Volume 228 — Mississippi Reports

<bold>1. Homicide — assault and battery — evidence insufficient to</bold> <bold>sustain conviction.</bold> Evidence was not sufficient to sustain a conviction for assault and battery with intent to kill. Headnote as approved by McGehee, C.J.

<bold>1. Criminal law — photographs — admissible — on showing that</bold> <bold>they accurately depict object or scene purported to be</bold> <bold>photographed.</bold> In murder prosecution, photographs were admissible on a showing that they accurately depicted object or scene purported to be portrayed, and it was not necessary that the photographs be testified to by photographer, nor that there be testimony as to the kind or condition of camera. <bold>2. Criminal law — photographs — authenticated how — by whom.</bold> Proposition that a photograph accurately represents the place or subject it purports to represent may be shown by any competent witness whose view of actual scene at pertinent time enables him to testify that picture accurately represents the scene. <bold>3. Murder — photographs — body of victim — relevant —</bold> <bold>admissible.</bold> In murder prosecution, wherein evidence showed that accused shot victim in night club, and that victim ran from building, and victim's body was found next morning across highway<page_number>Page 297</page_number> from building, admission of photographs, wherein was body of victim, which showed building where shooting took place and its relation to highway and place where body was found, and showing wound where bullet entered the body, were pertinent and relevant to the inquiry, and were admissible. <bold>4. Criminal law — evidence — weapon admissible — as murder</bold> <bold>weapon.</bold> Where evidence disclosed that murder weapon had been purchased by defendant's companion and that defendant had given weapon to another to keep, weapon was admissible. <bold>5. Homicide — murder weapon — evidence.</bold> Where alleged murder weapon was admitted and evidence disclosed that one shot had been fired from weapon at time victim was killed, it was not error to permit policeman to testify that gun contained five cartridges and one empty shell. <bold>6. Criminal law — accusatory statements made against defendant —</bold> <bold>undenied — in reconstructing events at scene of crime —</bold> <bold>admissible in evidence.</bold> Where the day after the killing police took defendant and eyewitness to scene of shooting, and eyewitness in defendant's presence, reconstructed events and defendant, upon being asked if witness' demonstration and statements were correct, said, "I just don't remember", permitting policeman to relate before jury the foregoing events and quote words used by eyewitness in reconstructing events, and defendants quoted reply, was not error, but was admissible as an implied confession. <bold>7. Criminal law — accusatory statements — undenied —</bold> <bold>admissibility in evidence — generally.</bold> Where accusatory statements are made against a party within his presence and hearing, and are understood by accused, and circumstances are such that it is proper and natural for accused to deny accusations, and he has a fair opportunity to reply, a total or partial failure to reply or an evasive answer is admissible in evidence as an admission of truth of the accusatory statements. <bold>8. Murder — evidence — sustained conviction.</bold> Evidence sustained conviction for murder. Headnotes as approved by Gillespie. J.<page_number>Page 298</page_number>

<bold>1. Bailments — title — bailor's right as against innocent</bold> <bold>purchaser from bailee.</bold> If one delivers property to another as a mere bailee, a purchaser from the bailee, however innocent he may be, acquires no title as against bailor, for the sale, though to an innocent purchaser, does not divest the title of the bailor, and he may recover the property or its value from the vendee or transferee in an appropriate form of action. <bold>2. Negligence — owner of used car lot whose agent negligently</bold> <bold>permitted automobile to come into hands of thief — not liable</bold> <bold>in damages to innocent purchasers from thief — rule of caveat</bold> <bold>emptor applies.</bold> Even though agent of used car lot owner was negligent in permitting prospective buyer, who subsequently sold automobile to innocent purchasers, to take automobile from lot without supervision, owner would not be liable in damages to persons who subsequently innocently purchased automobile from thief; doctrine of caveat emptor applies in this situation. <bold>3. Appeal — conversion — peremptory for bailor against innocent</bold> <bold>purchasers — properly granted — counterclaim for damages based</bold> <bold>on negligence of bailor's agent — improperly submitted to</bold> <bold>jury.</bold> In suit for unlawful conversion of automobile by owner of used car lot against defendants who had innocently purchased automobile which had been stolen from lot by would-be buyer, wherein defendants counterclaimed for damages on theory that agent of owner had been negligent in entrusting automobile to thief for use and trial without a representative accompanying him, Trial Court properly granted peremptory instruction to plaintiff for recovery on original declaration, but erred in submitting counterclaim to jury, which returned verdict equal to verdict of plaintiff on peremptory instruction. Headnotes as approved by Hall, J.

<bold>1. Descent and distribution — sole heir's consent to division of</bold> <bold>decedent's estate — not obtained by fraud and undue</bold> <bold>influence.</bold> Evidence would not sustain contention that sole heir's consent to a division of her deceased sister's estate with her half-brothers<page_number>Page 632</page_number> and sisters had been obtained by fraud and undue influence. <bold>2. Gifts — sole heir's consent to division of decedent's estate</bold> <bold>with half-brothers and sisters by administratrix — instrument</bold> <bold>authorizing — ineffective as a gift — without delivery.</bold> In proceedings, brought for approval of administratrix' final account and for distribution, wherein issue was raised as to validity of instrument by which decedent's sole heir authorized administratrix to collect all of the assets of the estate and convert same into money and then to make a division thereof between such sole heir and her half-brothers and sisters, Supreme Court held that there was no consideration for the instrument; that the instrument was not an assignment, and adhering to the rule that delivery to donee of deed of gift is not sufficient alone to convey title, further held that there could be no effective gift until at least some of assets of decedent's estate had been delivered, and that until such time sole heir could change her mind and revoke the instrument, and having done so half-brothers and sisters were entitled to nothing by virtue of such instrument. <bold>3. Gifts — inter vivos — purpose of donor to make — must be</bold> <bold>clearly established.</bold> To constitute a gift inter vivos, purpose of donor to make gift must be clearly and satisfactorily established. <bold>4. Gifts — inter vivos — completed by irrevocable delivery — to</bold> <bold>be effective.</bold> To be effective inter vivos gift must be completed by actual, constructive, or symbolical delivery without power of revocation. <bold>5. Gifts — inter vivos — mere promise — ineffective to</bold> <bold>constitute.</bold> A mere promise or declaration of intention to give, however clear and positive, is not enough to constitute a valid gift inter vivos. <bold>6. Gifts — inter vivos — complete and unconditional delivery —</bold> <bold>essential.</bold> Complete and unconditional delivery is essential to perfection of gift inter vivos. <bold>7. Gifts — inter vivos — delivery — generally.</bold> Delivery, to be effectual to perfect gift inter vivos, must be according to nature and character of thing given, and hence may be actual or constructive, according to circumstances; but<page_number>Page 633</page_number> there must be a parting by donor with all present and future legal power and dominion over property. <bold>8. Gifts — inter vivos — deed of gift — insufficient to convey</bold> <bold>title.</bold> Delivery to donee of deed of gift is not sufficient alone to convey title. Headnotes as approved by Hall, J.

<bold>1. Banks and banking — deposits — depositor suffered no loss</bold> <bold>from anything bank did in receiving deposits and permitting</bold> <bold>deductions therefrom.</bold> In suit by depositor against bank to recover sums of money which bank permitted employee of depositor to deduct from<page_number>Page 854</page_number> deposits, and which were returned to depositor's local office and placed in depositor's cash fund, after depositor had given bank written instructions to effect that funds could only be withdrawn from account for the purpose of transferring funds to a Memphis bank, evidence was sufficient to sustain finding that depositor sustained no loss from anything that bank did in receiving the deposits and permitting deductions therefrom. Headnote as approved by Arrington, J.

<bold>1. Criminal law — conviction — based on uncorroborated testimony</bold> <bold>of accomplice — overturned when — alibi.</bold> A person may be convicted upon the uncorroborated evidence of an accomplice, but where the accomplice's reputation for truth and veracity has been successfully impeached by unimpeached witnesses, and where such evidence is not corroborated sufficiently, and where there is strong testimony of an alibi by numerous witnesses, a conviction on such testimony of such impeached witness will not be upheld. <bold>2. Appeal — jury verdict — set aside by Supreme Court in proper</bold> <bold>case.</bold> Supreme Court is rarely justified in setting up its judgment against that of the jury on an issue of fact, nevertheless it should do so in a proper case. <bold>3. Criminal law — armed robbery — conviction based on testimony</bold> <bold>of accomplice — set aside — alibi.</bold> In prosecution for armed robbery, State's evidence, based solely upon the testimony of an alleged accomplice, was so thoroughly impeached by defendant's alibi evidence as to entitle defendant to his requested peremptory instruction to acquit him. Headnotes as approved by Hall, J.<page_number>Page 861</page_number>