Brown v. State

The general rule that evidence of another offense is not admissible against the accused should be strictly enforced — should never be departed from, except under conditions which clearly come within one of the exceptions to the rule. 16 C.J., pp. 587, 588, sec. 1133; Willoughby v. State, 154 Miss. 653,122 So. 757, 63 A.L.R. 1319; Craft v. State, 155 Miss. 465,124 So. 488; Baygents v. State, 144 Miss. 442, 110 So. 114; Dabney v. State, 82 Miss. 252, 33 So. 973.

One of the exceptions is for the purpose of showing the identity of the criminal agent, where the corpus delicti has been proven. There was no trouble about that in this case; it was wholly unnecessary to introduce any evidence of the identity of the criminal agent, in view of the fact that it had been amply proven and without contradiction not only by appellant's confession but by Gaines, a witness for the state. In addition to that, appellant, as a witness in his own behalf, admitted that he was the person who robbed Fiume. In such a case, I am unable to understand how evidence of the subsequent crime was admissible. The subsequent crime proven was a grave one — shooting with intent to kill Gaines — which took place after the robbery was entirely over and the robber and the person robbed had separated and were out of the presence of each other.

Rosetto v. City of Bay St. Louis, 97 Miss. 409, 52 So. 785, has no application; in that case the other crime occurred while the defendant's house was being raided as a gambling house. The charge against him was for keeping a gambling house. The evidence tended to show that at the time of the raid gambling was actually going on. While the raid was being made the defendant pointed his gun at the officers; this was the separate crime proven by the state. The court held that it was admissible not to show the guilt of the defendant of that offense, but as throwing light on the question of his guilt of the crime with which he was charged. The two crimes were being committed at the same time. That is not true here.

The statute under which the appellant was convicted, chapter 328, Laws of 1932, is in this language:

"Be it enacted by the Legislature of the state of Mississippi, That every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery and, upon conviction, shall be punished by death if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at death, the court shall fix the penalty at imprisonment in the penitentiary for any term not less than three years."

It will be observed that the fixing of the death penalty is left to the jury. Appellant is a negro, the man he robbed is a white man. The fact that appellant had shot another white man, Gaines, breaking his leg, for which he had been tried and sentenced to the penitentiary for ten years, is bound to have been a potent influence with the jury in fixing the penalty. The statute is new in this state. Section 28 of the Bill of Rights provides that "cruel or unusual punishment shall not be inflicted, nor excessive fines be imposed." The constitutionality of the statute is not raised. I express no opinion on the question, however, it may be a serious question.