Tucker v. State , 103 Miss. 117 ( 1912 )

Cook, J.,

delivered the opinion of the court.

Appellant was convicted by the circuit court of Perry county upon an indictment charging him with burglary. There are numerous assignments of error. The burglary of the storehouse of the Mahned Lumber Company is clearly established; but it is contended that the trial court erred in permitting witnesses to testify about a certain pistol, which the witnesses said was locked up-in a safe kept in the house at the time of the burglary,, because it was shown that the pistol in question was not the property of the owner of the house. The indictment, in the ordinary form, charged the breaking and entering with intent to steal the goods, etc., kept in said storehouse, and further, that appellant did steal one pistol found in said house, the property of the Mahned Lumber Company.

It is the position of appellant that it was a serious error to allow witnesses to testify about the pistol, because the pistol was not the pistol which it is alleged was the property of the lumber company. This proof, no doubt, was serious to the defendant; but we think no error was committed by the court in allowing the proof. This pistol was traced into the hands of appellant; and, it being proven that it was taken from the house at the time of the burglary, it is manifest that its possession by the defendant tended to prove that he was the one who ■ committed the burglary. He could not be convicted of the larceny of a pistol belonging to the lumber company by evidence showing that he stole a pistol belonging to some other person; but evidence of the larceny of one thing may be intimately related to the larceny of quite another thing.

The court allowed the witnesses to testify that at the time of the burglary of the house a certain iron safe, which stood in the house, was blown open with dynamite, and the money therein was stolen. ‘This is assigned as error, for the reason that the indictment says nothing about the blowing open of the safe. This is a very narrow view of the scope and purpose of trials in courts of justice. The breaking of the house, and all things done in the house, was a part of the res gestae.

Without detailing the many objections entered by. appellant’s counsel during the trial, we are of opinion that many of the objections are entirely without merit, some of them are frivolous, and all are upon immaterial matters, which could in no way have influenced a jury. In fact, counsel seemed to be endeavoring to play on the safe side by objecting to everything; but, to be entirely fair, they permitted witnesses to state their names, without objection.

The court below would not permit evidence to go to. the jury as a predicate for contradicting a witness for the state by statements made by the witness to the grand jury investigating' this case. If the questions asked the witness were material or competent, there is no question that the court erred in its ruling. The trial court was of opinion that a member of this grand jury could not be interrogated concerning testimony given to the grand jury. This was a rather curious error; but we find that learned and industrious counsel in their briefs have overlooked the statute, but have cited numerous authorities to support their contention that the ruling of the court was wrong, when section. 2710 of thé Code of 1906 settles the question, and we may therefore excuse the trial judge, harassed as he was, for failing to recall the statute.

We have carefully examined the questions propounded to the witnes as a predicate for contradiction,, and if he had been permitted to answer the questions, and if a member, or members, of the grand jury had been called to contradict his answers, the testimony in contradiction would not have been competent, because the questions propounded erroneously assumed that the witness had testified differently from what the questions assumed he testified to while testifying béfore the grand jury.

Again, it is complained that the court would not permit a member of the grand jury to answer certain questions propounded to him to contradict a witness for the state. The trial court gave the wrong reason for its tulings that the juror could not be permitted to disclose the secrets of the grand jury; but there is nothing in the record from which we can assume that appellant was injured, because it does not appear what it was counsel expected to prove by the witness.

The jury believed the evidence of the state, and this abundantly proved appellant’s guilt; indeed, it is difficult to say that the jury could have been justified, if they had rendered a different verdict. .

Affirmed.