated in the brief of counsel for appellant, this matter was first brought out by the counsel for the defendant in the cross-examination of the State's witnesses and, of course, the District Attorney in cross-examining the defense witnesses had great latitude in such cross-examinations. See Buckley v. State, 130 Miss. 492, 94 So. 456.
We offer the same answer to the contention that the District Attorney in cross-examining defense witness McBride went too far, which we offered above. This was simply cross-examination on a matter which the defense counsel had injected into the case and the appellant cites no authorities in support of this contention.
By two special bills of exceptions the appellant complains of the District Attorney commenting on law which the appellant claims was not embodied in the instructions and also the argument of the District Attorney regarding the chase of the Chrysler automobile. From the brief accounts set forth in the bills of exceptions, it would be difficult to have an appellate court say that the comments by the District Attorney were serious error. Throughout the trial there was considerable evidence concerning the whiskey involved in the highjacking and also the chase of the automobile which had been injected in the trial by the defense counsel. Since defense counsel questioned all the witnesses in the trial at considerable length on these points, it can well be assumed that in the argument on behalf of defense these matters were dwelt on at length.
"It is not, however, every argument that is improper that will cause a reversal of a case. Before this court will reverse the ruling of the trial court, it must appear that the argument was well calculated to influence the verdict of the jury, and the court was in default in exercising its duty of superintending the trial so as to prevent injustice to any litigant whose rights are involved in such trial." Matthews v. State, 148 Miss. 696, 114 So. 816.
Appellant was convicted of the robbery of one Ledbetter by exhibition of a pistol and sentenced to the state penitentiary for twelve years.
On this appeal he urges (1) that the trial court should have granted to him a peremptory instruction, or, if not, should have awarded a new trial, because the verdict of the jury was against the great weight of the evidence; (2) that certain evidence was incompetent and was wrongfully admitted before the jury, and (3) the district attorney, in his argument to the jury, used language not justified and which was prejudicial to him.
The first two contentions we consider together. They require a summary of the evidence. Ledbetter lived at Anniston, Alabama. He was associated with, or in the employ of one Kilgore, who was then engaged, on a large scale, in the illegal sale of whisky in Alabama, but who was out of business at the time of the trial. Ledbetter had been sentenced to the Alabama Penitentiary for violation of its whisky laws, but was then on probation. Kilgore gave to Ledbetter money with which to purchase whisky. On Saturday, June 26, 1948, Ledbetter made a trip to Louisiana. That day he purchased forty cases of whisky at a place called Yellowhammer or Sonheimer, Louisiana, from a man whose name he could not remember. The whisky was loaded into the Ledbetter automobile about midnight. Ledbetter then proceeded towards Vicksburg, Mississippi, but, being weary, departed from the highway into nearby woods and slept for awhile in his car. He then drove on through Vicksburg into Mississippi on highway 80. Shortly after he had passed the town of Bolton, Mississippi, in Hinds County, and about an hour after sunup, Ivey and another party, driving fast and sounding a siren on their car, overtook and crowded him to the side of the road and commanded that he "pull over". He did that. Ledbetter thought they were officers. Ivey had a pistol in his hand; got into the automobile of Ledbetter, and, at the point of the pistol, made him drive from the road into the woods, the other party driving the Ivey car. At this time and place, Ivey, by exhibition of the pistol, made Ledbetter help transfer the whisky from the Ledbetter to the Ivey automobile, and robbed Ledbetter of $360.00 in cash. In the meantime, however, while the whisky was being transferred, Ledbetter had succeeded in getting the tag number of, and impressing on his mind the model, make, and color of the Ivey automobile. He remembered it was a 1946 Chevrolet, its color, and that it had a windshield wiper on the rear window, seemingly not a usual equipment for automobiles. Ivey and his companion drove away. Ledbetter proceeded a few miles towards Jackson, Mississippi, stopped and got some breakfast.
This, it appeared, was an opportune time and occasion for meditation upon recent events and contemplation as to future action. He decided to go to Durant, Mississippi, by way of Vicksburg and Yazoo City. It appears later in his evidence that the reason that thought came to him was he had heard that some three weeks previously the same automobile in which he was riding but being driven by another person, had been "hijacked" near Durant, and that his experience that morning might have some connection with that fact. The foregoing facts are based upon Ledbetter's testimony. Witness Sims, city marshall of Kosciusko, Mississippi, also testified he received information of the former hijacking incident. When Ledbetter got to Durant, armed with the car tag number, he asked Markus Rogers, a taxi driver, where he could find "the law." Ledbetter contacted a policeman at Durant, told him he had been robbed, showed him the tag number, and the policeman told him the county in which he thought that number had been issued. Ledbetter started from Durant toward Kosciusko, some twenty miles east. As he left Durant, he met another man driving a Chrysler Town and Country automobile with panelled sides. He recognized the driver of the Chrysler car as the man from whom he had bought the whisky in Louisiana. He immediately reversed his course and began to chase the Chrysler in an effort to overtake it and interview the driver. However, the driver, apparently being well aware of Ledbetter's efforts and intentions, "stepped on the gas" and a race occurred between the two automobiles, until the driver of the Chrysler, seemingly familiar with the surrounding terrain, proceeded to drive onto a gravel road outside Durant, thereby blinding Ledbetter with dirt and dust, which put an end to the chase. Rogers, the taxi driver, of whom Ledbetter had inquired the whereabouts of the law, placed on the stand as a witness for the defendant, verified the foregoing facts. He described the Chrysler car, but did not see the driver thereof sufficiently well to identify him if he in fact knew him, but he did recognize Ledbetter as the man trying to catch the Chrysler. Ledbetter then proceeded to Kosciusko, the county seat of the county he understood had issued the car tag. He went to the city hall. That was about ten o'clock Sunday morning. There he consulted the city police, notifying them he had been robbed of the $360 and inquiring to whom had been issued the car tag number he had written down. He also described to them in detail the car used in the robbery. He gave the make, model, color, the fact it had a siren and a rear-view window wiper attached. Inquiry by the city police of the county tax assessor disclosed that the tag number had been issued to Ivey. In fact, some of the police said they knew Ivey's car had a siren and a rear-view wiper attached, these accessories being unusual. A city policeman proceeded to drive about town in an effort to locate this car. He found it standing in front of a barber shop. However, a son of Ivey's was driving it. The police then called Ivey to come to the city hall. This he did. When Ledbetter saw him, he immediately said that was the man who had robbed him. Ivey denied that. He said it might have been his car, but that he was not the guilty man. However, Ivey and Ledbetter proceeded to the rear, or another part, of the city hall, and in this private interview Ledbetter demanded that Ivey return his money. Ivey agreed to do that. However, he had to go to his home, which was located in the outskirts of Kosciusko, to get it. He told Ledbetter to get in the car, but Ledbetter refused to do that. A city policeman then drove Ivey to his home, where he got the money, returned to the city hall, and there, in the presence of Miller, a city policeman, Sims, city marshall, and Black, a justice of the peace, he counted out and delivered the money to Ledbetter. Miller and Zachery, city policemen and Sims city marshal, and Braswell, deputy sheriff, all testified, and substantiated the foregoing facts as having occurred in Kosciusko.
We might here state, before proceeding with events, that Ivey was a constable and a deputy sheriff.
Ledbetter also said that he asked Ivey about Kilgore's whisky, and that Ivey gave him to understand he would return that. Ivey said he did not so agree.
Ledbetter then left for Anniston. The next day he and Kilgore and Kilgore's brother showed up in Kosciusko. There was no secrecy connected with their presence in that city The police knew they were there. They went out to Ivey's home; had an interview with him, and Kilgore demanded Ivey deliver up the whisky or pay a certain sum for it. They testified that Ivey told them to return in about two hours. They waited three hours and returned, when they were informed by Mrs. Ivey that Ivey had gone to Arkansas. He did go to Arkansas and remained some three weeks. The return by Ledbetter and the Kilgores to Kosciusko was Monday, June 28, 1948. As to the events occurring at the Ivey home, the wife of defendant and John Ed Ivey, Jr., a son, also testified. The son said Ledbetter and the two Kilgores came to his father's home about two o'clock the afternoon of Monday, June 28, 1948. They told Ivey they wanted $3450 pay for the whisky and they would give him two hours within which to produce the money. The son said to them, "I thought he had paid for the whisky," but they said he had not paid for it; that they had a shotgun in the back of the automobile; that they left and came back around four o'clock and his father had gone to Arkansas; that his father had said to them "I will see about it for you." Mrs. Ivey testified she was not at home when the Kilgores and Ledbetter came to her home the first time; she was there the second visit; heard them say they would get the money or get Ivey. She also testified she was at home Sunday morning when Ivey came there and got the $360 he later paid to Ledbetter at the city hall.
This son also testified that on Saturday night his father drove him home from uptown; that they went to the ice-box for something to eat, and the cupboard was bare; that his father had left about eleven o'clock and said he was going to town to get a sandwich; that his father came back to the home about five o'clock the next morning and was "pretty well lit." He and his mother put him to bed.
Mrs. Ivey said substantially the same thing, adding that her husband, when he returned in the morning, was drunk.
Ivey testified. He admitted repaying the money, but said he did so because he was afraid. He said he did not commit the robbery. He endeavored to establish an alibi. He said after he left his home to go into Kosciusko and get a sandwich, that he went some three miles out of the city on highway 12 to a place known as the Chicken Shack. There he got his sandwich. He said there was a woman present desiring a ride to Vaiden, Mississippi, a distance of some thirty-eight miles; that he consented to transport her in his car; he and the lady proceeded toward Durant but before reaching that city they stopped at McBride's place, a short distance east of Durant; there they got sandwiches; defendant drank beer. He said he had been drinking whisky, says he and his woman companion left McBride's about 12:30 proceeded through Durant without stopping; then went north on U.S. Highway 51 to Riley's Tourist Court, a short distance south of Vaiden. Here he says he put the lady friend out, and, so far as the evidence discloses, she disappeared into the night. He drank some more beer at Riley's. He tried to get a cabin but there was no vacancy, so he slept in his car. He left Riley's before daylight, retraced his tracks through Durant to McBride's, where he had some more beer. From there he proceeded back to his home at Kosciusko, arriving there after daylight, practically in an intoxicated condition, according to his own testimony.
He says further that when he was in McBride's place Sunday morning, he observed the man who later that day saw him at the City Hall; that he did not know Ledbetter but when he saw him at the City Hall he recognized him as a person he had seen at McBride's.
Clark, the operator of the Chicken Shack, testified Ivey did come to his place that Saturday night; that he had a woman in his car, who wanted to go to Durant or Vaiden.
McBride testified he operated an eating and drinking place called "Woody's Drive In," on Highway 12 just east of Durant on the way to Kosciusko and that he had known Ledbetter some six months, and Ledbetter before the time here involved had tried to sell him some whisky; that Ledbetter came to his place about 2:30 Sunday morning and remained until about 4:30. Ledbetter told him he had been robbed and he had the car tag number of the man who robbed him; that Ivey came to his place at about 11:30 that Saturday night; he had a woman in his car; that Ivey drank some beer and left; that he returned about 4 o'clock on Sunday morning, and drank some more beer; that Ivey was about drunk; that Ledbetter told him he had been robbed across the Mississippi River from Vicksburg but later said it was "down the road." Witness admitted he had been convicted of selling whiskey. The sheriff of Holmes County and the mayor-elect of Durant, a former justice of the peace, testified that McBride's general reputation as a law-abiding citizen and for truth and veracity was bad. The state endeavored to show that McBride was connected with Powell Brothers, who it may be inferred from the record, were rather notorious as being engaged in the sale of intoxicating liquors in the vicinity of Durant. McBride testified that one of the Powell Brothers was the owner of a Chrysler Town and Country sedan. At the time of the trial McBride was working at and renting a place owned, as was expressed, by "Mrs. Blackjack Powell."
Defendant introduced a witness by name of Douglas Conn. He had been convicted of knowingly receiving stolen property and was then confined in jail at Jackson, Mississippi. He had also been convicted for failure to report for military service. Ledbetter had been brought to Jackson and placed in jail awaiting time to testify in this case, his parole having been revoked after the happenings of the events here disclosed. Conn said Ledbetter told him Ivey had robbed him but that he said it took place "up close to Durant," but he also said it occurred on Highway 80; that he, Ledbetter, went to Durant, saw Ivey in a cafe and there took down the tag number of Ivey's automobile. McBride had also said Ledbetter got the Ivey car tag number while they were at his place.
Kelley, a deputy sheriff, testified that Ledbetter carried him to the place on Highway 80 near Bolton where the robbery took place.
The mayor and a newspaper editor of Kosciusko testified Ivey's reputation was good — at least, it had been, according to their information, prior to the time of the events herein.
(Hn 1) Is this evidence sufficient to support the verdict of guilty? Under our judicial system it is the function of the jury, and especially so in criminal cases, to pass upon the weight and worth of the evidence and the credibility and veracity of the witnesses, and we cannot set aside a verdict of guilty unless it is clear such verdict is the result of prejudice, bias or fraud, or is manifestly against the weight of the credible evidence. Young v. State, 150 Miss. 787, 117 So. 119; Witt v. State, 159 Miss. 478, 132 So. 338; Evans v. State, 159 Miss. 561, 132 So. 563. (Hn 2) The jurors may accept the testimony of some witnesses and reject that of others; may accept in part and reject in part testimony of any witness, or may believe part of the evidence on behalf of the state and part of that for the accused. Woodward v. State, 180 Miss. 571, 177 So. 531, 178 So. 469.
There is no intimation of fraud or wrong-doing on the part of the jury in this case.
Nor is there any evidence of bias or prejudice against accused. Indeed, the circumstances, tested by normal human reactions, would reasonably lead to sympathy, or bias, in his favor.
The alleged victim and chief prosecuting witness was a non-resident of this state, unknown to any of the jurors so far as this record discloses, and was then under sentence for his crime. The defendant was, and had been for years, a resident citizen of this state, a man of family, a constable and a deputy sheriff. The jurors knew the effect a guilty verdict would have upon him personally and upon his family. Certainly there is nothing here to indicate the jurors were prejudiced against him.
(Hn 3) The weight of the evidence and the credibility of the witnesses were peculiarly questions for the jury under the circumstances of this case. The State's case rests mainly upon the testimony of Ledbetter. He gave a plausible reason for going to the vicinity of Durant after the robbery. Sims, the city marshal of Kosciusko, testified to the fact underlying that reason. Ledbetter was supported by a defense witness as to what he said happened at Durant. He was corroborated by city and county officials as to the events in Kosciusko. He went straight to the city officials and made his accusation against Ivey. When he saw Ivey he immediately accused him in the presence of these city officials. He was a stranger in Ivey's hometown. Ivey went to his home, procured the money and paid it to Ledbetter in the presence of his fellow-officials and friends. Instead of doing that, he could have had Ledbetter arrested. That would have been more in accord with innocence than paying over to Ledbetter the money which Ledbetter said had been taken from him by Ivey. Ledbetter and the two Kilgores came back to Kosciusko the next day. They did not act secretly. The officials knew they were there. They did not hide their presence or their purpose. Too, the alibi of defendant was not likely to appeal to the jurors. It is dubious both in point of fact and quality. The main witness, undertaking to support him, was certainly of doubtful veracity. We do not enlarge upon the reasons justifying the verdict. Summed up, it is easily understandable the jurors could have concluded that the entire alibi fabric was of rotten tissue. They heard the witnesses testify, saw their demeanor on the stand and had the records of the witnesses before them. They were in better position than is this Court to properly pass upon the veracity of the witnesses and give weight to their testimony.
Appellant made a number of objections to testimony which were overruled. We have carefully examined all of them. There were some errors but no reversible error. It would unduly lengthen this opinion to detail and discuss all of them. (Hn 4) We will mention one as illustrative, in effect, of the others. We have referred to the testimony given by witness McBride. He claims defendant stopped at his eating and drinking place twice Saturday night. The district attorney, on cross examination, asked him if the sheriff had not raided his place eighteen times. This was not competent. The manner of attacking a witness, other than by character witnesses, is to prove former conviction of crime. Section 1693, Code 1942. But the witness answered, "I imagine more than that." He was then asked, "Whom do you sell whisky for there?" and he replied, "For myself." Now, that was a confession he was violating the law, although not proof of a conviction. But we do not feel called upon to set aside a verdict and grant a new trial merely because the witness says he is violating the law when the proper method of attack is to show he has been convicted therefor.
Some of the objections are based upon questions of the state's attorney in response to information elicited from witnesses by counsel for appellant. (Hn 5) Some objections are directed to testimony so interlaced with competent evidence the trial judge could not unscramble the situation and separate the competent from the incompetent. A trial judge is in a difficult position in passing upon the competency of evidence. He must decide questions immediately. He has no opportunity to weigh and study and investigate the questions. If a critical spyglass examination should be made of every word of evidence few convictions would be affirmed. It is only when a defendant has been materially prejudiced, or deprived of some substantial right, that cases should be reversed for wrongful admission of testimony. We find no such result in this case.
Lastly, as to the argument of the district attorney, complaint is made thereof in two respects. He said, "Gentlemen, all the lawyers know and will tell you that whenever whisky is transported by automobile from the State of Louisiana through Mississippi to the State of Alabama, that it is interstate commerce and is therefore most probably legal property and not a violation of the laws of this state". The objection should have been sustained to this argument but the question is whether the failure to do so is reversible error. In this state it is the province of the trial judge to announce the law to the jury. The jurors know that. That was, of course, done in this case. In the next place appellant was not charged with taking whisky from Ledbetter. The charge was robbing him of $360 "good and lawful money of the United States of America." It will be noted, too, the district attorney did not make the positive assertion that the transportation of this whisky through Mississippi, under the circumstances, was not a violation of the law. He said it was "probably legal property and not a violation of the laws of this state." Presumably this jury consisted of twelve men of average intelligence. Such a juror knows the prosecuting attorney is endeavoring to convict, and counsel for defendant is endeavoring to acquit, the accused. (Hn 6) It may be assumed that jurors make allowance for overstatements and claims of attorneys in their enthusiasm for their clients and in the heat of contest. If we critically examined and analyzed everything said and done by attorneys during the trial of a hotly contested, long drawn out law suit, and reversed a case each time such sayings and actions transgressed strict rules, comparatively few convictions would be sustained. It is only when it is clear such transgressions have occurred and when they have deprived parties of some substantial right and it is evident that they have suffered material prejudice and have not had a fair trial, that such transgressions should work a reversal of cases. We cannot say that is the effect here, merely because the district attorney expressed it as his opinion, and what he thought was the opinion of other attorneys, that the transporting of this whisky through Mississippi to Alabama was "probably" not a violation of the laws of this state.
Again, the district attorney in his argument to the jury said, "I say in this case that this car (meaning as he stated before the 1948 Town and Country automobile which Ledbetter gave chase to in Durant when he passed through said town after having been allegedly robbed by the defendant) belongs to one of the Powell Brothers." Defendant objected to this and the objection was overruled.
This was a conclusion of the district attorney. (Hn 7) Lawyers have a right, and indeed it is a duty, to deduce and argue reasonable conclusions, based upon the evidence, which are favorable to their clients. Here Ledbetter had testified that the driver of the Chrysler Town and Country automobile whom he chased at Durant was the man who sold him the whisky. There was other evidence in the record that the Powell Brothers owned such a car. The conclusion that they did own the Town and Country car chased by Ledbetter may not have been very strong from the evidence, but it was a legitimate deduction. It was the function of the jury to determine the logic and weight of the conclusion.
Affirmed.