Opinion
June 13, 1949.
1. Criminal procedure — accessory to larceny — when proof not sufficient.
When an accused has been indicted as a principal in grand larceny and conviction is sought in the effort to prove her an accessory, the proof must establish beyond a reasonable doubt that the person so charged has in fact been guilty as an accessory, and when the only proof of her guilt was that she was present, seated in the thief's automobile when the stolen property was delivered by him to the purchaser thereof, in which she took no part, such proof was insufficient to sustain a conviction as an accessory.
2. Criminal procedure — larceny — evidence as to shoes of defendant fitting tracks at place of theft.
When the evidence shows beyond a reasonable doubt that the cattle in question had been stolen and that the defendant sold and delivered them at a stock sales barn, testimony that the shoes found in defendant's automobile fitted the tracks found at the point where the cattle were stolen was admissible, when only the facts unmixed with opinion were offered, and the proof, all as stated, was sufficient to sustain a conviction.
Headnotes as approved by Montgomery, J.
APPEAL from the circuit court of Franklin County; R.E. BENNETT, J.
Pittman Pittman, for appellants.
In the outset, may we say that the evidence against the appellant, RoseMary Hunnicutt, wholly fails to connect her with the theft of the property involved, in fact, there is no evidence connecting this appellant with the theft, delivery, or sale of the cattle, and the most that can be said against this appellant is that she was in the presence of the appellant, Charles A. Summerall, at the County Sales Barn at Liberty, Mississippi, when it is said that the appellant, Summerall, actually delivered the cow and heifer, and even then, the State witness, Marie Ball, testified that the appellant, Hunnicutt, was outside of the sales barn and had nothing to do with the sale of the said stock. That the entire transaction was made with the appellant, Summerall, and the only evidence connecting the appellant, Hunnicutt, in any wise in this case, was that she was seen with Summerall at the place where the stock were sold.
We submit further that the lower court erred in permitting the testimony as to the automobile tracks and tracks made by a man's shoes, and the court went entirely too far when it permitted the officers to testify that the man's shoes unlawfully taken from the appellant's automobile compared with the tracks found at the scene where it is said by opinion evidence that cows were loaded on a vehicle. The court will bear in mind that there is no evidence in this record to show that the shoes that were unlawfully taken from the appellant's car belonged to the appellant, or that he had any connection with the said shoes, or that he ever saw the said shoes, and to permit such evidence to be introduced in this case, over the appellants' objections, was highly prejudicial and certainly inadmissible.
In support of our contention, we submit for the court's consideration, the case of Herring v. State, 84 So. 699. The court said in this case, "There is no presumption under the law that defendant made tracks or wore shoes that made them. That before tracks can be weighed against the defendant, it must be shown by the evidence that he made them or wore the shoes that made them." The court said further, that even though witnesses made statements that said tracks or footprints compared with and looked to be the identical shoes belonging to or worn by the defendant were incompetent and is prejudicial to the rights of the defendant, especially so where it is a close case depending upon circumstantial evidence.
We submit therefore that the officers in the first place had no right under the law to seize the shoes in an unlawful search of the appellant's automobile, and indeed they had no right to use them in the trial of the case by testifying that they compared to the tracks found at the scene for the reason that there is no testimony to show that the shoes were ever worn by the appellant Summerall, or that they were his shoes, or that he knew anything about the shoes.
We submit for the court's consideration, in support of our contention as to the unlawful search of the appellant's automobile, the case of Millett v. State, 148 So. 788.
George H. Ethridge, Assistant Attorney General for appellee.
I respectfully submit that the testimony of the State's witnesses is sufficient to show that RoseMary Hunnicutt was aiding in the transportation of the cattle before they were sold and before the offense was fully committed, and that she comes within the statutes. While a person does not have to testify for himself yet when testimony is produced in a prosecution by the State from which a logical conclusion can be drawn that the person was aiding and assisting in the commission of a crime, this warrants the jury in drawing every reasonable inference from the testimony and in such case the testimony of the State is not contradicted or the jury has the right to draw a reasonable deduction that such person accompanying the thief in transporting the cattle and was with him when they were being sold or disposed of, that the conviction of the appellant Hunnicutt was sustained by the evidence and the judgment should be affirmed as to her.
It is complained by appellants in their brief that Summerall was unlawfully arrested without a warrant and that the search which was made of his car and the finding of the shoes and clothing in said car was unlawful. The theft of the cattle is clearly established beyond any doubt at all and there was certainly reasonable ground to believe that the appellants were the thieves who stole the cattle. The search and arrest may be made without a warrant under Section 2470, Code of 1942, on the evidence which Sheriff Williams had which amounted to probable cause for believing that a felony had actually been committed and that appellants were the party who committed the felony.
The appellant complains about the introduction of the evidence with reference to the footprints between the home of Mr. Grieger and the river and the fitting of the shoes of the appellant into the tracks so found and contends that that evidence was not admissible. Under the decision of this court in Herron v. State, 122 Miss. 647, 84 So. 699, in the first syllabus it was held: "In a homicide case, where all the testimony for the state is circumstantial, it is competent to show the character of footprints and tracks at or near the scene of the homicide, where the witneses have made comparisons or are in position to testify to measurements, comparisons, or any peculiaritis, but it is not competent for the witness to say that two tracks are the same, or to express his opinion on the subject; it being for the jury to draw the conclusions from the testimony and to decide from all the facts deposed to whether the tracks testified to were in fact defendant's tracks."
Appellants also contend that under the case of Millette v. State, 167 Miss. 172, 148 So. 788, the search of the car without a search warrant on the day following the arrest was not authorized by law. The facts here are that the sheriff of Amite County, in making the arrest, took Summerall to jail in his car but permitted Miss Hunnicutt who the sheriff thought was the wife of Summerall to drive the car back to the barn and it is not definitely shown by the record whether the car was in the legal possession of the sheriff or not, but it is shown that the appellant and Miss Hunnicutt were going away from the barn after knowledge that the sheriff was there investigating the affair and the sheriff arrested Summerall and placed him in jail and took possession of the car.
This court held in Tolliver v. State, 133 Miss. 789, 98 So. 342, that an officer making a lawful arrest when a defendant was traveling in a car on the highway had a right and it was his duty to take control of the car which he did in that case and to make a search of it to see if there was any violation of the law by articles being in the car, it being found therein that Tolliver had whiskey in the car and that he was arrested on another offense under a warrant for arrest duly made. That it was not only a right but a duty of the arresting officer to take charge of the car and whatever was contained in it to preserve it. In the Millette case, supra, the car was not in the custody of the officer when he arrested Millette but was on the streets and unattended and after the sheriff in that case took possession of the prisoner and put him in jail there was an interval in which the car was not in the actual possession of the arresting officer and the court there held that under those facts the search of the car a day after the arrest was unlawful. The court in that case relied on Agnello v. United States, 70 L.Ed. 145, 51 A.L.R. 409, which case is not pertinent here, there being a differentiation in the facts that differentiate the proper legal decision as applied to the facts.
The appellants also argue that there was no proof that the shoes and clothing found in the car when the sheriff searched it belonged to him or was put in the car by him. The law is well-settled that a person is presumed to know what is in his car or house or other place belonging to the accused. It was held in Gordon v. City of Jackson, 119 Miss. 325, 80 So. 785, that in the absence of definite proof a defendant could be charged with notice of what was found in the back room of his barber shop in that case, where a bottle of intoxicating liquor was found, the proof being such that the jury could draw the inference that it belonged to the appellant in that case. See also Williamson v. State, 191 Miss. 643, 4 So.2d 220, and Brown v. State, 192 Miss. 314, 5 So.2d 426.
The appellants were convicted in the Circuit Court of Franklin County on a charge of grand larceny, and Charles Summerall was sentenced to a term of five years; Rose Mary Hunnicutt received a three-year sentence; and from the judgment of the lower court both appeal.
It appears from the record that Paul A. Greiger, a dairyman of Franklin County, missed a cream colored muley Jersey cow, and a white-faced red heifer with horns, and reported this loss to the Sheriff of Franklin County. He and a neighbor had noticed a place near his pasture where automobile tracks, human tracks, and cow tracks, indicated that cattle had been loaded. There was no woman's tracks to be found at this location. The sheriff of Franklin County reported the loss to the sheriffs of surrounding counties, and particularly to the Sheriff of Amite County. The Sheriff of Amite County proceeded to the sales barn near Liberty and there he saw cattle answering the description of those lost. He found that these cattle had been sold by Charles Summerall, and that Rose Mary Hunnicutt was present in the car at the time the cattle were delivered to the sales barn.
Charles Summerall and Rose Mary Hunnicutt were positively identified by those in charge at the sales barn as being the persons who had delivered these particular cattle, although Rose Mary Hunnicutt appears only to have been present in the car and waiting on the outside, and not participating in any way in the transaction except by being present.
Paul A. Greiger was notified, and he and the Sheriff of Franklin County came down to the sales barn where the cattle were positively identified. Charles Summerall and Rose Mary Hunnicutt were placed under arrest shortly thereafter, and were delivered to the Sheriff of Franklin County, who carried them to the Franklin County Jail where he incarcerated them. The car belonging to Charles Summerall was taken in possession by the sheriff and parked on the courthouse lawn. While Summerall and Hunnicutt were in jail, the sheriff inspected the car and therein he found a pair of men's shoes and certain articles of clothing. He carried the shoes to the scene where the cattle had been loaded, and there fitted them into the tracks at that location. It appears from the evidence that the shoes were of the same size as the tracks, and fitted the tracks. Summerall and Hunnicutt told the sheriff of Franklin County that they did not know anything about the cows, they had never seen the cow and calf, and did not carry them to the sales barn at Liberty. Rose Mary Hunnicutt first said she was Charles Summerall's wife, and then later told the sheriff she was not his wife but was Rose Mary Hunnicutt.
The first assignment of error is that the court erred in overruling the motion of Rose Mary Hunnicutt made at the conclusion of the introduction of the State's case to exclude the testimony and peremptorily instruct the jury to find her not guilty.
We think this assignment of error is well taken. (Hn 1) Rose Mary Hunnicutt is presumed to be innocent until she has been proven guilty beyond every reasonable doubt. There is no proof that any track made by a woman's shoe appeared at the location where the cattle were loaded. The testimony does not show that she participated in, or in any way assisted in, the theft or the transportation of the cattle to the sales barn at Liberty. The only evidence established against her, as shown by this record, is that she was present, seated in the car, at the sales barn when the cattle were delivered there. The proof does not show where Rose Mary Hunnicutt lived, or where she got into the car. It is quite possible that she could have been picked up along the road, or in the Town of Liberty, and been thoroughly innocent of any knowledge of the larceny of the cattle. It is true that Section 1995 of the Code of 1942 provides that every person who shall be an accessory to any felony before the fact shall be deemed and considered a principal, and shall be indicted and punished as such, and this whether the principal has been previously convicted or not. However, it is necessary for the proof to establish beyond a reasonable doubt that the person so charged as an accessory has in fact been guilty as such. The proof here is wholly insufficient to establish the guilt of Rose Mary Hunnicutt, and the judgment of the lower court as to her is reversed and she is discharged from custody.
The second assignment of error is that the court erred in overruling the motion of Charles A. Summerall to exclude the testimony and peremptorily instruct the jury to find him not guilty.
There is no merit in this motion. The proof here is entirely sufficient to convince the jury beyond every reasonable doubt of his guilt, and the court was eminently correct in overruling said motion.
It is urged as error that the court erred in admitting testimony as to the shoes found in the appellant's automobile, and the comparison of the shoes with footprints found on the prosecuting witness' property without showing the appellant made the footprints or wore the shoes. (Hn 2) The theft of the cattle is clearly established beyond any reasonable doubt, and there was certainly reasonable ground to believe that Charles Summerall stole the cattle. The search and arrest without a search warrant under Section 2470 of the Code of 1942 on the evidence which Sheriff Williams had amounted to probable cause for believing that a felony had actually been committed and that Charles Summerall was the party who had committed it. The evidence with reference to the footprints and the fitting of the shoes of the appellant into the tracks so found was admissible. Appellant relies on the decision in the case of Herring v. State, 122 Miss. 647, 84 So. 699, but the facts in that case are wholly different from the facts in the case at bar. The proof in the case at bar is amply sufficient to justify the jury in believing Charles Summerall guilty beyond every reasonable doubt. In addition, the witness did not undertake to state that the tracks were made by the defendant, but the witnesses only stated the facts observed by them without offering their conclusions. The Herron case is authority for the competency of such evidence as to facts and to facts alone. It is for the jury and the jury alone to draw conclusions from the facts. The error complained of in the Herring case was the witnesses had stated their conclusions and that these conclusions were prejudicial. But such is not the evidence in the case at bar, and there is nothing in the holding in the Herring case to render the testimony here incompetent. In fact, the Herring case, as we construe it, renders the testimony here competent.
There are other assignments of error, but they are not sufficient to merit a discussion. After a carefull search of the record in this case, we are satisfied that there is no error in the proceedings in the lower court justifying a reversal as to Charles Summerall. It is provided in Rule 11 of this Court that no judgment shall be reversed on the ground of misdirection to the jury, or improper admission or exclusion of evidence, or for error as to matter of pleading or procedure, unless it shall affirmatively appear from the whole record that such judgment has resulted in a miscarriage of justice. We do not feel that the judgment here has been a miscarriage of Justice, and the judgment of the lower court as to Charles Summerall is affirmed.
Affirmed in part, and reversed and rendered in part.