J.M. Travis, of Meridian, and J.A. McFarland, Sr., of Bay Springs, for appellants.
The declarations of a conspirator are not admissable against a co-conspirator if not uttered in the presence of the latter, unless made while doing some act in furtherance of the common purpose.
Gillum v. State, 62 Miss. 547 .
See also, Foster v. State, 92 Miss. 257 , 45 So. 859; Simmons v. State, 61 Miss. 243 ; Lynes v. State, 36 Miss. 617 , 2 Mor. St. Cas. 1208; Jones v. State, 189 Miss. 533 , 198 So. 555 .
Confessions or admissions of one codefendant are not admissible in evidence against another, unless they were made in his presence and assented to by him.
Williamson v. State (Ala.), 186 So. 785 ; Dosey v. State (Ala.), 171 So. 729 ; 16 C.J. 689, Sec. 1314.
The testimony of S.T. Gandy did not reveal or show that the yearling alleged to have been sold to the Laurel Packing Company by Harvey Davis was the particular yearling set out in the indictment. It was incumbent upon the State to first show that the yearling stolen was the yearling about which Mr. Lytle was to testify. The State has not shown anywhere in the record that the yearling sold by Harvey Davis was the yearling alleged to have been stolen. Without any proof of identity, the testimony was certainly incompetent as to both appellants. This was highly prejudicial against the appellant, Emmett Sims, for the reason that there is no testimony to show that he was present or had anything to do with the selling of the bull calf to the said Laurel Packing Company, all of this happening out of his presence. This
testimony being offered in the absence of the appellant, Emmett Sims, constitutes reversible error as to him.
Under the law, the jury should have been instructed to the effect that they could find either one of the appellants guilty or both of the appellants guilty, if the testimony and evidence warranted the same, and to the effect that if the evidence was not sufficient against either one of the defendants that it was the duty of the jury to find him not guilty; in other words, the jury were not furnished by the State competent instructions covering the actual law of the case from the testimony and evidence, and we think that the case should be reversed on account of the same.
A felonious taking is necessary to constitute larceny.
Watkins v. State, 60 Miss. 323 ; Alexander v. State, 60 Miss. 953 ; Williams v. State, 63 Miss. 58 .
In grand larceny the taking of the property of sufficient value to constitute the offense must be shown beyond all reasonable doubt. This the State failed to do.
Francis v. State, 87 Miss. 493 , 39 So. 897.
In felony cases the corpus delicti must be proved by evidence aliunde the confessions of accused.
Keithler v. State, 10 Smedes M. (18 Miss.) 192; Upton v. State, 192 Miss. 339 , 6 So.2d 129 ; Heard v. State, 59 Miss. 545 ; Williams v. State, 129 Miss. 469 , 92 So. 584; Miller v. State, 129 Miss. 774 , 93 So. 2; Gross v. State, 191 Miss. 383 , 2 So.2d 818 ; Cooper v. State, 130 Miss. 288 , 94 So. 161; Stringfellow v. State, 26 Miss. 157 ; Pitts v. State, 43 Miss. 472 ; Jenkins v. State, 98 Miss. 717 , 54 So. 158; Stanley v. State, 82 Miss. 498 , 34 So. 360; Rayborn v. State, 115 Miss. 730 , 76 So. 639; Patterson v. State, 127 Miss. 256 , 90 So. 2; Williams v. State, 129 Miss. 469 , 92 So. 584; Garner v. State, 132 Miss. 815 , 96 So. 743; Gipson v. State, 162 Miss. 480 , 139 So. 868 ; Brooks v. State, 178 Miss. 575 , 173 So. 409 ; Richardson v. State, 196 Miss. 560 , 17 So.2d 799 .
The State wholly failed to prove venue, which we contend is fatal error.
Greek L. Rice, Attorney General, by Geo. H. Ethridge,
Assistant Attorney General, for appellee.
The testimony was sufficient to show that the crime of larceny had been committed in the First Judicial District of Jasper County. The conversation Sims had with the two Gandy brothers shows that Sims was guilty and Davis confessed his guilt to the sheriff. The record clearly shows that both of them had, by confession, stated that they got the cattle out of the Gandy pasture which, the record shows, was located in said First Judicial District of Jasper County, Mississippi. The defendant did not introduce any proof on any propostion. It was wholly competent to admit the testimony of M.L. Gandy and S.T. Gandy and also the testimony of Lytle and others; all of which testimony was sufficient, in the absence of a dispute, to sustain the verdict of the jury in the case. The trial judge limited the statement of each of the confessions to the particular defendant doing the confessing. The circumstances disclosed by Ratcliff, the testimony of the Gandy brothers about missing the yearling from the pasture, and the testimony of Lytle that he bought a yearling of that description from Davis and paid him for it in the sum of $19.55, less a commission to the Laurel Stock Yards, amply makes the guilt of each of the defendants manifest. The record does not show a motion for a severance; and the instructions given to the jury by the court are ample to sustain a conviction.
The only question of any importance in this case is with reference to the admission of the statements by the defendants on the preliminary trial in the justice of the peace court, wherein they pled guilty. The circuit judge ruled out the evidence, when it was offered, as to the plea of guilty in the court below but admitted the statement that they had each pled guilty. The judge and counsel for appellants seem to have proceeded on the theory that a plea of guilty could not be offered in evidence where the plea of guilty was made either in a justice of the
peace trial or in an investigation by the justice of the peace as a conservator of the peace to determine whether or not there was probable evidence of the commissions of a felony to be investigated by the grand jury. The record does not clearly show whether it was tried in the justice of the peace court or whether the justice of the peace investigated this matter as for the commission of a felony in the capacity of conservator of the peace. However, as the prosecution proceeded on an indictment and not on affidavit, it must be presumed that it was an investigation by the justice of the peace as conservator of the peace on the probability that a felony had been committed.
A plea of guilty on another trial, either on appeal or from a committing court, is admissible as evidence.
Jenkins v. State, 98 Miss. 717 , 54 So. 158; Heard v. State, 59 Miss. 545 ; Johnson v. State, 196 Miss. 402 , 17 So.2d 446 ; Elliott v. State, 185 Miss. 381 , 189 So. 796 ; Encyclopedia of Evidence, "Judicial Confessions," p. 334.
The instructions taken together, as they must be, as one announcement flowing from the court to the jury, there is no error in this record.
Argued orally by J.M. Travis, for appellants, and by Geo. H. Ethridge, for appellee.