98 So. 2d 116 | Miss. | 1957
The appellant, Jack Newton, was jointly indicted with Chaney Burt, alias Jim Burt, for the unlawful and felonious possession of a certain lot of tools, articles and instruments, described as being designed to aid in the commission of burglary. They were both convicted, and the appellant was sentenced to serve a term of five years in. the state penitentiary. The said Jack Newton has appealed.
< i * * * ^ bas been for some time the established rule in this state that where the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide (which likewise applies to other alleged offenses), their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge.” Weathersby v. State, 165 Miss. 207, 147 So. 481. Under the authority of that case and subsequent decisions of this Court to the same effect, the appellant’s case should not have been submitted to the jury, except upon an instruction directing a verdict in his favor.
It is stated by the attorney for the appellant on this appeal that the defendants were not represented at the trial by an attorney or attorneys, and the record fails to disclose that any attorney participated in the trial, even though the order of arraignment and plea recite that the appellant in his own proper person and by'attorney was arraigned and plead not guilty, and even though the judgment, which recited that “the defendants Jack Newton and Chaney Burt, alias Jim Burt, came in their own proper persons and by attorney” and plead not guilty.
The only instruction granted for the defendants read: “The Court instructs the jury for the defendants that if you find the defendants not guilty then the form of your verdict shall be: ‘We, the jury find the defendants not guilty.’ ”
There was no motion for a new trial in the case to raise the question that the verdict was contrary to the
Reversed, and the appellant discharged.