Opinion
No. 36000.
December 10, 1945.
1. CRIMINAL LAW.
Before Supreme Court can pass on comparative weight of evidence, there must be a motion to set aside the verdict and for new trial on ground that verdict was against great weight of evidence, to give trial judge opportunity to pass on such question.
2. CRIMINAL LAW.
Where no motion was made to set aside the verdict and for new trial on ground that verdict was against great weight of evidence, to permit Supreme Court to consider weight of evidence there must be an entire absence of any evidence of guilt of appellant.
3. LARCENY.
Recent possession of stolen property creates presumption of guilt to be considered by jury in connection with reasonableness of explanation of such possession.
4. LARCENY.
In grand larceny prosecution, accused's guilt was for jury.
5. CRIMINAL LAW.
Where evidence pointed strongly to a person other than accused as one who actually took the money from victim, verdict finding accused guilty as "accessor to the crime" was too indefinite to support conviction of grand larceny (Code 1942, secs. 1518, 1544, 2249).
APPEAL from the circuit court of Scott county, HON. PERCY M. LEE, Judge.
W.I. Munn, of Newton, for appellant.
The appellant, Ruby McDougal, must be acquitted of the crime charged in the indictment, of the taking of $440 in cash money, of the property of Gertis Watt, because Gertis Watts testified that she did not get his money, instead he testified most positively that Exie Mae Battle Patterson took his money and immediately left and went home and never returned, so if this be true, and is true from the evidence, a conviction, if at all, must be based on the fact that the appellant, Ruby McDougal, was found in the possession of the two $20 bills, marked 66J and 66D, and the further fact that these bills were sufficiently identified as the property of Gertis Watts, and not the property of the appellant, Ruby McDougal. The appellant, Ruby McDougal, gives a fair and reasonable explanation of how she obtained the two $20 bills marked 66J and 66D. The State of Mississippi failed to identify the two $20 bills as being the personal property of Gertis Watts and the state's case must fail. The lower court should have sustained the motion for a directed verdict for the appellant and should have granted the peremptory instructions asked for by the appellant.
It is a rule of law that where a party is in the possession of personal property, that party is presumed to be the owner thereof.
The Attorney General in his brief raises the very serious question in this case as to the form of the verdict of the jury. This verdict of the jury does not say that the defendant was guilty as an accessory before the fact or after the fact. By this verdict of the jury it is evident that the jury did not believe from the evidence before them that the defendant, Ruby McDougal, was guilty of the crime as charged in the indictment, and there is no testimony in this record that shows or that tends to show or to prove that this appellant, Ruby McDougal, aided or abetted or conspired with the co-defendant, Exie Mae Battle Patterson, or anyone else as to steal $447 or any other amount of money from Gertis Watts as an accessory before the fact or before the commission of the crime, and it cannot be said that the jury so intended by their verdict to make her, the appellant, an accessory before the fact, because there is no evidence to support such a finding by the jury. If the appellant under the evidence is guilty at all, and we say she is not, it would be as an accessory after the fact, that is to say that she came into possession of some of the stolen money that belonged to Gertis Watts, after the money had been stolen, and that she knew it was stolen money and that she tried to cover up, and if this be true in this case, then appellee, the state, must fail, because it would be an accessory after the fact, and as cited by the Attorney General in his brief this Court would have to reverse the case.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
The appellant, Ruby McDougal, was jointly indicted with Exie Mae Battle Patterson on a charge of grand larceny at the March term 1945 of the circuit court of Scott County, the indictment being returned on March 6, 1945. A motion was made for a severance, which was granted by the court. The appellant was put to trial on said charge and the jury returned the following verdict: "We, the jury, find the defendant guilty as accessor to the crime." Counsel for appellant did not ask that this verdict be cleared up and neither did the district attorney. The court entered a judgment, reciting the said verdict, and sentenced appellant to serve a term of three years in the state penitentiary. The appellant was indicted as a principal and the indictment did not charge that she was an accessory either before or after the fact. I deem it my duty to call the attention of the court to the terms of the verdict. No question was raised in the court below with reference thereto, either in the instructions or in the motion for a new trial.
The main argument of appellant is that the court erred in not granting a peremptory instruction and that the evidence was insufficient to convict the appellant of the crime charged. It is the law that, if there is an entire absence of evidence to sustain the conviction, this Court may entertain this question on appeal. (See Cogsdell v. State, 183 Miss. 826, 185 So. 206.) But where there is evidence from which the jury might find the defendant guilty as charged, although the evidence supporting the state's charge does not appear to be the stronger (which, however, is not true in this case), the court would have no power to review the judgment of the court on the ground that the verdict is contrary to the great weight of the evidence or contrary to the evidence where there is any conflict.
There was no motion for a new trial in this case setting up that ground for review by the trial judge after the verdict. Without a motion setting forth that the verdict is contrary to the weight of the evidence or the preponderance of the evidence, such a question cannot be argued here.
Justice v. State, 170 Miss. 96, 154 So. 265; Dixon v. State, 188 Miss. 797, 196 So. 637; Davis v. State, 173 Miss. 783, 163 So. 391; Byrd v. State, 179 Miss. 336, 175 So. 190; McLendon v. State, 187 Miss. 247, 191 So. 821; Ephriam v. State (Miss.), 174 So. 815; Mississippi Digest, "Criminal Law," Key No. 1063 (4).
Taking the evidence contained in the record, it is clear that the jury were authorized to accept the testimony of Gertis Watts and Sheriff McCrory in which it plainly appears that the appellant had two bills identical with the bills which the witness, Gertis Watts, had stolen from him at the house of Lois Battle. The appellant was the sister of Lois Battle and was there at the time when Gertis Watts came to the Battle house and was there during the time he was there, and she was also there when Gertis left that night after losing his money; shortly thereafter she was found in possession of money identical with the money which was taken from Gertis Watts. The fact that she turned the money over to Odessa Barnes when she heard the sheriff was looking for her and the fact that she denied to the sheriff, when he first interrogated her about it, that she had such money, and the many other circumstances, tending to show that she was a party to the taking of the money from Gertis Watts even if she did not personally take the money from him. She was in possession of money which had been sufficiently marked for identification to show it was the same money which was taken from Watts and the jury had the right to find that she was a participant although she may not have personally taken the money from him while he was in a drunken condition. The fact that she denied on the witness stand that the witness, Gertis Watts, asked her about the money and the fact that her witnesses testified to the same effect, all tends to indicate strongly that she was connected with the larceny. It is true that the proof does not show just when she secured this money, which she had in her possession, whether it was on the night of the theft or the day following, but, when we consider all the circumstances together, as testified to by all the witnesses, it is quite probable that there was an understanding between Exie May Battle Patterson and the appellant. The evidence, it seems to me, would be sufficient to show that appellant was a participant in the larceny on the night it occurred.
The indictment did not mention anything about the appellant being an accessory before the fact or after the fact. The state had a right, under Section 1995 of the Code of 1942, to try an accessory before the fact as a principal both in the indictment and in proceedings throughout the trial, and punish him. The verdict of the jury might be assumed to find that she was an accessory before the fact of the crime. If the evidence had shown that she secured the money without any prior arrangement between Exie May Battle Patterson and herself but that she took part of the money knowing it to be stolen and turned it over to her sister to prevent any of it being recovered, she would be an accessory after the fact. It is settled in the law of this state that a person cannot be both a principal and guilty as accessory after the fact. This matter was discussed very fully by the Court in Crosby v. State, 179 Miss. 149, 175 So. 180, and it was also presented in Woods v. State, 190 Miss. 28, 198 So. 882, and it was also discussed to some extent in Washington v. State, 196 Miss. 293, 17 So.2d 203. It was held in Harrel v. State, 39 Miss. 702, 80 Am. Dec. 95, that a party could not be convicted when charged as a principal, by proof that he was an accessory after the fact. The two offenses are separate and distinct.
The question in this case is: "Can the court construe the verdict of the jury as a conviction of an accessory before the fact?" The instructions do not refer to this matter in any way. The matter seems not to have been noticed by any party or by the judge as needing explanation or clearing up by the jury. Had the question been raised when the verdict was rendered, no doubt the judge would have had the jury retire and reform their verdict, or he would have cleared it up by having the jury explain their intention. The general rule is that, to avail of error, it must be presented in the trial court so that court can deal with it in whatever manner the law authorizes or requires.
Appellant was indicted for grand larceny, in the stealing of $447 in lawful money of the United States, the property of Gertis Watts. The jury returned the verdict hereinafter set out, and the trial court imposed a sentence of three years in the state penitentiary, and defendant appealed.
Appellant contends that the money found to be in her possession the day after the larceny was not identified as being any part of the money stolen from Watts. The stolen money included four twenty dollar bills. One of these bills had stamped into it 66J and another 66D. In addition, Watts testified that he had turned down and creased back very sharply one corner of the first bill, leaving the appearance that the turned-down part of the bill had been cut off. The day after the larceny the previous night he told the sheriff he could identify these two bills and described them to the sheriff as above set out. That was before the money was recovered. Appellant had in her possession a total of $53. This included two twenty dollar bills of the foregoing description. There was evidence, however, that the numbers and letters on the bills were stamped thereon not for the purpose of identifying the bills but to identify the Federal Reserve Bank which issued them. But the fact remains that the two bills in the possession of appellant were of the exact description, including the creased-down corner, of two of those stolen from Watts. We think this evidence, with the other related facts as hereinafter set out, was sufficient to support the finding of the jury that these bills were identical.
It is next insisted that there is no evidence whatsoever in this record to show appellant guilty. The question is not as to the weight of the evidence. No motion was made to set aside the verdict and for a new trial on the ground that the verdict was against the great weight of the evidence, thereby giving the trial judge, who saw and heard the witnesses, an opportunity to pass on this question, as we have so often held to be necessary, before we can pass on the comparative weight of the evidence. Justice v. State, 170 Miss. 96, 154 So. 265; Dixon v. State, 188 Miss. 797, 196 So. 637; Davis v. State, 173 Miss. 783, 163 So. 391; Byrd v. State, 179 Miss. 336, 175 So. 190; McLendon v. State, 187 Miss. 247, 191 So. 821. Here, to permit us to consider and sustain the contention, there must be an entire absence of any evidence of guilt of appellant. Cogsdell v. State, 183 Miss. 826, 185 So. 206. On that question it is shown by the evidence that on the night of the larceny appellant was with Watts and that she had an opportunity to take the money from his person, which money he had in his shirt pocket. It is further shown that when she heard the next day the sheriff was trying to locate the guilty party that she delivered the said $53, including the two twenty dollar bills, to her sister, and when the sheriff, having learned she had done that, asked her about it she, according to his testimony, denied she had done so. Later she admitted she had done that and gave as an explanation of that act that she then had information the sheriff was looking for her and that she was afraid he was going to place her in jail and take her money. She also testified, in explanation of her possession of the $53, "I gets it from my son out of the army, Willie McDougall." There was no other evidence supporting or contradicting that statement. In view of the presumption which arises from the recent possession of stolen property, to be considered by the jury in connection with the reasonableness of the explanation of such possession (Harper v. State, 71 Miss. 202, 13 So. 882; Davis v. State, 50 Miss. 86; Jones v. State, 51 Miss. 718, 24 Am. Rep. 658; Foster v. State, 52 Miss. 695; Stokes v. State, 58 Miss. 677; Matthews v. State, 61 Miss. 155; Snowden v. State, 62 Miss. 100), we cannot say there is an entire absence of evidence of guilt of appellant in this case.
But the case must be reversed and remanded because of the form of the verdict of the jury. That verdict was: "We, the jury, find the defendant guilty as accessor to the crime." Section 1518, Code 1942, provides: "No special form of verdict is required, and where there has been a substantial compliance with the requirements of the law in rendering a verdict, a judgment shall not be arrested or reversed for mere want of form therein." In Wilson v. State, 197 Miss. 17, 19 So.2d 475, this court said: "The general rule, as found in the texts, is that ordinarily the verdict is sufficient in form if it expresses the intent of the jury so that the court can understand it, 22 Enc. Pl. Pr., p. 891; or that the test of the validity of a verdict is whether or not it is an intelligible answer to the issues submitted to the jury, 64 C.J., p. 1067." But it is further said in 22 Enc. Pl. Pr., pg. 966, "Nor can a verdict be amended by the court where there is doubt or dispute about what the jury found or intended . . ." and in 64 C.J., p. 1066, ". . . but a verdict is bad where it is so uncertain that it cannot be clearly ascertained what, if any, issues were passed on by the jury, or where it is not certain of itself . . . or which is otherwise so uncertain or indefinite as not to enable the court to base a legal judgment thereon . . ." Admitting, but not deciding, that "to the crime" means the crime of grand larceny, and a finding that some one had committed that crime, it cannot be told whether the jury meant by "accessor" the defendant was guilty as accessor before or after the larceny, nor whether the jury meant this defendant had received the money from another, knowing it to have been stolen, which is larceny under Section 2249, Code 1942. The evidence points strongly to another person as the one who actually took the money from Watts. Under the proof it is likely the jury thought the appellant received some of this money from that person. It is certain that the verdict returned shows the jury did not think appellant actually stole the money herself. Upon the return of this verdict the jury might have been sent back for further deliberation (Section 1516, Code 1942), but that was not done. The defects were not cured by the statute of jeofailes, Section 1544, Code 1942. We think this verdict, when applied to the proof in this case, is too vague, uncertain and indefinite to support a judgment of grand larceny.
Reversed and remanded.