Summary
In McBroom v. State, 217 Miss. 338, 64 So.2d 144 (1953), the defendant was convicted of grand larceny and the trial judge had given an instruction conceptually identical to the instruction in the case at bar.
Summary of this case from Weaver v. StateOpinion
No. 38679.
April 20, 1953.
1. Criminal law — larceny — aiding and abetting — instructions, reversibly erroneous when without the support of any evidence.
In a prosecution for grand larceny an instruction which told the jury that "any person aiding, abetting, counseling or procuring of a felony is guilty as a principal," while correct as a principle of law, was reversibly erroneous when there was no evidence to support it.
2. Criminal law — aiding and abetting — alibi.
Had the instruction above mentioned been proper the defendant would not have been entitled to an instruction on an alibi since his presence was not necessary to an aiding, abetting, counseling or procuring the commission of a felony, but with the abetting instruction left out, the defendant would have been entitled to an alibi instruction if there was any substantial evidence to support it.
Headnotes as approved by Arrington, J.
APPEAL from the circuit court of Hinds County; M.M. McGOWAN, Judge.
James H. Adams and Jno. W. Prewitt, for appellant.
I. Where there was no evidence that appellant aided, abetted, counseled or procured the commission of a felony, it was error for the trial court to give the following instruction: "The court instructs the jury for the State that any person aiding, abetting, counseling or procuring the commission of a felony is guilty as a principal."
There was no testimony either direct or otherwise in this case to warrant the court granting an instruction that G.T. McBroom was an accessory before the fact, and certainly the jury was misled by such an instruction.
In the case of Craft v. State, (Miss.), 59 So.2d 343, this Court stated: "Instruction authorizing jury to convict a defendant as an accessory was prejudicial in absence of evidence that such defendant had aided and abetted codefendant in commission of larceny, and in absence of evidence that codefendant had committed larceny."
Probably the instruction could have been corrected if other instructions granted by the lower court had properly explained to the jury that it was necessary for the State to prove a moral certainty that G.T. McBroom was an accessory; however, the instruction, as granted, standing alone, was misleading and did not adequately present the law to the jury. See also Summerall v. State, 206 Miss. 878, 41 So.2d 51; Williams v. State, 128 Miss. 271, 90 So. 886.
II. The jury should be instructed on matters of law.
In the case at bar appellant, among other defenses, proved with certainty that it was impossible for him to have stolen the cow by reason of the fact that he was at another place other than where the alleged crime was committed, and this, under our jurisprudence, is termed the defense of alibi. McBroom's actions on July 23, 1951, and July 24, 1951, were related in detail and without objection by the prosecution; however, before the case was submitted to the jury, appellant asked for and was denied any instruction pertaining to alibi which, if proved, is a good defense under our laws. Cole v. State, (Miss.), 4 So. 577; Holliday v. State, (Miss.), 67 So. 181; Staten v. State, 30 Miss. 619, 1 Mor. St. Cas. 834.
J.T. Patterson, Assistant Attorney General, for appellee.
The appellant, G.T. McBroom, was indicted, tried, and convicted of grand larceny for the stealing of one "white faced muley headed cow branded `P' on the right hip," and sentenced to the penitentiary for a term of five years, from which judgment he appeals.
The evidence on the part of the state was sufficient to sustain the conviction and we would affirm this judgment but for the granting of the following instruction to the state, which is assigned and argued as error: "The court instructs the jury for the state that any person aiding, abetting, counseling, or procuring the commission of a felony is guilty as a principal."
(Hn 1) This instruction embodies a correct principle of law, but was improper, and not applicable to this case, for the reason that we find no evidence in this record to show that the appellant aided, abetted, or procured the larceny of the cow described in the indictment.
". . . An instruction not based on the evidence is erroneous in that it introduces before the jury facts not presented thereby, and is well calculated to induce them to suppose that such state of facts in the opinion of the court is possible under the evidence and may be considered by them." 53 Am. Jur., Trial, Sec. 579, p. 455.
We held, in the recent case of Craft v. State, 214 Miss. 752, 59 So.2d 343, that the granting of a similar instruction was erroneous and reversible error where it was not based upon any evidence. (Hn 2) The trial court also refused the appellant an instruction on an alibi, which was proper in view of the erroneous instruction given the state, as the appellant did not have to be present to be guilty. With this instruction left out, it follows that the defendant would be entitled to an instruction on an alibi. For the error in granting this instruction, the judgment of the court below is reversed and the cause remanded.
Reversed and remanded.
Roberds, P.J., and Hall, Lee, and Holmes, JJ., concur.