Pickett v. State , 164 Miss. 142 ( 1932 )

The appellant was convicted of robbery and sentenced to serve a term in the state penitentiary, from which he appeals to this court.

Mrs. Mattie Hathcock, about seventy-one years of age, was being driven in a wagon by her nephew, Frank Fields, for the purpose of visiting her sister, the mother of Frank Fields. At about three o'clock in the afternoon, James H. Pickett appeared in the wagon as they were driving along, having walked in over the end gate of the wagon; ordered Mrs. Hathcock and Fields to hold up their hands, and robbed them, holding a pistol on them. Fields gave the robber about seventeen dollars, and he then told Mrs. Hathcock she was the one he was after, and that she had a roll on her and to give it up. She was robbed of four hundred eighty-seven dollars, the denominations of the bills being twenty-three twenties; two tens, and seven one dollar bills.

Pickett's father and mother lived about three-fourths of a mile from the place where the robbery occurred. Fields and Mrs. Hathcock stopped at Pickett's home (he was not there at the time) and told them about the robbery. Mrs. Hathcock was positive in her identification of Pickett, as the guilty party.

The defense was an alibi, the appellant, Pickett, returning home shortly after the visit of Fields and Mrs. Hathcock. She saw Pickett the next morning and declared that he was the party who robbed her. There was contradiction of her, as to statements she made accusing another party of the crime.

It is, perhaps, true that she identified Pickett by hearing his voice, but she had known him before the occasion of the robbery.

When Pickett was arrested by the sheriff on the following afternoon, he had, on his person, eight twenty dollar bills, one ten dollar bill, and seven one dollar bills. While on the witness stand, the appellant, Pickett, accounted for this money by claiming that he was paid that amount by one Flanagan for hauling whiskey from Tennessee. Flanagan went upon the witness stand, and contradicted this statement by Pickett.

The appellant moved to exclude the evidence of Mrs. Hathcock upon the ground that her identification of him depended upon knowledge obtained by her through the sense of hearing, but the court overruled this motion.

We shall state other facts in connection with the assignments of error.

It is insisted that the evidence of Mrs. Hathcock is not sufficient upon which to rest the conviction, because her main reason for identifying him was knowledge obtained by a recognition of his voice. We do not think there is any merit in this contention for two reasons: (1) While being robbed in the daytime, Mrs. Hathcock obtained some information independent of her recognition of his voice; and (2) the appellant, Pickett, was missing from his home during the time of the robbery, having left home shortly before that time, and returned shortly after the robbery, having upon his person a number of twenty dollar bills, the possession of which he accounted for in the manner detailed above.

On the first proposition, while it may be true that knowledge obtained through the sense of hearing is not as strong and convincing as knowledge obtained through the sense of sight, yet this is a matter, with the other facts and circumstances, to be considered by the jury on the trial of the case, and, second, there were other circumstances which the jury might have considered as supporting the identification. The jury might have found that the appellant falsely accounted for the possession of a number of twenty dollar bills.

All the testimony and contradictions argued by counsel for the appellant at great length were arguments calculated to influence the jury, but the whole matter was a question of fact for the jury to decide. The jury is the sole judge of the weight and credibility of witnesses.

Frank Fields was jointly indicted with Pickett, but on motion for a severance, the appellant, Pickett, was tried separately. The sheriff, Meeks, was permitted to testify that he released the appellant on bond on the afternoon of his arrest, and that he (the sheriff) immediately started for Tishomingo county to arrest Frank Fields, but on reaching the place where Fields was, the appellant was also there. The objection to this evidence is general, and not specific, and, therefore, cannot be assigned as error here. Jackson v. State (Miss.), 140 So. 683.

It is urged that the court erred in permitting the testimony of John Hathcock as to a conversation the alleged coconspirator, Frank Fields, had with him a night or two before the robbery, Fields then inquiring as to whether or not Mrs. Hathcock had withdrawn all her money from the bank which had failed, and being informed that she had. When this evidence was offered, the appellant objected in the following language: "Defendant objects, not on the main issue in the case. Overruled by the court, to which defendant excepts. Defendant objects on the ground it should have been put on in chief. Overruled by the court to which defendant excepts."

It is now presented to this court, as an objection to this testimony that it was the declaration of the alleged coconspirator out of the presence of the accused, and was, therefore incompetent. This conversation took place before the robbery.

There is no merit in the contention. The objection here is one not presented to the lower court. The presentation of a specific ground of objection is a waiver of other grounds of objection which might have been interposed, and we cannot reverse a case here on a different ground of objection than that presented to the lower court.

We have apparently disposed of this question, stating the rule and the exception thereto, and this case does not fall within the exception. Jackson v. State, supra.

There are numerous other assignments of error in which, in our opinion, there is no merit. The defendant was not entitled to a peremptory instruction, nor is there any reversible error in the instructions granted by the court.

Affirmed.