Cole v. StateCole v. State
Appellant, W. B. Cole, alias W. B. Boyd, was convicted in the Circuit Court of the First Judicial District of Panola County of grand larceny, for the theft of three automobile tires and an electric power saw, belonging to the Short Planting Company, a partnership. The only evidence in the record connecting appellant with the theft was the testimony of an alleged accomplice, Willie Hightower, and a confession by appellant.
The theft apparently occurred around January 24, 1952, in the nightime at approximately 10:00 p. m. Billy Shepherd, assistant manager of the Short Planting Company, testified that he lived on the plantation and within seventy-five feet of the general repair shop building of the plantation; that “sometime in January” and on a Saturday afternoon the tires and saw which were later stolen were in the shop, but on Wednesday or Thursday of the following week he again worked in the shop and they were gone; that no one had been authorized to remove this property and that he had not seen it since that time. He said that Charles Hudson, a colored blacksmith, worked in the shop most of the time; that Willie Hightower would help him from time to time; that appellant had worked in the shop for two days during the week preceding the time the property was missing; that he had seen appellant hanging around the shop, and that on one occasion appellant came after some lumber; that appellant had been living on the place only a short time, but had been with Mr. Short for five or six years.
Willie Hightower testified that on January 24th he was working for Shepherd on the plantation driving a truck; that on that night, Thursday, between nine and ten o’clock p. m. he and appellant went over to the plantation shop. Hightower said that appellant had solicited him four times to help him steal the tires and that he agreed on the fourth occasion; that one day in the shop appellant asked the witness to help him do this, saying that he would pay him something to do it; that the witness and appellant drove to the back of. the barn in a pickup belonging to appellant or his father; that appellant filed the latch or lock on the shop and that they stole four tires and the electric saw. High-tower said that appellant stated he wanted to put the tires on his pickup and wanted the saw for his father; that after they left the shop they heard a shot up at the house, but they were then down under the hill; that they loaded the property in the pickup, and appellant let Hightower out at his house and appellant drove on with the tires and saw; and that appellant said he would give the witness something to help him but he never paid him. Hightower admitted that he had recently confessed to stealing some cattle along with his brother; that his brother had driven down from Chicago in his car and after the cattle theft had driven back to that
The State then introduced a written confession signed by appellant. The sheriff and E. J. Ainsworth, special cattle investigator, testified that it was free and voluntary. Appellant testified that although he was not physically assaulted, the officers had threatened to beat him up and had interrogated him regularly over a period of several days before he signed the confession; and that he was in fear and was intimidated into making the confession. The trial judge found that it was voluntary and admitted it in the evidence. The confession was typewritten in question and answer form. It stated that appellant and Hightower went over to the shop late one night and got the tires and saw; that someone turned on a light and shot out that way, but he and Hightower had left and were going toward the truck about 100 yards down in the pasture at the time; that they put the stolen property in the truck and drove down the road, where appellant let Hightower out; that appellant then drove on over to a gravel pit and hid the tires near a colored school, close by a little cedar tree; that appellant went
E. J. Ainsworth testified that he had-the confession of appellant typewritten and that it was read back to appellant before he signed it; that he had talked to appellant several times before he confessed; that appellant had carried him and the sheriff out in the country and took them to a place where he said the tires and saw were hidden, but that they were not there. Sheriff Darby testified that appellant had guided him and Ains-worth out near a gravel pit where appellant said he had hidden the stolen property under a little cedar tree, which was 200 to 300 yards off the road; that under the tree “the grass was mashed down like there had been something there,” but he could not get any idea as to what the objects might have been. He said that when he first brought appellant into Hightower’s presence, appellant asked Willie why he wanted to lie about him and that he, the sheriff, told appellant to hush up; that he had interrogated appellant off and on for several days before he confessed.
Appellant testified and denied any connection with any theft of tires or saw from the shop. He said that he gave the confession after he had been threatened by the sheriff with a beating if he did not give it, and that the confession was not true; that what was written down and read in court was what he said, but that he could not read it; that he made up the tale because he had been told that his boss man would get him out of jail if he would confess; and that on. the night of the theft he was at home. Appellant said that there were no tires or saw out by any cedar tree as far as he knew; that he had never talked with Hightower about stealing the tires; that he lived with his mother and father, and was thirty years old; that he made the statement in his confession about hearing the shot when he was in the pas
Since there was a conflict in the evidence on the issue of the voluntariness of the confession, we affirm the finding of the trial court that it was voluntary and therefore admissible in evidence. Hence appellant’s conviction is based upon the testimony of the accomplice Hightower, which is wholly uncorroborated by any other evidence except the confession, and upon the confession. Although reluctant to disturb the verdict of the jury, we have concluded, after a careful examination of the evidence, that the testimony of the accomplice and the confession are so improbable, unreasonable and contradictory on this record as to be wholly insufficient for us to be able to say that appellant’s guilt was proved beyond a reasonable doubt.
This Court has adopted a rule that a defendant can be convicted on the uncorroborated testimony of an accomplice, but it has carefully restricted the scope of that doctrine by holding that such uncorroborated testimony should be viewed with great caution and suspicion, and that it must be reasonable and not improbable or self-contradictory, or substantially impeached. Nichols v. State,
Not one but a number of aspects of Hightower’s testimony, when considered together, make it an exceedingly improbable and unreasonable story. Hightower is a confessed cattle thief. Yet he said that appellant had to
And we think that similar deficiencies exist with reference to the confession. ¥e assume that it was voluntary. Appellant’s statement in the confession that he
We think that the motion for a new trial should have been sustained because the conviction is against the great weight of the evidence. It is not often that a trial or appellate court is justified in setting up its judgment against that of the jury on an issue of fact, but this case is one of that character. Compare Jefferson v. State,
Reversed and remanded.