Crosby v. State, 175 So. 180 (Miss. 1937). · Go Syfert
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Crosby v. State, 175 So. 180 (Miss. 1937). Cases Citing This Book View Copy Cite
44 citation events (2 in the last 25 years) across 8 distinct courts.
Strongest positive: Gangl v. State (miss, 1989-02-09)
Treatment trajectory · 1938 → 2026 · click a year to view as-of
1938 1982 2026
Top citers, strongest first. 4 distinct citers. How cited ↗
cited Cited as authority (rule) Gangl v. State
Miss. · 1989 · confidence medium
Crosby v. State, 179 Miss. 149, 162 , 175 So. 180, 182 (Miss. 1937).
discussed Cited as authority (rule) Staten v. State
Fla. · 1988 · confidence medium
App. 59 , 407 A.2d 756, 759 (1979); Commonwealth v. Berryman, 359 Mass. 127, 129 , 268 N.E.2d 354, 356 (1971); People v. Hartford, 159 Mich. App. 295, 299-300 , 406 N.W.2d 276, 278 (1987); Crosby v. State, 179 Miss. 149, 159-60 , 175 So. 180, 181 (1937); State v. Key, 411 S.W.2d 100, 103 (Mo. 1967); People v. Chadwick, 7 Utah 134, 138 , 25 P. 737 , 738 (1891).
discussed Cited "see, e.g." Hye v. State (2×)
Miss. · 2015 · signal: see also · confidence low
See also Crosby v. State, 175 So. 180, 181 , 179 Miss. 149, 162 (1937) (This Court reversed and remanded Crosby’s accessory-after-the-fact conviction where the lower court “refused to grant the appellant an instruction to the effect that the principal in the commission of a felony cannot thereafter become an accessory after the fact, and, if [the jury] believed from the evidence that the appellant himself murdered Lizzie Marsh, or assisted Williams so to do, he could not be convicted of being an accessory thereto after the fact.”) In its certiora-ri brief to this Court, the State argues …
discussed Cited "see, e.g." Rudolph v. State (2×)
Ala. Ct. App. · 1959 · signal: see also · confidence low
See also Crosby v. State, 179 Miss. 149 , 175 So. 180 .
Retrieving the full opinion text from the archive…
Crosby
v.
State.
Mississippi Supreme Court.
Jun 14, 1937.
175 So. 180
1937 Miss. LEXIS 27
Nate S. Williamson, Jesse H. Graham and J.A. Riddell, all of Meridian, for appellant. Surely there could be no good purpose in introducing evidence as to anything that transpired prior to the killing of Lizzie Marsh in the prosecution of the appellant for being an accessory after the killing except to establish that she had actually been killed and murdered by John Wesley Williams. So when the defendant, by his counsel, admitted in the very beginning that Lizzie Marsh was killed and murdered by John Wesley Williams in Lauderdale County, Mississippi, on the date referred to in the indictment, then it was certainly immaterial, incompetent, irrelevant and highly prejudicial to introduce the character of evidence that was introduced over the objection of appellant as to what transpired between her and appellant and the murderer John Wesley Williams and other people with reference to the pistol about which the witnesses testified, and certain cartridges and gambling games and plans for a big negro social for the purpose of selling whiskey, love affairs between the deceased and the admitted murderer of her, and her illicit relations with him and a negro jail bird, exchanging drinks of liquor, trying to pawn the pistol, trying to leave the pistol with third parties, threats made by John Wesley Williams, the admitted murderer, against the deceased, and exhibitions of the pistol in connection therewith at a time when the appellant was not present, etc. Counsel for appellant anticipating that the prosecuting attorney would proceed to actually try the appellant again for murder in an effort to convict him of the crime of accessory after the fact, made the above mentioned admissions so that it would not be necessary at all to go into any such testimony in order to lay a predicate for the introduction of evidence as to what transpired after the murder of said Lizzie Marsh. If the evidence as to what transpired prior to the killing of this woman be stricken out or ignored as if it were not in the record at all, except the naked fact that she was killed and murdered by John Wesley Williams who was duly tried and convicted of murder, then the evidence that transpired after the killing would be so flimsy that the prosecution could not hope for it to receive much consideration at the hands of a jury or a court. The prosecution evidently knew this and insisted upon doing what it did, with the permission of the trial. Harper v. State, 35 So. 572. This court will please bear in mind that most of the objections and more especially the objections to the testimony as to what transpired prior to the killing of Lizzie Marsh was objected to by appellant and at various times he requested that his objections be considered as continuing objections to any and all testimony of like or similar character at any time during the trial and the court expressly recognized the objections as continuing objections but overruled them. Broach v. W. Shoe Co., 21 So. 300. All through this record from beginning to end will be found remarks by witnesses made concerning statements and confessions of the defendant, John Wesley Williams, which were made out of the presence of the appellant. In joint indictment for murder, threats made out of presence of accused by co-conspirators before conspiracy is established are inadmissible against accused. Rich v. State, 86 So. 770, 124 Miss. 272 ; Manning v. State, 129 Miss. 179 , 91 So. 902. We think that the trial court should not have permitted the testimony taken of the appellant on the trial for murder to have been read in evidence over the objection of defense counsel in the State's case in chief. Steele v. State, 24 So. 910. The statements made by and activities of John Wesley Williams after he and Crosby were arrested were not competent because under the admissions of the appellant there was not any issue to be tried as to whether or not he killed and murdered Lizzie Marsh and it was not admissible in any event against the appellant Crosby on the trial of being an accessory after the fact of the same murder. Lynes v. State, 36 Miss. 617 ; Osborne v. State, 55 So. 52. Evidence as to what transpired prior to the death of Lizzie Marsh was incompetent as against the appellant Crosby while being charged as an accessory after the fact to her murder for this further reason: it was impossible for appellant Crosby to do or say anything prior to her death which would warrant the jury in finding a verdict of guilty of accessory after the fact of her murder. Harell v. State, 39 Miss. 702 ; Harper v. State, 35 So. 572. Evidence of statements made or testimony rendered by Johnie Crosby introduced by the State in its case in chief was inadmissible because the corpus delicti of the crime charged in the indictment on which he was being tried, that is of accessory after the fact, had not been proven, in fact was never proven separate and apart from statements and admissions made by and testimony rendered by the appellant, Johnie Crosby, and we think that his statements were such as to exonerate him and show his innocence rather than his guilt, and that the corpus delicti of the crime charged in the indictment has therefore never been proven even with his admissions. Rayborn v. State, 76 So. 639. If the evidence of Police Detective Harbour, who was thoroughly impeached, was admissible and was such as the jury had a right to believe, the appellant was entitled to the requested instruction reading as follows: \The court instructs the jury that if you believe from the evidence that John Wesley Williams and Johnie Crosby both killed and murdered Lizzie Marsh
Smith.
you should find the defendant not guilty.\"
[*158] Smith, C. J.,

delivered the opinion of the court.

Appellant was convicted of being an accessory after the fact to the murder of Lizzie Marsh. He was jointly indicted with John Wesley Williams for this murder. Williams was convicted, and has since died. The appellant was also convicted, but on appeal to this court his conviction was set aside, for the reason that it was-not supported by the evidence, and he was ordered dis[*159] charged. 168 So. 660. Thereafter he was indicted under section 770, Code 1930, and charged with having aided or assisted John Wesley Williams, knowing that he had murdered Lizzie Marsh, with intent to enable him to escape and avoid arrest.

After the jury was impaneled, and before any evidence was introduced, the appellant’s counsel formally advised the court and the district attorney that the' appellant admitted that John Wesley Williams murdered Lizzie Marsh, and was tried and convicted therefor. The district attorney declined 'to accept this admission, and over the appellant’s objection was permitted to prove the murder of Lizzie Marsh by Williams, without reference to this admission. Had this admission been accepted and acted on, the trial would have been shortened, and the court’s time thereby conserved. But we cannot say that the court erred in permitting the district attorney to prove the murder as an original proposition. There seems to be no absolute rule on this subject. Its solution rests in the sound judicial discretion of the trial court, which will not be interfered with unless manifestly abused. 5 Wigmore on ’Evidence (2 Ed.), section 2591.

0(n the trial of this case the State, as the Attorney-General frankly admits, introduced practically all of the evidence introduced by it when the appellant was tried for the murder and also proved on confession by the appellant, not there given in evidence, that the murder was committed by him and Williams jointly.

The crime of accessory after the fact is thus defined by section 770, Code 1930: “Every person who shall be convicted of having concealed, received, or relieved any felon, or having aided or assisted any felon, knowing that such person had committed a felony, with intent to enable such felon to escape or to avoid arrest, trial, conviction or punishment, after the commission of such felony, on conviction thereof,” etc.

This statute presupposes, as the common law is, that[*160] a person assisting one wlio has committed a felony to avoid being arrested therefor was not himself a principal in the commission of the felony; for one cannot be such and also an accessory thereto after the fact. 1 Brill, Cyc. Crim. Law, section 244; 1 Bishop, Crim. Law (8 Ed.), section 663; Reg. v. Hilton, 8 Cox C. C. 87; Howard v. State, 9 Okl. Cr. 337, 131 P. 1100; People v. Chadwick, 7 Utah, 134, 25 P. 737. Contra at common law as to an accessory before the fact: Bishop op. cit. section 664; 2 Hawk. P. C., Curwood Ed., c. 29, section 1; but see section 769, Code 1930. Assistance rendered the principal before the felony is completed to avoid arrest therefor makes the one rendering the assistance an accessory before and not after the fact. Harrel v. State, 39 Miss. 702, 80 Am. Dec. 95, 2 Morris’ St. Cases, 1472.

In order to convict the appellant, the State must prove (1) that Williams feloniously killed Lizzie Marsh, and (2) thereafter the appellant, with knowledge thereof, committed specific acts with intent thereby to enable Williams to escape, or to avoid arrest, trial, conviction, or punishment. In so doing it may not introduce evidence disclosing that the appellant was himself a principal in the felonious killing of Lizzie Marsh. Quite a bit of the State’s evidence violated this rule, e. g., two separate confessions of the appellant that he participated jointly with Williams in the killing of Lizzie Marsh. It would serve no good purpose to point, out the other such evidence, and so to do would needlessly prolong this opinion. The foregoing will constitute a sufficient guide for the court below on the return of the case thereto.

The State’s evidence discloses three acts of the appellant by which it is claimed he attempted to assist Williams in avoiding arrest: (1) He concealed the pistol with which Williams shot Lizzie Marsh, knowing that it had been so used; (2) he destroyed the overalls worn by Williams when he committed the crime; and[*161] (3) when questioned by police officers shortly after the commission of the crime, he falsely denied having any knowledge thereof.

The concealment of the pistol was proven by evidence that the appellant before the homicide procured the pistol with which Williams killed Lizzie Marsh, without the knowledge or consent of its owner, a relative of the appellant, and gave it to Williams; and, with knowledge that Williams had killed Lizzie Marsh therewith, surreptitiously returned it to the place from where he had procured it. This evidence hy itself alone does not disclose that when the appellant gave the pistol to Williams he knew that Williams intended to kill Lizzie Marsh therewith, and was, therefore, competent for the reason that it has some bearing on the appellant’s knowledge that Williams had killed Lizzie Marsh with the pistol. Other evidence offered by the State which tends to disclose that when the appellant gave the pistol to Williams he knew that Williams intended to kill Lizzie Marsh with it should not have been admitted. The evidence as to the concealment of the pistol by the appellant was sufficient to justify the admission of a confession by the appellant, offered by the State, that he concealed the pistol. Consequently, the court committed no error in admitting this confession.

Nio error appears in the admission of evidence as to the burning by the appellant of the overalls, which from the evidence the jury were warranted in believing .were worn by Williams when he killed Lizzie Marsh.

The evidence that the appellant, shortly after the killing of Lizzie Marsh, when questioned by police officers relative thereto, at first denied any' knowledge thereof and afterwards admitted that he was present and saw Williams commit the crime, should not have been admitted. It is not necessary for us to determine whether such a denial, would constitute one an accessory after the'fact, if made with intent to conceal the commission of the crime, for here, when the appellant was questioned[*162] Tby the police officers, he was himself in custody charged with having killed Lizzie Marsh, and his denial of knowledge thereof was evidently made for the purpose of shielding himself. 16 C. J., 140.

The court refused to grant the appellant an instruction to the effect that the principal in the commission of a felony cannot thereafter become an accessory after the fact, and, if they believed from the evidence that the appellant himself murdered Lizzie Marsh, or assisted Williams so to do, he could not be convicted of being an accessory thereto after the fact. It follows from what we have heretofore said that this instruction should have been granted.

Reversed and remanded.