Hogsett v. State

2 Morr. St. Cas. 1505 | Miss. | 1872

Handy, J.:

The plaintiff in error was indicted and convicted in the circuit court of Rankin county, for the larceny of two bales of cotton.

The evidence on which the conviction was founded is in substance as follows: Joseph Hudnall testified that, about 11 or 12 o’clock at night, he was informed there was a noise at the gin-house on his father’s plantation, and he supposed some one was stealing cotton; that he made haste and proceeded to the gin-house, and pursued a wagon and overtook it about half a mile from the gin-house, and it contained two bales of cotton, which he identified as his father’s. On his overtaking the wagon, the persons who were with it fled, and he saw no person. On the next day he went to Brandon to find the owner of the wagon, but could not; and on the following day, accompanied by Ool. Jayne, he went to Jackson, taking the wagon with them, and they drove up before S. Lemly’s door, and Mr. Lemly acknowledged that the wagon was his, and that the accused was hired by him as his driver to do hauling, and that he paid him by the month or week. The accused was then present, and stated that, as a wagoner, he had been hired to go to Rankin county, and haul some cotton to Jackson; that the man who hired him had paid him $15, and promised to pay him $10 more when the hauling was completed; that he started with his wagon, and after proceeding about five or six miles in tbe direction of Brandon, as directed, the white man who had hired him met him, and told him that he could not get the cotton he originally intended him to haul, and that the accused would have to go to Brandon and haul other cotton; that the accused, with another negro, came on to Brandon, where they stayed until late at night, and with the white man, and two other negroes, Avho got on the wagon, proceeded to Mr. Hudnall’s gin-house ; but just before they reached there, the wagon made a considerable noise, and the white man cursed the accused, and told him not to make so much noise; that the accused then suspected for the first time that the object of the white man was to steal, and he told the white man he had better drive the wagon himself, and that accused gave up the driving to him; that the accused was mad, and did not help to load tbe wagon, but was near by; tbat he did not know tbe white man’s name, but had often seen bim in Jackson, and knew bis face. Witness Hudnall stated, tbat the cotton was taken from his father’s gin-house in Rankin county, and was worth $200 per bale.

J ayne corroborated the statements of Lemly and the accused, as detailed by Hudnall, and this was all the evidence for tbe state.

Two witnesses for the accused testified that they had known him for many years, and that he had always sustained a good character for honesty. And here the evidence for the defense was closed.

The first error assigned is, that the declarations of Lemly, as stated by the witness Hudnall, were improperly allowed to go to the jury.

This evidence went to the jury without objection on the part of the accused, and- therefore its admission cannot be assigned for error; but besides this, it was immaterial, since the substance of it was admitted in the statements made by the accused; and, having been made in bis presence, and not denied, it must be taken as adopted by bim.

The second error assigned is, that the court granted tbe first instruction asked by tbe state, which is in these words: .

“ That the confession of the accused of his guilt, when confirmed by circumstances, becomes tbe highest evidence of his guilt; and the jury have the right to receive a portion of the confession, and reject other portions, if tbe attending circumstances, in their opinion, warrant such rejection.”

This instruction is objectionable in two respects : 1st. .It assumes tbat the statements made by tbe accused were a con-', fession of bis guilt. It went to the jury as the opinion of the court, that the statements had that effect in law.. This was. error. It was for the jury to determine, upon consideration of his whole statements, whether or not they showed .guilt, and that was a matter entirely for their determination. He was entitled to tbe benefit of all he said at.the time, if anything tending to his exculpation, and that was to be considered by tbe jury in connection with such facts stated by him as tended to inculpate him; and from the whole the jury should have been left free to determine whether it showed his guilt or not. 2d. It instructs the jury as to the grade and weight of the assumed confession. This was erroneous. It was the duty .of the court to admit the evidence, and to tell the jury that it was competent testimony to be considered by them; and that was the extent of the power of the court over the matter. All the rest was the province of the jury. It was for them to graduate' its character and to determine its efleet; and it having been pronounced competent to be considered by them in making up their verdict, it rested with the jury alone to give such weight to it as, under all. the circumstances, they might consider it entitled.to. Neither the weight nor the character of the evidence was within the province of the court, as a matter of law' to be declared by the court, but in both respects it was a matter to be fixed by the jury. The court declares the law, and the jury responds to the facts. The powers of each are well de-' fined, and cannot be too carefully observed; and an encroachment of either upon the province of the other cannot fail to produce confusion. A pra'ctice leading to such a result cannot be too firmly discountenanced.

The instruction comes fully within the rule in Brown v. State, 32 Miss., 433. It is insisted, in behalf of the state, that the clause in the instruction as to confirmation by circumstances, takes it out of the principles recognized in that case. But we do not think so. If there were independent circum-’ stances in this case, tending to corroborate the statements of the accused, and to show his guilt, such circumstances were' proper to be considered by the jury, who, it must be presumed, would give them their due weight as matters of fact. But there was nothing in that state of facts calling upon the court to declare as matter of law, that such evidence' was of the highest grade to establish guilt.

' The third assignment of error is, that the second instruction given for the state is erroneous. It is, “ that though the prisoner may not have laid his hands upon the cotton, yet if he was near by, aiding and abetting the parties, he is deemed a participant, and that is a sufficient taking.”

This is undoubtedly correct as an abstract proposition, and we think it was proper in reference to the evidence in this case. It submitted tbe question of the presence of the accused with a criminal intent to the determination of the jury, and we think the evidence was such as properly to present that question for their consideration. Taken in connection with the sixth in- . struction given for the accused, the rule of law on the whole ■ question was properly stated to the jury.

The fourth and fifth assignments refer to the sufficiency of the evidence to sustain the verdict, and as that question will be properly presented to the jury upon the new trial, it is not proper that we should now express any opinion upon the subject.

The judgment is reversed, the verdict set aside, and the case remanded for a new trial.