Wiley v. State, 91 So. 906

Wiley v. State

91 So. 906 | Miss. | 1922

Anderson, J.,

delivered the opinion of the court.

Appellant, Rich Wiley, was indicted and convicted in the circuit court of Alcorn county on a charge of burglarizing the storehouse of C. A. Turner & Son in the city of Corinth and stealing therefrom one pair of shoes, from which judgment he prosecutes this appeal.

The storehouse of C. A. Turner & Son, merchants, in the city of Corinth, was burglarized on the night of February 10, 1921, and there was stolen therefrom six pairs of W. L. Douglas shoes. The shoes which were stolen had been left, when the store was closed on the evening of February 10, 1921, setting just inside the plate glass window of the store. The empty boxes out of which the shoes in the window had been taken were left on the shelf, and on each of such boxes there was written W to indicate that the shoes were in the show window. These empty boxes, in addition to having the letter W marked thereon, had marked on each *203of them the size of the shoes which it had contained, and the cost mark thereof. One of the parts of shoes so left in the store window and stolen was a russet shoe made by W. L. Douglas, size No. 7. The pair of shoes found in possession of appellant corresponded exactly as to description and size with this missing pair. About .three weeks after the commission of the crime appellant was found in possession of a pair of YV. L. Douglas No. 7 russet shoes. C. A. Turner, one of the owners of the mercantile business of C. A. Turner & Hon, and J. W. Paden, a salesmen in their store, testified to the facts above stated, and further that said C. A. Turner & Son alone, of the merchants in that vicinity, handled the W. L. Douglas shoes, and that' the pair found in possession of appellant corresponded exactly in all respects with one of the stolen pairs.

Appellant testified that about six o’clock on the morning of February 11, 1921 (the morning after the commission of the crime), he bought the pair of shoes in question from Shell I-laley, another negro, paying him therefor four gallons of molasses. And Shell Haley testified on behalf of appellant to the same effect, and stated further that he acquired the shoes in this manner: That he was night watchman for the Berkheiser Lumber Company; that on the night of the 10th of February, 1921 (the night of the crime), he was engaged as usual in watching the plant of his employer, located in the city of Corinth, when a Avhite man came up to the engine to warm himself (it being cold), and while standing there warming that he, the witness, called to him to halt; thereupon the white man, "yvho had an old shirt thrown off his shoulder with something in it, turned and ran, and when he did so the witness shot at him twice, and he dropped three pairs of shoes out of the old shirt, which the witness picked up, and about six o’clock the next morning sold appellant the pair of shoes the latter was found in possession of, being a pair of W. L. Douglas russet No. .7 shoes. Appellant and the witness Shell Haley both admitted on cross-examination that before the trial, when approached by the officers and questioned as *204to their possession of the shoes, they accounted for their possession in an entirely different way from that to which they testified. In other words, both of them admitted that their statements out of court explaining their possession of the shoes ivere directly eontrodictory of their evidence in court with reference to such possession.

It is contended on behalf of appellant that the evidence is insufficient to identify the shoes found in the possession of the appellant as the shoes stolen from the store of C. A. Turner & Son; and the case of Jackson v. State, 118 Miss. 602, 79 South. 809, is relied on with much confidence as sustaining that contention. The Jackson Case was not as strong a case for the state as this. There a store was burglarized and some groceries (the same character of groceries sold by all grocery stores) stolen therefrom. The defendant was found in possession of some groceries that corresponded in description with those stolen. When arrested the defendant gave a reasonable explanation of his possession. He stated that he had 'bought the groceries from some boys, whose names lie gave, who had purchased them to use on a camp fishing trip, and who had for some reason abandoned the trip. There was nothing whatever in the way of marks or other means identifying the groceries found in possession of defendant as being the same groceries as had been stolen'. The court held that the testimony ivas insufficient to sustain the conviction, and in the opinion laid stress on the fact that the record failed to show that the same character of goods were not sold by numerous other merchants in the community.

In the present mise the evidence shows that C. A. Turner & Son were the only merchants in the vicinity where the crime was committed who handled W. L: Douglas shoes. And in addition appellant’s evidence strengthened the identification of the shoes as being those stolen, in this, that he and the witness Shell Haley, from whom he claims to have bought the shoes, both testified that appellant bought them from said Haley at about six o’clock on the morning following the night of the crime; and in addition *205the witness Haley testified, as stated above, that on the night of the burglary some unknown white man came to the plant where he was watching and when he called him to halt and shot at him, he dropped three pairs of shoes, one of which was the pair sold by him to, and found in the possession of, the appellant: We therefore have here Only one merchant in the community handling .the character of goods stolen; and on the very night of the crime appellant acquired possession of the stolen shoes through Shell Haley under suspicious circumstances, who claimed to have gotten them from some unknown person, whose possession, to say the least of it, had the appearance of being suspicious. We conclude that the jury had a right from the facts and circumstances in evidence to disbelieve the entire evidence of the appellant and his witness Shell Halev as to how- they came into possession of the shoes. On the other hand, they had a right to believe that part of their evidence to the effect that they acquired possession of the shoes a few hours after the' storehouse of C. A. Turner & Son had been burglarized. And, so believing, the jury were justified in finding, as they must have done, that the explanation of appellant as to how- he came into possession of the shoes was unreasonable, and that, therefore, under all the evidence in the case, anpellant v-as guilty of the burglary and larceny. .We think the evidence Avas sufficient to go to the jury on the question of the identification of the shoes.

Appellant assigns as error by the trial court, the giving of an instruction for the state whereby the jurv were charged that possession of stolen goods AA-hich had been taken from a burglarized building not satisfactorily .explained Avas prima-facie evidence of both the burglary and the larceny. The criticism of the charge is that it told the jury that the possession alone .by the appellant of the stolen goods, unexplained. Avas prima-facie evidence of the guilt of the appellant of both the burglary and larcewv charged. There Avas left out of the instruction the quali-*206cation that the possession must have been recent after the crime. The criticism of this instruction is well founded. However, the giving of it was entirely harmless to the appellant under the facts of this case, for the reason that in his own testimony he admitted that his possession of the shoes was a recent possession; that only a few hours after the store .was burglarized and the shoes stolen therefrom' he bought the pair in question from Shell Haley. Recent possession of the .stolen goods having been admitted by the appellant, there was no longer any issue before the jury as to that question.

Appellant assigns as error the refusal by the court to instruct the'jury that, the burden was upon the state to show beyond a reasonable doubt and to a moral certainty that the appellant did not buy the shoes in question from Shell Haley, and, unless the state had so proven, they should find the appellant not guilty. The court gave substantially the same instruction for the appellant as that refused; for one of the instructions given for appellant told the jury that, even though they believed from the evidence that the shoes found in the possession of appellant were stolen out of the store of 0. A. Turner & Son, yet, if they believed that appellant bought the shoes from Shell Haley, then, they should find him not guilty. And furthermore in other instructions the jury were told in varying phraseology that they could not convict the defendant unless his guilt was shown beyond a reasonable doubt. We are. of opinion, therefore, that the court committed no harmful error in refusing said instruction.

The action of the court in refusing the two-theory instruction requested by appellant is assigned as error. This action of the trial court was not error, as held in Runnels v. State, 96 Miss. 92, 50 South. 499; Roux v. City of Gulfport, 97 Miss. 559, 52 South. 485; Saucier v. State, 102 Miss. 647, 59 South. 858, Ann. Cas. 1915A, 1044.

Affirmed.