Dedeaux v. State , 125 Miss. 326 ( 1921 )

W. H. Cook, J.,

delivered the opinion of the court.

Appellant, Elmer Dedeaux, together wdth his two brothers, was indicted for the larceny of five sheep, the property of L. W. Ladnier. There was a severance, and upon the trial of appellant he ivas convicted and sentenced to imprisonment in the penitentiary for tvro years, and from this conviction and sentence this appeal was prosecuted.

For a reversal of this cause appellant relies principally upon three grounds, and the facts necessary to an understanding of the questions presented for decision are substantially as follows: The codefendants, Ellis and Elvis Dedeaux, resided witli tbeir father Zeno Dedeaux, while appellant, who was married, resided about one-half mile therefrom. There was also living in the home of Zeno Dedeaux his grandson, Yardaman Dedeaux, a lad about seventeen years of age, and the conviction of appellant rests largely upon the testimony of this boy. Vardaman Dedeaux, who was also the nephew of L. W. Ladnier, the owner of the sheep alleged to have been stolen, left the home of his grandfather, Dedeaux, and went to reside with his grandmother Ladnier. Thereafter he furnished his uncle, L. W. Ladnier, certain information which caused Ladnier to secure a search warrant and go to the home of Zeno Dedeaux in search of certain sheep which he had lost. There he found a large number of sheep buried in two pits in the rear of Zeno Dedeaux’s barn, and he was able to identify five of the sheep found in the smaller hole as being his property, and upon this discovery this indictment is predicated.

Yardaman Dedeaux testified that some time in June, 1920, appellant and the two codefendants left the home of Zeno Dedeaux late in the afternoon and went into the •woods and came back after dark driving a number of sheep; that they called him from the house to assist them in getting the sheep into an inclosure; that he opened the gate and helped to pen them, knowing at the time that they were going to shear and kill the sheep; that he assisted in shearing one of them; that he watched them kill and bury the sheep; that he observed the marks of some of them and they were in the mark of L. W. Ladnier.

The first assignment of error which is pressed here is based upon the refusal of an instruction requested by defendant, the instruction being as follows:

“The court instructs the jury for the defendant that they are the sole judges of the credibility of the witnesses and the weight of the evidence, and that the testimony of Yardaman. Dedeaux in this case is what is known in law as the testimony of an accomplice, and that, in weighing his testimony, they should weigh it with great care, caution, and suspicion, and unless his testimony, weighed with great care, caution, and suspicion, in connection with all the other evidence in the case, convinces the jury beyond every reasonable doubt that the defendant stole the sheep, or participated in the stealing, as alleged in the indictment, then they shall find him not guilty.”

It is contended on behalf of the state that the refusal of this instruction was proper for the reason that under the evidence the witness was not an accomplice. If there is a conflict in the testimony as to the acts, conduct, or. participation of the witness in the crime alleged, it is then a question for the jury, under proper instructions, as to whether or not the witness was an accomplice, but, where there is no conflict in the testimony as to the acts and conduct of the witness, it is then a question of law for the court to say whether or not the acts, conduct, and participation of the witness in the alleged crime make him in fact an accomplice. There is no conflict in the testimony in this case as to the acts and conduct of the witness, and it clearly shows that he was present, aiding, assisting, abetting, and encouraging the commission of the crime, and we think, under the facts in this record, the witness was an accomplice.

While a conviction may be had on the uncorroborated testimony of an accomplice, the courts of this state are committed to the doctrine that it is proper for the court to instruct the jury that the testimony of an accomplice is to be weighed with caution (White v. State, 52 Miss. 216; Fitzcox v. State, 52 Miss. 923; Green v. State, 55 Miss. 454; Cheatham v. State, 67 Miss. 335, 7 So. 204, 19 Am. St. Rep. 310; Wilson v. State, 71 Miss. 880, 36 So. 304; Oshorne v. State, 99 Miss. 410, 55 So. 52), and upon a new trial some cautionary instruction should be granted. We do not hold, however, that an instruction in the precise language of the one requested should be given, but, if the jury is duly cautioned, the requirements of this rule are satisfied. In Wilson v. State, supra, this matter is fully discussed, and Chief Justice Campbell there used language, which we quote to approve as announcing the correct view, the language there used being as follows:

“The court was not bound to pile up words suggestive of a desire for the jury to dismiss as unworthy of consideration the testimony of the accomplice. Having cautioned the jury as to the suspicious source of such testimony, it was proper to leave the jury to deal with it according to its effects on the minds of the jurors, who are not likely to accept too readily such testimony. The rule is for the .presiding judge to inform the jury that the testimony o.f an accomplice is to be received and considered with caution, as from a polluted and suspicious source, but it must, in large measure, be left to the judge to choose the language in Avhich this caution shall be given. There is no uniform rule. Cases vary with circumstances. In some cases stronger words of caution might be more appropriate than in others.”

The next assignment relied upon brings up for review the action of the court in granting the state an instruction in the language following :

“The court instructs the jury for the state that, if they believe from the evidence beyond a reasonable doubt that the defendant Elmer Dedeaux, in company with others, in Stone county* Miss., on or about the 5th day of June, or on any date prior to the finding of the indictment in this case, drove off the range, penned, and killed five sheep belonging to L. W. Ladnier and described in the indictment, with the intent to deprive the owner thereof, and that said sheep were worth twenty-five dollars or more, you should find the defendant guilty as charged in the indictment.”

Section 1251, Code of 1906 (Hemingway’s Code, section 981), under which this indictment was drawn, is in part as follows:

“Every person who shall be convicted of taking and Carrying away, feloniously, the personal property of another of the value of twenty-five dollars or more, shall be guilty of grand larceny,” etc.

The word “felonious” as used in this statute is not merely descriptive of the grade of the offense, but it is an essential ingredient of the crime of larceny, and, since this instruction omitted this essential element of the crime charged, it is erroneous. It is well settled in this state that to constitute larceny the taking need not be lucfi causa, but it is equally well settled that there must be a felonious or fraudulent taking of the property, and, unless the taking be felonious or fraudulent with the intent to deprive- the owner of the property, it is insufficient to constitute the crime of larceny. Hamilton v. State, 35 Miss. 214; Watkins v. State, 60 Miss. 323; Warden v. State, 60 Miss. 638; Delk v. State, 64 Miss. 77, 1 So. 9, 60 Am. Rep. 46; Akroyd v. State, 107 Miss. 51, 64 So. 936.

The third and fourth assignments are based upon the alleged improper admission of testimony. The state was properly permitted to show that the five sheep described in the indictment were found buried in a pit near the barn of Zeno Dedeaux, but, over the repeated objections of defendant, witnesses for the state were permitted to testify about other sheep which were found buried in another and larger pit nearby. Appellant was indicted for stealing-five sheep of a particular mark, and the place where the carcasses of these sheep were found was clearly and definitely fixed by the evidence. There was no evidence to connect appellant with the theft of any other sheep; in fact, upon his tidal on this indictment such evidence would have been inadmissible, and it was highly prejudicial to appellant to permit evidence to go to the jury which indicated that there had likewise been many other sheep stolen. It is true that, after the state had been permitted to fully develop the facts that a large number of sheep had been found in this other and larger pit, the court finally sustained a motion to exclude this evidence, and thereupon instructed the jury not to consider any of this testimony, and, if this ruling had been adhered to, it might have cured the error. However, after the court had announced this ruling, counsel for the state persisted in propounding questions which elicited answers which violated this ruling of the court, and some of these answers were permitted to go to the jury over the objection of appellant.

Again, over the repeated objections of appellant, the state was permitted to show that, several months prior to the time the sheep were-found in this pit, L. W. Ladnier owned a large number of sheep which ranged in the territory between the home of Zeno Dedeaux and Wolf river, Avhile at the time of the trial, which was in July, 1920, he only owned two. This testimony was clearly incompetent, and the admission of this irrelevant and incompetent testimony was necessarily prejudicial to the rights of appellant.

For the errors herein indicated, this cause is reversed and remanded.

Reversed and remanded.