Opinion
April 11, 1949.
1. Criminal law — larceny — criminal intent — when trespass not involved.
The defendant had bought five cows, but he took, carried away and retained for his own use a sixth cow, with the intention so to do, and when indicted for the larceny of the sixth cow he defended on the ground that he took it openly under the bona fide belief that he had purchased the extra cow: Held that the only issue was the larcenous criminal intent vel non, and that the alternative of criminal trespass was not within the case.
2. Criminal law — criminal procedure — larceny — trespass — curative instructions.
Refusal of an instruction that if the property alleged to have been stolen was taken openly and in the presence of the owner or of third persons this then would carry evidence only of trespass, the refusal, if error, was cured by other granted instructions to the effect that if under the evidence the defendant honestly believed that he had bought the property taken, and that his belief was upon reasonable grounds, he should be acquitted.
Headnotes as approved by Alexander, J.
APPEAL from the circuit court of Franklin County; R.E. BENNETT, J.
Truly Truly, for appellant.
The lower court should have granted defendant's motion to exclude the evidence offered by the State and to direct a verdict of not guilty for the defendant; and should have granted the peremptory instruction requested by defendant at the conclusion of all testimony.
In this case there is no dispute about the fact that the defendant loaded and hauled away the cow which the indictment charged him with stealing. But in order to be guilty of larceny the defendant must have taken the cow feloniously, that is with the intention of stealing it. Sec. 2240, Code 1942; Young v. State, 18 So.2d 457. We concede that the verdict of the jury presumably resolved the conflicts in the evidence in favor of the State. Even so, the evidence is wholly insufficient to prove felonious intent and we beleive that resonable men engaged in a search for truth could not safely accept and act upon the evidence to a moral certainty of guilt as required by law as stated in Ewing v. State, 9 So.2d 879.
As it is necessary that defendant, in this case, should have had the felonious intent at the time he loaded the cow in his truck, the facts of primary importance are those surrounding and existing at the time of actual taking. It is well settled in Mississippi, as a matter of law, that when property is taken openly and publicly, in the daylight and under a claim of right or title that the necessary felonious intent to sustain a conviction of larceny is not present. Young v. State, 18 So.2d 457; Galloway v. State, 105 Miss. 897, 63 So. 313 (1913); Buchanan v. State, 5 So. 617. If the facts of this case bring it within the rule announced in these other cases a reversal of this conviction should be ordered by this court. We will endeavor to show the court that this case does come within this rule.
Boiled down to the essentials, the facts of the actual loading of the cow by the defendant are shown by the State's evidence to be that, in addition to the persons whom appellant had brought with him, there were present at the time this animal was loaded five neighbors of the complaining witness, James. The only witness for the State who testified concerning the time at which these cattle were loaded testified that they were loaded "about dark". Furthermore, according to this witness, when he walked up to the loading spot "about dark" the cattle had already been rounded up and were tied up at the loading spot. By necessary inference these cattle must have been rounded up and caught in the daytime. Therefore, regardless of any argument the State might make in this regard, it is unquestionably proved by the State's own witnesses that all the cattle, including the one alleged to have been stolen, were loaded openly and publicly, were at least rounded up and caught in the daytime and were loaded at least no later than "about dark". The State itself has proved every fact necessary to bring this case within the rule announced above except the claim of right or title, and the State's evidence at least indicates this fact very strongly.
The evidence for the State, and it is undisputed, shows that the defendant and the complaining witness had entered into negotiations on the day before the sale of certain cattle. According to the complaining witness the only persons present at the time of this negotiation were Junior Ford, defendant and himself. Complaining witness testified that he sold defendant only five head of cattle and did not sell him the cow appellant is charged with stealing. Junior Ford, another witness for the State, testified that James sold defendant six head but did not testify as to the description of the animals. The prosecution pleaded surprise and subjected him to a vigorous cross-examination but he was never shaken in his testimony. Incidentally, Junior Ford had himself been arrested and charged with stealing this cow and was at the time of the trial under bond. He was therefore testifying against his own interest as a conviction of the defendant would very probably result in the dropping of all charges against himself. What then do we have as a result of the conflict in the testimony of complaining witness and Junior Ford? Do we not have a situation in which we know that a contract of some kind was made but we cannot tell what the terms of that contract were? Junior Ford was under the impression that defendant had bought six head of cattle from the complaining witness. In a situation of this sort, where the terms of the contract must be as stated by complaining witness before a conviction can be upheld, certainly a conflict in the testimony of the only two State witnesses presents a case in which reasonable men engaged in a search for truth could not safely accept and act upon the evidence to a moral certainty of guilt.
If we turn to the defendant we find that he thought that he had bought six head including the cow alleged to have been stolen. Even assuming that defendant's wife was not close enough to hear the conversation, although she testified that she did, we find that there were three persons present and that all of them except complaining witness thought that defendant had bought six head. The verdict of the jury, of course, decided this conflict in favor of the State and decided that defendant bought only five head. But the question to be determined in this connection is not how many cattle defendant bought but how many he thought he bought. Defendant testified that he thought he had bought six head and the testimony of Junior Ford that he thought he bought six head demonstates the defendant was reasonable in believing that he had. The obvious conclusion to draw from this testimony is that though both defendant and complaining witness thought that they had reached an agreement, there was no meeting of the minds of the contracting parties. In the case of Galloway v. State, 105 Miss. 897, 63 So. 313 (1913) a firm of merchants testified that defendant had sold them a mule. The defendant testified that he had only set a price on the mule in case he should decide to sell. The family of defendant, in his absence, allowed the merchants to take the mule. The defendant a week later went to the barn of the merchants in the daytime and publicly caught the mule and took him home. He was convicted of larceny. In discussing the case the court said: "It will be observed that appellant, according to his understanding, was simply recovering his own property. A careful review of all the evidence taken at the trial convinces us that the minds of the contracting parties did not meet, and, while it was the understanding of the merchants that they had bought the mule, we cannot escape the conclusion that appellant did not so understand. We reach this conclusion after giving full credit to the evidence for the State, and after assuming that the merchants complied with their part of the contract. . . . Waiving all consideration of whether the mule was the property of McCool McQuary when he was taken from their barn, and granting that it was their property, we do not believe that the evidence warranted the conviction of appellant — all the essential elements of larceny or criminal trespass are absent."
So far as appears from the opinion of this case the testimony of Galloway was not corroborated by the testimony of any other person. In the case at bar we have the tesimony of defendant concerning his impression of the contract corroborated and sustained by the testimony of a witness for the State. The only other witness for the State who testified that she knew anything about the sale was Lula James, wife of complaining witness. On cross-examination when asked if she knew what cattle Jesse James had sold to defendant, she answered "I know what he sold; I wasn't present when they were making the bargain". On re-direct examination, in response to leading questions, she testified that the price of each of the cattle was discussed in her presence by complaining witness and defendant. When essential features of proof are involved responses to leading or suggestive questions on direct examination have a depreciated value. Ladner v. State, 9 So.2d 878.
As the intent of the defendant at the time that he loaded the cow in question is the crucial point in this case, let us examine his action at the time, and those thereafter, and see if all these actions are not more consistent with innocence than they are with guilt. Defendant arrived at the scene of the loading with several colored men and boys from Sharkey County. Several of these were children and one was a man who had been picked up by his driver. After arriving at the pasture of James, defendant caught and loaded the cattle, including the one alleged to have been stolen, in the presence of five neighbors of complaining witness. Is it conceivable that a person who has conceived the purpose of stealing a cow would carry a crowd of people with him, be met at the scene by another crowd of people and, in the presence of at least nine people, five of them neighbors of the owner of the cow and others, by reason of youth or strangeness, persons whom he could not be sure would not tell of the theft, proceed to carry out his design and load the cow? To ask this question is to answer it in the negative. The improbability that a person would steal a cow under such circumstances is the very reason for the rule of open taking not being larceny. If it is assumed that defendant did not arrive at the scene with the intention of stealing the cow and it is said that he decided to do so after he got there, it is just as improbable that he would carry out the design in such a public manner. On the other hand, a person who believes that he has bought a cow does not care who sees him load her into his truck. The undisputed facts in this case show that defendant did not care how many persons saw him load this cow and did not care who these persons were. After events show, and we concede, that the defendant was foolish in loading this cow in the absence of the complaining witness, but defendant is not charged with foolishness, but larceny. Furthurmore, this particular foolishness is something which most cattle buyers are guilty of.
After loading the cattle, including the one alleged to have been stolen, and hauling them out of the pasture defendant had his truck stopped in front of the house of complaining witness, shine his car lights into the truck and rearranged the load. If defendant had stolen a cow from James it is not likely that he would have stopped in front of his house to rearrange the load when the stolen cow was in the truck. It had been sometime since he had been by the house and for all he knew complaining witness could have come home and been at the house. If he had stolen the cow it would have been courting disaster to have stopped there. Conversely, if defendant believed that he had bought this animal from complaining witness he had nothing to fear and would not care whether James saw the cow in the truck or not.
With the undisputed facts as to the defendant's actions being as outlined above it is apparent that the jury must have based its verdict on the statements alleged to have been made by defendant to complaining witness and to the sheriffs of Franklin and Sharkey Counties. Defendant denied making most of these statements but the jury must have resolved this conflict in favor of the State. Let us examine these alleged statements.
Complaining witness testified that while in Rolling Fork on his first trip there defendant offered to give him $150.00 and bring the cow back, or bring them all back. When asked on cross-examination if defendant had said that he would bring them all back if complaining witness returned his money the answer of complaining witness was "he didn't tell me about the money part". Complaining witness also testified that defendant made him the same offer in Meadville. The sheriff of Franklin County testified that he overheard the conversation in Meadville and that defendant offered to give James $150.00 and bring the cow back or return all of the cattle if James would return his money. Defendant testified that in both conversations he offered to return all of the cattle if James would return his money, but denies offering James $150.00 Mrs. Clyde French, state witness, testified that defendant told her that he was willing to pay James for the cow in question if he would accept it and she also testified that defendant told her that he was willing "to bring all the cattle back to everybody and everybody give him his money back".
Defendant's acknowledged offer to return all of the cattle if James would return him his money is nothing more nor less than an offer to rescind the contract. Rescission of contracts is a common practice in the business world when it develops that there has been some misunderstanding about the terms of the contract. It cannot, by any stretch of the imagination, be considered an admission of guilt and no more need be said about it.
We do not dispute the fact that the jury is entitled, in proper cases, to infer guilt from the fact that the defendant offers to compromise the matter and have all charges dropped. But we do contend that guilt is not necessarily to be inferred from such an offer and when considered with the undisputed facts in this case should not be inferred, and the jury was not justified in so inferring. As in this case felonious intent was sought to be proved by inferences from defendant's statements it might be well to consider what the court said in the case of Ewing v. State, 9 So.2d 879. At page 880 the following is found: "The corpus delicti, involving a criminal intent, is sought to be shown by inference from such circumstances as the departure of the defendants to Arkansas and other slight discrepancies in the testimony, which we have concluded do not present a case which rules out all hypotheses consistent with defendants' innocence. The question before us is not whether the defendants are in fact guilty or are probably guilty, but whether the State has made out beyond a reasonable doubt a case sufficient to withstand the weight of testimony consistent with innocence. The doubt that reasonable men engaged in a search for truth could safely accept and act upon the evidence to a moral certainty of guilt must be resolved in favor of the defendants."
The case at bar is very similar to the Ewing case in regard to the facts and the same question of felonious intent is presented in both. In the case at bar the only thing from which an inference of felonious intent can be gotten are the alleged statements of defendant. Verbal remarks are tricky things and are easily misunderstood or forgotten. Certainly they must be considered in the light of the known and undisputed facts as to the actual taking of the cow and when so considered we earnestly contend that no reasonable men engaged in a search for truth could safely accept and act upon these statements in order to infer the existence of criminal intent at the time defendant loaded this cow into his truck. Even unequivocal confessions must be viewed with great caution and in Mississippi the rule is felony cases the corpus delicti must be proved by evidence aliunde the confession of the accused. Gross v. State, 191 Miss. 383, 2 So.2d 818 (1941).
The court erred in granting an instruction for the State on the verdicts which the jury might return because the element of trespass was omitted.
The court granted the following instruction for the State: "The court instructs the jury for the State of Mississippi that in this case you may return either of the following verdicts: 1. We, the jury find the defendant guilty as charged. 2. We, the jury find the defendant not guilty."
Under the evidence in this case the jury may have desired to have found the defendant guilty of trespass, but this instruction had the effect of restricting the possible verdicts which they might return to "guilty" or "not guilty" of larceny. It is unnecessary to make a long argument on this subject as it was thoroughly discussed by the court in Grant v. State, 172 Miss. 309, 160 So. 600 (1935) and the cases dealing with an instruction of this type were considered and distinguished. The court in the Grant case held that the word "may" as used in an instruction of this type was not permissive but mandatory and that the giving of an instruction such as this was reversible error.
The defendant in this case did not request an instruction dealing with trespass but his failure to request such an instruction will not cure the error in this instruction given for the State. Grant v. State, supra; Tatum v. State, 142 Miss. 110, 107 So. 418 (1926); Morris v. State, 174 So. 562.
As it might be argued that the instruction in this case is not exactly like the ones in the cited cases, we wish to point out that in the cited cases the instructions were "The court instructs the jury for the State that if you find the defendant guilty in this case, your verdict may be in either of the following . . .". In Tatum v. State, supra, an effort was made to distinguish this form of instruction from the instruction declared erroneous in the case of Allen v. State, 139 Miss. 605, 104 So. 353, in which the form was "The court instructs the jury for the state that you may return either of the following verdicts in this case . . .". In the Grant case the court held that these instructions were not properly distinguishable and overruled the Tatum case in so far as it held to the contrary. A careful reading of the cases dealing with such instructions shows that the instruction complained of in this case is clearly erroneous, and that its allowance by the court constitutes reversible error.
The court erred in refusing the instruction requested by the defendant instructing the jury that an open taking of the property alleged to have been stolen carried with it only evidence of trespass.
The court refused the following instruction requested by the defendant:
"The court instructs the jury for the defendant if the property alleged to have been stolen is shown to have been taken openly and in the presence of the owner or third persons then this carries with it only evidence of trespass."
No useful purpose would be served in taking the time of the court by belaboring the issue of whether or not this instruction should have been granted. It was copied verbatim from the case of Lawson v. State, 161 Miss. 179, 138 So. 361 (1931), in which the court held that it was reversible error to refuse this instruction. Under the evidence in this case the open taking was undisputed and the instruction was applicable and should have been granted.
In the case of Littlejohn v. State, 59 Miss. 273 (1881), the only evidence that the cow alleged to have been stolen was taken openly was solely the testimony of the accused and was disputed by the persons in whose presence he testified that he took the cow. Yet the court reversed for the refusal of this instruction. This case is obviously a much stronger case for the granting of this instruction and we contend that it was reversible error to refuse it. George H. Ethridge, Assistant Attorney General, for appellee.
As I see this case, there is considerable conflict in the evidence and that for the State was ample, if believed, to sustain a conviction, Consequently, the verdict of the jury is not against the great weight of the testimony but greatly outweighs the testimony of the defendant. To my mind, the testimony of the sheriff of Franklin County and the sheriff of Sharkey County with reference to interviews with appellant and the search for the cow in question show clearly that it is not a case of taking the cow described in the indictment by mistake under the honest belief that she had been bought from James. The fact that he stated in the presence of both of the sheriffs that he had sent all of the cattle that he bought to the stock yards in Greenville without disclosing to them or mentioning at that time that he had taken the cow described in the indictment off the truck and left her in a pasture at his home. These witnesses went to Greenville and examined the cattle in the stock yards there and did not find the cow in controversy. They then returned to Rolling Fork and the cow in question was found there in the possession of the appellant and he admitted that he took the cow off the truck at Rolling Fork and left her to be treated by a veterinarian. There is no reason why he should not have told these people promptly that he had the cow and that he had gotten her under the belief that she was one of the cows sold to him. This misleading statement that he had sent all the cows bought in Franklin County to the Greenville stock yard is clear evidence of guilty knowledge that he had the cow in question and that he had not bought her and had loaded her onto the truck in good faith that he had bought her. It is inconsistent with innocence by taking the cow in question which unquestionably he did not take in good faith, and, consequently, the doctrine of the cases cited by appellant do not come into play. I concede that if the appellant had promptly admitted the possession of the cow and explained his contention that he loaded her by mistake there might be room for the contention announced in these cases cited by appellant. Appellant seems to rely upon the cases of Ewing v. State, 9 So.2d 879; Upton v. State, 192 Miss. 336, 6 So.2d 129; Galloway v. State, 105 Miss. 897, 63 So. 313, and Buchanan v. State, 5 So. 617. I concede that taking of property under honest mistake although unlawfully secured would not constitute larceny and I concede also that all the circumstances taken together must establish guilt beyond reasonable doubt, but the doubt is for the consideration of the jury and they have the right to accept the testimony of a part of the witnesses as against the testimony of other witnesses and have a right to accept a part of the testimony of one witness and reject other parts and to take one part of the evidence of one witness and another part of the evidence of another witness and determine the truth by comparing the reasonable testimony and drawing all legal inferences and deductions from the testimony.
The conduct of the appellant when the sheriffs went to him to confer with him about the possession of the cow described in the indictment is a conclusion or furnishes ground for a conclusion that the appellant was consciously guilty and was concealing the whereabouts of the cow which is inconsistent with the conduct of an innocent person.
Appellant complains of instructions appearing at pages 162 and 163 of the record given for the State, but I submit that the instructions are beyond reasonable criticism. Instructions must be considered in the light of evidence and men of good intelligence, sound judgement and fair character would know that they were to find the proper verdict if the evidence in the case warrants and in no manner are they authorized to arbitrarily find a certain verdict. The rule is that all of the instructions are to be considered together, one as supplementing or modifying another. In this case when we take up the instructions of the defendant, all the law applicable to the case on his behalf was given. Instructions, however, are to be considered as a whole and if so considered they properly announce the law the court will not reverse. Some of the appellant's instructions were, in fact, far more liberal than he should have received.
Appellant appeals from a verdict and judgment of conviction of grand larceny. The errors assigned and argued are (1) refusal of a peremptory charge; (2) an instruction given the State and (3) an instruction refused to the defendant.
We are of the opinion that the proof of guilt was, under the evidence, sufficient to create an issue of fact for the jury and that refusal of the peremptory charge was proper.
The State procured the following instruction:
"The Court instructs the jury for the State of Mississippi that in this case you may return either of the following verdicts:
"1. `We, the jury, find the defendant guilty as charged.'
"2. `We, the jury, find the defendant not guilty.'"
It is contended that there was improperly omitted an alternative of criminal trespass. (Hn 1) Here the defense was that the defendant who allegedly had bought only five cows, took and carried away six under a bona fide belief that he had purchased the extra cow for whose taking he was indicted. There is no question that this animal was taken with an intent to retain and control it for his own use. The asportation was complete. There remained as a factual issue only the factor of a criminal intent. It will be seen, therefore, that if such intent did not exist he would be guilty of neither larceny nor criminal trespass. If it did exist the crime would be larceny. Hence the only alternative to guilt as charged was a finding of not guilty.
(Hn 2) The trial judge refused the following instruction for the defendant:
"The Court instructs the jury for the defendant that if the property alleged to have been stolen is shown to have been taken openly and in the presence of the owner or third persons then this carries with it only evidence of trespass."
Were the refusal of this instruction not cured by other instructions we would be compelled to re-examine the dictum in McDaniels v. State, 8 Smedes M. 401, 16 Miss. 401, 47 Am. Dec. 93, which was lifted from the opinion therein and later incorporated in instructions approved in Littlejohn v. State, 59 Miss. 273, and Lawson v. State, 161 Miss. 719, 138 So. 361.
The following instructions were given on behalf of the defendant:
"The Court instructs the jury for the defendant that if you believe from the evidence in this case that the defendant, Malcolm Oakman, honestly believed that he had bought the red white-faced cow, alleged in the indictment to have been stolen, even though he might have been mistaken in this belief the jury shall find the defendant not guilty."
"The Court instructs the jury for the defendant that: — If you believe from the testimony in this case that Jesse James sold the defendant six animals, but that the defendant, by mistake took one cow that Jesse did not intend that he should, then the defendant would not be guilty of larceny and you should acquit."
"The Court instructs the jury for the defendant that: — Any taking and carrying away of the property of another, in order to constitute a crime, must be felonious, that is to say must be with felonious intent. An open and peaceful taking, without an attempt to conceal the taking of the property involved, raises a presumption that there was no felonious intent. An honest taking, an honest belief on the part of the one doing the taking, and charged with the crime, would not constitute larceny. An honest belief on the part of the one doing the taking the property of another that he had the right to take the property must not only be honest but must be reasonable, such a belief that an honest, reasonable and prudent person would be justified in entertaining at the time of the taking."
The last quoted instruction, by importing the force of a presumption into what is without doubt a comment on the weight of the evidence, transcended the rights of the defendant. The point, however, is not its propriety but the fact that it was procured, and its curative effect upon a failure to obtain the instruction insisted upon.
Affirmed.