appellant assigns error in Mississippi

1975This exact point was considered by the court in the case of Dedeaux v. State, 125 Miss. 326 , 87 So. 664 , and it was there held that the word “felonious” as used in the statute defining “larceny,” is not merely descriptive of the grade of the offense, but it is an essential ingredient of the crime, and that an instruction which omits this essential element of the crime is erroneous.

1975This exact point was considered by the court in the case of Dedeaux v. State, 125 Miss. 326 , 87 So. 664 , and it was there held that the word “felonious” as used in the statute defining “larceny,” is not merely descriptive of the grade of the offense, but it is an essential ingredient of the crime, and that an instruction which omits this essential element of the crime is erroneous.

1975In Poe v. State, 159 Miss. 76 , 132 So. 92 (1931), we said: The appellant assigns as error the second instruction granted at the request of the state which authorized the jury to return a verdict of guilty of larceny if it believed from the evidence, beyond a reasonable doubt, that the defendant “did take, steal and carry away the personal property,” etc., the particular criticism of this instruction being that it omits the word “felonious” which is an essential element of the crime of larceny.

1975In Poe v. State, 159 Miss. 76 , 132 So. 92 (1931), we said: The appellant assigns as error the second instruction granted at the request of the state which authorized the jury to return a verdict of guilty of larceny if it believed from the evidence, beyond a reasonable doubt, that the defendant “did take, steal and carry away the personal property,” etc., the particular criticism of this instruction being that it omits the word “felonious” which is an essential element of the crime of larceny.

1969We are of the opinion that the cases of Lee v. State, 214 Miss. 740 , 59 So.2d 338 (1952) and Wheeler v. Shoemake, 213 Miss. 374 , 57 So.2d 267 (1952), which incidentally were not cited to the trial court nor to this Court, are controlling and require a reversal of the case.

1969We are of the opinion that the cases of Lee v. State, 214 Miss. 740 , 59 So.2d 338 (1952) and Wheeler v. Shoemake, 213 Miss. 374 , 57 So.2d 267 (1952), which incidentally were not cited to the trial court nor to this Court, are controlling and require a reversal of the case.

1969We are of the opinion that the cases of Lee v. State, 214 Miss. 740 , 59 So.2d 338 (1952) and Wheeler v. Shoemake, 213 Miss. 374 , 57 So.2d 267 (1952), which incidentally were not cited to the trial court nor to this Court, are controlling and require a reversal of the case.

1969We are of the opinion that the cases of Lee v. State, 214 Miss. 740 , 59 So.2d 338 (1952) and Wheeler v. Shoemake, 213 Miss. 374 , 57 So.2d 267 (1952), which incidentally were not cited to the trial court nor to this Court, are controlling and require a reversal of the case.

1962As to the question of the constitutionality of the act, the defendant cites Kahalley v. State, 48 So. 2d 794 (Ala., 1950).

1957It is conceded that if the appellant is guilty of the acts charged against him, the same constitute constructive contempt of court, and this Court has, under a similar state of facts, just recently so held in the case of Young v. State, 93 So. 2d 452 , decided March 11, 1957.

1954The argument of the appellant is directed mainly to the question-of 'the authority of the district attorney to bring the suit, and it is the contention of the appellant that the subject matter of the litigation is not of statewide interest but a matter of local interest, and that, therefore, the decisions of this Court in the cases of Capitol Stages v. State, ex rel District Attorney, 157 Miss. 576 , 128 So. 759 , and Kennington-Saenger Theaters, Inc. v. State ex rel District Attorney, 196 Miss. 841 , 18 So. 2d 483 , holding that the district attorney has no authority to represent the State in

1954The argument of the appellant is directed mainly to the question-of 'the authority of the district attorney to bring the suit, and it is the contention of the appellant that the subject matter of the litigation is not of statewide interest but a matter of local interest, and that, therefore, the decisions of this Court in the cases of Capitol Stages v. State, ex rel District Attorney, 157 Miss. 576 , 128 So. 759 , and Kennington-Saenger Theaters, Inc. v. State ex rel District Attorney, 196 Miss. 841 , 18 So. 2d 483 , holding that the district attorney has no authority to represent the State in

1954The argument of the appellant is directed mainly to the question-of 'the authority of the district attorney to bring the suit, and it is the contention of the appellant that the subject matter of the litigation is not of statewide interest but a matter of local interest, and that, therefore, the decisions of this Court in the cases of Capitol Stages v. State, ex rel District Attorney, 157 Miss. 576 , 128 So. 759 , and Kennington-Saenger Theaters, Inc. v. State ex rel District Attorney, 196 Miss. 841 , 18 So. 2d 483 , holding that the district attorney has no authority to represent the State in

1954The argument of the appellant is directed mainly to the question-of 'the authority of the district attorney to bring the suit, and it is the contention of the appellant that the subject matter of the litigation is not of statewide interest but a matter of local interest, and that, therefore, the decisions of this Court in the cases of Capitol Stages v. State, ex rel District Attorney, 157 Miss. 576 , 128 So. 759 , and Kennington-Saenger Theaters, Inc. v. State ex rel District Attorney, 196 Miss. 841 , 18 So. 2d 483 , holding that the district attorney has no authority to represent the State in

1951The surmise of the juror in this case, that the fact stated by him had caused the conviction, could not of course be considered by the court." In Shaw v. State, 79 Miss. 577 , 31 So. 209 , the Court held: "Jurors may not be heard to impeach their verdict by their own misconduct, or by what took place in their private room, or because of the grounds on which they found their verdict, but are competent to show the misconduct of others." In Ulmer v. Pistole, supra, it was held by the Court: "The appellant assigns as error the verdict of nine jurors, as void and unconstitutional; that the verdict

1951The surmise of the juror in this case, that the fact stated by him had caused the conviction, could not of course be considered by the court. ’ ’ In Shaw v. State, 79 Miss. 577 , 31 So. 209 , the Court held: “Jurors may not be heard to impeach their verdict by their own misconduct, or by what took place in their private room, or because of the grounds on which they found their verdict, but are competent to show the misconduct of others.” In Ulmer v. Pistole, supra, it was held by the Court: “The appellant assigns as error the verdict of nine jurors, as void and unconstitutional; that the verdi

1951As to these last contentions we hold that a verdict in civil cases returned by nine jurors is valid and constitutional, and the verdict cannot be impeached by *728 any one of the twelve jurors on the jury. [ 115 Miss. 485 , 76 So. 524 .]" We therefore are of the opinion that, for the reasons set out above, the lower court committed no error in overruling the motion for a new trial.

1951As to these last contentions we hold that a verdict in civil cases returned by nine jurors is valid and constitutional, and the verdict cannot be impeached by any one of the twelve jurors on the jury. [ 115 Miss. 485 , 76 So. 524 .]” We therefore are of the opinion that, for the reasons set out above, the lower court committed no error in overruling' the motion for a new trial.

1951In the case of Seward v. West, 168 Miss. 376 , 150 So. 364, 366 , the Court said that the statutory penalty for the wrongful cutting of timber will be allowed ‘‘ only where the facts are well proved and where the testimony shows the trespass to have been willful, or the negligence so gross, or the indifference so real, or the lack of good faith so evident, as to be tantamount to willfulness”.

1951In the case of Seward v. West, 168 Miss. 376 , 150 So. 364, 366 , the Court said that the statutory penalty for the wrongful cutting of timber will be allowed ‘‘ only where the facts are well proved and where the testimony shows the trespass to have been willful, or the negligence so gross, or the indifference so real, or the lack of good faith so evident, as to be tantamount to willfulness”.

1932In support of this contention, the appellant relies principally upon the cases of Lowenburg v. Klein, 125 Miss. 284 , 87 So. 653, 655 , and Grapico Bottling Company v. Ennis, 140 Miss. 502 , 106 So. 97 , 44 A. L.

1932In support of this contention, the appellant relies principally upon the cases of Lowenburg v. Klein, 125 Miss. 284 , 87 So. 653, 655 , and Grapico Bottling Company v. Ennis, 140 Miss. 502 , 106 So. 97 , 44 A. L.

1932In support of this contention, the appellant relies principally upon the cases of Lowenburg v. Klein, 125 Miss. 284 , 87 So. 653, 655 , and Grapico Bottling Company v. Ennis, 140 Miss. 502 , 106 So. 97 , 44 A. L.

1932In support of this contention, the appellant relies principally upon the cases of Lowenburg v. Klein, 125 Miss. 284 , 87 So. 653, 655 , and Grapico Bottling Company v. Ennis, 140 Miss. 502 , 106 So. 97 , 44 A. L.

1931In the case of *322 Dowell v. Railroad Company, 61 Miss. 519 , it was held that this statute (section 1047, Code 1880, now section 6130, Code 1930) “does not embrace employees among those to whom a right of action is given by it. .

1930It is true that in the case of Lewis v. State, 93 Miss. 697 , 47 So. 467 , the refusal of a similar instruction was held to be erroneous, but this case was overruled by the case of Anderson v. State, 97 Miss. 658 , 47 So. 393 , and in the very recent case of Calloway v. State (Miss.), 125 So. 109 , it was again held that it was proper to refuse an instruction informing the jury that evidence of good character may of itself create a reasonable doubt where otherwise no reasonable doubt would exist.

1930It is true that in the case of Lewis v. State, 93 Miss. 697 , 47 So. 467 , the refusal of a similar instruction was held to be erroneous, but this case was overruled by the case of Anderson v. State, 97 Miss. 658 , 47 So. 393 , and in the very recent case of Calloway v. State (Miss.), 125 So. 109 , it was again held that it was proper to refuse an instruction informing the jury that evidence of good character may of itself create a reasonable doubt where otherwise no reasonable doubt would exist.

1930It is true that in the case of Lewis v. State, 93 Miss. 697 , 47 So. 467 , the refusal of a similar instruction was held to be erroneous, but this case was overruled by the case of Anderson v. State, 97 Miss. 658 , 47 So. 393 , and in the very recent case of Calloway v. State (Miss.), 125 So. 109 , it was again held that it was proper to refuse an instruction informing the jury that evidence of good character may of itself create a reasonable doubt where otherwise no reasonable doubt would exist.

1930See Brumfield v. State, 150 Miss. 552 , 117 So. 529 ; McFatter v. State, 147 Miss. 133 , 113 So. 187 ; Grady v. State, 144 Miss. 778 , 110 So. 225 ; McGehee v. State, 138 Miss. 822 , 104 So. 150, 151 . 'Second, the appellant assigns as error the action of the court in granting instruction No. 5 on behalf of the state, which is as follows: “The court instructs the jury for the state, that you are the sole judges of the credibility of the witnesses in the case, and, if you believe from the evidence that any *805 witness has knowingly, or corruptly and falsely testified as to any material facts i

1930See Brumfield v. State, 150 Miss. 552 , 117 So. 529 ; McFatter v. State, 147 Miss. 133 , 113 So. 187 ; Grady v. State, 144 Miss. 778 , 110 So. 225 ; McGehee v. State, 138 Miss. 822 , 104 So. 150, 151 . 'Second, the appellant assigns as error the action of the court in granting instruction No. 5 on behalf of the state, which is as follows: “The court instructs the jury for the state, that you are the sole judges of the credibility of the witnesses in the case, and, if you believe from the evidence that any *805 witness has knowingly, or corruptly and falsely testified as to any material facts i

1930It is true that in the case of Lewis v. State, 93 Miss. 697 , 47 So. 467 , the refusal of a similar instruction was held to be erroneous, but this case was overruled by the case of Anderson v. State, 97 Miss. 658 , 47 So. 393 , and in the very recent case of Calloway v. State (Miss.), 125 So. 109 , it was again held that it was proper to refuse an instruction informing the jury that evidence of good character may of itself create a reasonable doubt where otherwise no reasonable doubt would exist.

1930See Brumfield v. State, 150 Miss. 552 , 117 So. 529 ; McFatter v. State, 147 Miss. 133 , 113 So. 187 ; Grady v. State, 144 Miss. 778 , 110 So. 225 ; McGehee v. State, 138 Miss. 822 , 104 So. 150, 151 . 'Second, the appellant assigns as error the action of the court in granting instruction No. 5 on behalf of the state, which is as follows: “The court instructs the jury for the state, that you are the sole judges of the credibility of the witnesses in the case, and, if you believe from the evidence that any *805 witness has knowingly, or corruptly and falsely testified as to any material facts i

1930See Brumfield v. State, 150 Miss. 552 , 117 So. 529 ; McFatter v. State, 147 Miss. 133 , 113 So. 187 ; Grady v. State, 144 Miss. 778 , 110 So. 225 ; McGehee v. State, 138 Miss. 822 , 104 So. 150, 151 . 'Second, the appellant assigns as error the action of the court in granting instruction No. 5 on behalf of the state, which is as follows: “The court instructs the jury for the state, that you are the sole judges of the credibility of the witnesses in the case, and, if you believe from the evidence that any *805 witness has knowingly, or corruptly and falsely testified as to any material facts i

1930See Brumfield v. State, 150 Miss. 552 , 117 So. 529 ; McFatter v. State, 147 Miss. 133 , 113 So. 187 ; Grady v. State, 144 Miss. 778 , 110 So. 225 ; McGehee v. State, 138 Miss. 822 , 104 So. 150, 151 . 'Second, the appellant assigns as error the action of the court in granting instruction No. 5 on behalf of the state, which is as follows: “The court instructs the jury for the state, that you are the sole judges of the credibility of the witnesses in the case, and, if you believe from the evidence that any *805 witness has knowingly, or corruptly and falsely testified as to any material facts i

1930See Brumfield v. State, 150 Miss. 552 , 117 So. 529 ; McFatter v. State, 147 Miss. 133 , 113 So. 187 ; Grady v. State, 144 Miss. 778 , 110 So. 225 ; McGehee v. State, 138 Miss. 822 , 104 So. 150, 151 . 'Second, the appellant assigns as error the action of the court in granting instruction No. 5 on behalf of the state, which is as follows: “The court instructs the jury for the state, that you are the sole judges of the credibility of the witnesses in the case, and, if you believe from the evidence that any *805 witness has knowingly, or corruptly and falsely testified as to any material facts i