Wheeler v. State

76 Miss. 265 | Miss. | 1898

Whitfield, J.,

delivered the opinion of the court.

The second instruction given by the court for the state is fatally erroneous. There is no evidence iii the record whatever of any such agreement as is set out in the instruction.

The court also erred in permitting testimony, under this indictment, charging, in a single count, the two defendants with a joint receiving-showing a receiving at one time by Charles separate and apart from John, and without John’s knowledge, so far as shown by the record, and'a receiving by John separate and apart from Charles, and without the knowledge of Charles — to remain before the jury, where it affected both defendants prejudicially, without compelling the district attorney to elect which one he would proceed against. If it was to be used against one only, the court should have compelled the ■district attorney to elect as to which one, and exclude as to the ■other. Says Mr. Bishop, Criminal Procedure, volume 2, section 988: í£If a single count charges, not under a separaliter, two persons with receiving stolen goods, one may be convicted and the other acquitted, but not both convicted, unless the receiving was joint, and when, on such count, evidence has been introduced of a receiving by one, if the proof tendered as to the other relates to a different transaction, counsel should object, and the court will either exclude it or compel the prosecutor to elect on which transaction, and against which defendant, he will ask for a verdict, for one, not both, may be convicted. ” To same effect, 2 Roscoe’s Criminal Evidence, 1137, 1138; 20 Am. & Eng. Ene. L., 449 (3); 1 McLain’s Criminal Law, section 722; 2 Russell on Crimes (international edition), 426; and see Ball v. State, 67 Miss., 362.

There is proof here of a joint receiving, but there are two instances of proof of a separate receiving by each, without, the knowledge of the other. This last should have been excluded, if conviction was to be sought of both under this indictment; and if of one, then limited to that one. In England this difficulty is obviated by 24 & 25 Viet., c. 96, sec. 94, which provides that ‘ ‘ if upon the trial of any two or more persons indicted for jointly receiving any property, it shall be proved that one or more of such persons separately received any part, or parts of such property, it shall be lawful for the jury to-convict upon such indictment such of the said persons as shall be proved to have received any part or parts of such property, ’ and sections 92 and 93 provide that they be tried together,, which shows that this could not have been done till the statute was enacted, as is stated in 2 Russell on Crimes (international edition), note (g), p. 419. Such a statute would be a wise enactment here, but this is a matter addressed to the legislature. We deal with the law as it is.

We deem it proper to remark that the proof ought clearly to-show the value of the goods received to be at least twenty-five dollars, or the defendants should be given the benefit of § 1441 of the code of 1892.

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