89 So. 2d 846 | Miss. | 1956
Lead Opinion
This is the second appearance of this case in this Court. On the former appeal appellant had been convicted of armed robbery and sentenced to a term of twenty-
On the second trial of this case appellant was again convicted and sentenced to serve a term of twenty-five years in the state penitentiary. The record shows without substantial dispute that a beer joint owned by W. E. Farr and located in Clay County near the Webster County line, and a distance of about thirty or thirty-five miles from the City of West Point, was robbed at about 12:30 or 1:00 o’clock A.M. on the morning of June 2,1953. The place had closed for the night and was in charge of a Negro named Andy Rimmer, who slept in a room in the rear of the place. There was a knock at the front door which awakened him, and he went to answer the knock and saw two men who at the point of a pistol forced their way into the place. They took Andy’s pistol from under the pillow where he was sleeping and securely taped his legs together with wide adhesive tape and also taped his eyes and his mouth so that he could make no outcry. They took a quantity of money from the cash register and also took all of the personal money which Andy had and required him to sit down on the cot where he had been sleeping. They then backed a truck up near the front door and proceeded to load the truck with approximately 300 cases of Budweiser beer, which necessarily required some time. Andy did not see all of the men engaged in the robbery. He did see the first two who came to the door and whose faces were covered, but he estimated from the noise that occurred in the carrying out of the beer and loading it on the truck that four men were engaged in the robbery. During the course of the robbery, while the beer was being loaded, an automobile drove up and the occupants saw two men, one being at the front of the truck and the other at the rear, and
The only witness who testified that the appellant participated in this robbery was one Ernest Rose, who testified that he came from Texas to Columbus in May 1953 at the request of Walter Scott, who is the same person as W. R. Scott above mentioned. He first lived at a tourist court across the river bridge at Columbus. He said that on .Saturday, May 30,1953, he first met the appellant at his tourist cabin; that he and Robert Ballow were already at the cabin and that Walter Scott came there and brought the appellant with him, and that the appellant planned the robbery on this first meeting. He testified that after the robbery they stored the beey at a farm house near the Alabama line and that the appellant arranged for sale of it later. He said that the beer was sold in 100 case lots and that the first sale was made to Hood Luther in Pontotoc County and that he was present on this occasion. He further testified that on the following Saturday, June 6, a Bill Wilson wired $300 from Tupelo to Scott at Columbus and that Scott divided this money with him the following morning.
It was shown without dispute that the shotgun which was fired on the occasion of the robbery was the property of Scott, and it was further shown by a representative of the Federal Bureau of Investigation laboratories in Washington that the shell ejected therefrom and left on the ground at the scene of the robbery was fired from Scott’s gun. Rose testified that he did not cover his face at any time during the robbery, which is in direct conflict with the testimony of Andy Rimmer. He further testified that he held the shotgun on Rimmer, but Rimmer said that he did not see a shotgun and that he only
A highway patrolman testified that sometime after the robbery he apprehended an automobile in which Ernest Rose, Robert Ballow, Mack Woods and Walter Scott were riding, and he found Andy Rimmer’s pistol in the car, but the appellant was not present on that occasion. It also appears that Scott’s shotgun was recovered from the home of Ernest Rose by virtue of a search warrant.
It is significant to note that the agent of the Western Union Telegraph Company at Tupelo, with whom was placed the $300 for wiring to W. R. Scott at Columbus, testified about the incident and identified her record of the transaction and, even though the appellant was sitting in the courtroom at the time, she made no effort to identify him as the person who had wired the money, and there is not one word of evidence in the whole record from any witness except Ernest Rose which tends in any way to implicate the appellant in this robbery.
The ticket agent for the Southern Airways at the Tupelo Airport testified with reference to the record of the Southern Airways which shows that a Mr. Pe
The appellant’s wife testified that they have been married over eighteen years and live in Memphis and have one child, a daughter, of the age of fifteen years. She said that the appellant formerly owned a stock car racetrack in Tupelo and later was employed in Columbus; that at the time of this robbery the appellant did not own an automobile and came home every weekend, usually flying by plane. She further said that he flew into Memphis on the night of May 30,1953, which was a Saturday night, and that she and her daughter and a brother-in-law who had an automobile, met him at the airport between 8:00 and 9:00 P.M., and that the appellant spent that night at home and was at home on Sunday morning. She further said that the brother-in-law, whose name was Bob Comstock, and his wife, lived in the same house with them, and were preparing to move to Texas the following week and that she and the appellant decided to try to find a smaller apartment so as to avoid renting the entire house in which they had been living with the Comstocks; and that they spent most of Sunday afternoon looking for a smaller apartment. She further testified that the appellant spent the night with her Sunday night and went down town Monday morning and returned home in the early afternoon of Monday, June 1, 1953. She said that on Monday night she and her husband and daughter got a taxicab and picked up Mr. Taft
T. G. Tinkle, Jr., a nephew of the defendant, age 34, testified that on the morning of June 1, 1953, he carried the appellant to the office of the F.B.I. in the Sterick Building in Memphis for an interview with one of the agents and waited for him and was with him that day until about 6:30 P.M. He further testified that the next morning he carried the appellant back for a further conference with the agent of the Federal Bureau of Investigation and then he waited again and carried him by his home and on to the airport, and that this was on Tuesday, June 2, 1953, and he saw appellant get on the plane and waited until it left. The agent of the Federal Bureau of Investigation with whom the appellant talked on Monday, June 1, and Tuesday, June 2, testified on the former trial
Mr. Neil Conder of Henderson, Tennessee, testified that he has served two terms as sheriff of Chester County and was deputy sheriff for four years. That he is interested in stock car races and that on May 29, 1953, in company with Lloyd Mays, he drove from Henderson, Tennessee, to Indianapolis and watched the stock car races at the Indianapolis Speedway on May 30th and May 31st, 1953, and they left Indianapolis on the morning of June 1, and drove back and arrived in Memphis about 9:00 or 10:00 P.M. that day. He was not acquainted with the appellant but he was interested in having a racing motor fixed up for his personal automobile and Lloyd Mays told him about Pegram’s ability to build racing motors. Conder said that he went to Pegram’s home after his arrival in Memphis to see him but no one was at home and he went back to town and to the sheriff’s office and he and the sheriff in Memphis talked together for quite a while and that he went back to Pegram’s home and met him about midnight on June 1, 1953, and discussed with him the question of getting Pegram to build a motor for him. He said that Pegram told him that he would not be able to do the work but that he told him what to do and where to get everything he needed.
The appellant’s daughter testified that she went to Fairview Junior High School in Memphis in 1953 and that school dismissed either on June 5th or June 6th. She said that Mr. and Mrs. Comstock lived in the house with them and they left, moving to Texas, either on the 2nd or 3rd of the month. She verified the fabt that her father and mother were not certain whether they would keep the house after the Comstocks left and that on the previous Sunday morning she went to church and Sunday School and that that afternoon she and her father and mother went out looking for a house or an apart
The appellant contends that on the testimony in this case he was entitled to a peremptory instruction which was refused by the lower court. In numerous cases we have held that a person may be convicted upon the uncorroborated evidence of an accomplice, but we have also held that where there is strong testimony of an alibi a conviction will not be upheld. Admittedly Bose is a common and habitual criminal and although he entered a plea of guilty to this robbery he has never yet been sentenced. It could well be that he is hoping for clemency in consideration for his turning State’s evidence in this case. There are numerous discrepancies between Bose’s testimony and that of the other witnesses for the State. He said that in this robbery they not only took about 300 cases of beer but also a tow sack full of whiskey. Andy Bimmer, and Bobert Moore who operated the place for Farr but who was not present at the time, both testified that there was no whiskey in the building. Bimmer said that the men who came in the place had their faces covered with hankerchiefs or something similar, and the state witness Thorpe testified to the same effect, but Bose testified that they had nothing over their faces. Bimmer testified that only a pistol was pulled on him. Bose testified that he pointed the shotgun at Bimmer. On the first trial Bose testified that all of the beer was delivered in 100 case lots the same night
In the case of Abele v. State, 138 Miss. 772 (781), 103 So. 370, we quoted with approval from Hunter v. State, 137 Miss. 276, 102 So. 282, as follows: “ ‘Ordinarily a conviction may be had upon the uncorroborated evidence of an accomplice, but, where the accomplice is barely intelligent enough to be a witness, and where his reputation for truth and veracity has been successfully impeached by unimpeached witnesses, and where such evidence is not corroborated sufficiently, and where there is strong testimony of an alibi by numerous witnesses, a conviction on such testimony of such impeached witness will not be upheld.’ ”
In Creed v. State, 179 Miss. 700 (705), 176 So. 596, we said: “The rule is well settled that, while a conviction may be sustained on the uncorroborated testimony of an accomplice, it is equally well settled that such a conviction should not be upheld where such testimony is improbable, self-contradictory, and unreasonable on its face, and especially where it is impeached by unimpeach
We have given careful consideration to the facts of this case and we have reached the conclusion that the evidence for the State, based solely upon the testimony of the witness Rose, the alleged accomplice, is so thoroughly impeached by the appellant’s alibi that the judgment of conviction ought not to stand and that the appellant was entitled to the peremptory instruction which he requested.
Reversed and appellant discharged.
Concurrence in Part
concurring in part and dissenting in part.
There is considerable difference between reversing a conviction and discharging the appellant, and reversing and remandnig for a new trial on the ground that the conviction is against the weight of the evidence. I agree with the controlling opinion in the reversal of this judgment, but in my opinion the defendant is not entitled to a peremptory instruction either in the trial court or this Court. For that reason, I would remand the case for a new trial. There was enough evidence to go to the jury
Concurrence in Part
dissenting.
It is my opinion that the weight of the evidence, the credibility and veracity of the witnesses, and the guilt or innocence of the accused, were all questions to be passed upon by the jurors, who heard the witnesses testify and saw their demeanor on the stand — not questions to be decided by the members of this Court, who had no such opportunity.