Opinion
No. 42109.
February 26, 1962.
1. Criminal law — accomplice — testimony of accomplice sufficient to sustain conviction.
Testimony of an accomplice which was not unreasonable, improbable, unbelievable or self-contradictory was alone sufficient to sustain a conviction.
2. Burglary — evidence — conviction sustained.
Evidence sustained conviction for burglary.
3. Criminal law — statements made by Court in explanation of its ruling not an abuse of discretion.
Statements made by the Court in explanation of its ruling were not an abuse of discretion.
Headnotes as approved by Jones, J.
APPEAL from the Circuit Court of Jasper County; HOMER CURRIE, J.
Laurel G. Weir, Philadelphia, for appellant.
I. While a conviction may be sustained on the uncorroborated testimony of an accomplice, it is equally well settled that such a conviction should not be upheld where such testimony is improbable, self-contradictory, and unreasonable on its face, and especially where it is impeached by un-impeached witnesses. Creed v. State, 179 Miss. 700, 176 So. 596; Pegram v. State, 228 Miss. 860, 89 So.2d 846.
II. Prior acts or declarations of the accomplice consistent with his testimony are not sufficient corroboration, and have even been held inadmissible, although there is authority to the contrary. Mattox v. State, 240 Miss. 544, 128 So.2d 368; 22 C.J.S., Criminal Law, Sec. 812 p. 1408.
III. The Court erred in sustaining each objection of the State to questions propounded by defendant and in overruling each objection made by defendant to questions asked by the State, and all as shown by the record.
IV. The trial judge's wrongful comments to the jury at the time of said objections so prejudiced the defendants' rights that it prejudiced the jury and caused them to return a verdict of guilty, all is shown by the record.
G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. The lower court did not err in refusing appellants' motion for a directed verdict and the verdict of the jury and the sentence of the Court is not contrary to the weight of the evidence and the law. Clanton v. State (Miss.), 49 So.2d 267; Cobb v. State, 235 Miss. 57, 108 So.2d 719; Ivey v. State, 206 Miss. 734, 40 So.2d 609; Scott v. State, 185 Miss. 454, 188 So. 546; Spiers v. State, 231 Miss. 307, 94 So.2d 803.
II. The Court did not err in permitting the State to prove by their own witness, Bennie C. Cochran, that he had previously confessed and in permitting other evidence similar to this in order to bolster his testimony. Anderson v. Evans (Neb.), 96 N.W.2d 44; Butler v. Parrocha (Va.), 43 S.E.2d 1; Keefer v. Byers (Pa.), 59 A. 474; Miller v. Piqua Transfer Storage Co. (Ohio), 92 N.E.2d 452; Paige v. Missouri (Mo.), 323 S.W.2d 753; People v. Bias (Cal.), 339 P.2d 204; People v. Garcia (N.Y.), 184 N.Y.S.2d 679; State v. Mares (Utah), 192 P.2d 861; State v. Wolfe (Wash.), 245 P.2d 1009; Woods v. State, 181 Miss. 321, 179 So. 559; 22 C.J.S., Sec. 812.
III. The trial court did not err with respect to its comments and in the Court's action in overruling and sustaining of objections. Austin's Estate v. General Motors Acceptance Corp., 239 Miss. 699, 125 So.2d 79; Berger v. United States, 225 U.S. 43, 65 L.Ed. 489, 41 S.Ct. 230; Bumpus v. State, 166 Miss. 276, 144 So. 897; Clark v. State, 209 Miss. 586, 48 So.2d 127; Cobb v. State (Ala.), 125 So.2d 522; Lee v. State, 214 Miss. 742, 59 So.2d 338; Price v. State, 207 Miss. 111, 41 So.2d 37; Thomas v. Cook, 229 Miss. 563, 91 So.2d 275; Welch v. Morgan, 225 Miss. 154, 82 So.2d 820.
The appellants were indicted, tried, convicted of burglary, and sentenced to seven years each in the State penitentiary in and by the Circuit Court of Jasper County, Mississippi. On appeal they alleged that the evidence was insufficient, particularly in view of the fact that the chief witness for the State was an accomplice.
(Hn 1) It is true that the main prosecuting witness was an accomplice, but his evidence was not unreasonable, improbable, unbelievable, or self-contradictory, (Hn 2) and under our decisions it was sufficient alone to sustain the conviction. However, there were certain facts introduced and proven which tended to corroborate his testimony.
The appellants also assign as error the overruling of their objection to a statement by the State's witness that he had confessed to his part in the crime. This certainly could not be error because while the witness was on the stand he was then confessing his part in it.
Later on, it was sought to prove that he in his confession made out of court and not in the presence of appellants involved them in the crime. Objection to this evidence was sustained; what the witness had said was excluded, and the court instructed the jury to disregard same.
(Hn 3) Objection is also made to some of the statements made by the court. These statements were in explanation of the court's ruling and were not an abuse of his discretion, and not sufficient to cause a reversal.
Affirmed.
Lee, P.J., and Arrington, McElroy and Rodgers, JJ., concur.