Volume 230 — Mississippi Reports

<bold>1. Criminal law — evidence — accused's statements — "admissions"</bold> <bold>tending to prove guilt of larceny — not a "confession".</bold> Statements made by accused to sheriff that accused "fell heir" to loot stolen from a store, which he did not actually enter, and that he knew it was going to happen were merely "admissions" of facts pertinent to the issue which, in connection with other facts, tended to prove accused's guilt of larceny, and did not amount to a "confession". <bold>2. Criminal law — evidence — admissions — confession — where</bold> <bold>admitted in evidence — all that accused said in such</bold> <bold>connection must also be permitted to go to jury.</bold> Where confession or admissions of accused are admitted in evidence against him, all that he said in such connection must also be permitted to go to jury, either through cross-examination of the witness who testified concerning such confession or admissions or through witnesses produced by accused. <bold>3. Criminal law — evidence — admissions — confession — where</bold> <bold>admitted in evidence — relevant self serving declarations made</bold> <bold>on same occasion — admissible as part of accused's whole</bold> <bold>statement.</bold> Where confession or admissions made by accused in statement to officers are admitted in evidence against him, fact that declarations made by accused were self-serving does not preclude their introduction in evidence as a part of his whole statement, if such declarations are relevant to statements introduced by the State and were made on the same occasion. <bold>4. Criminal law — evidence — admissions — action of Trial Court</bold> <bold>in refusing to allow admission of accused's entire statements</bold> <bold>— reversible error.</bold> Where case against accused in prosecution for larceny was circumstantial and State was permitted to introduce evidence as to portions of statements allegedly made by accused to officers amounting to admissions adverse to his interests, refusal to permit accused to show, on cross-examination of sheriff or on cross-examination of accused by District Attorney the entire conversations between sheriff and accused on ground that any denial or explanatory or exculpatory statement made by accused to sheriff would be self-serving, was error prejudicial to accused. Headnotes as approved by Gillespie, J.<page_number>Page 184</page_number>

<bold>1. Indictment — grand larceny of sacks of dairy feed —</bold> <bold>indictment sufficient without specifying different types of</bold> <bold>grain or other elements and percentage of each composing</bold> <bold>feed.</bold> In prosecution for grand larceny, an indictment charging that defendant did steal and carry away ten 110 pound sacks of dairy feed of the value of $3.50 each, and of the total value of $35, the personal property of the prosecuting witness, was sufficient without specifying the different types of grain or other elements and the percentage of each composing the dairy feed. <bold>2. Larceny — grand larceny of 10 sacks of dairy feed of value of</bold> <bold>$3.50 each — where successive takings are shown to be one</bold> <bold>continuous, consecutive transaction — evidence supported</bold> <bold>conviction.</bold> Where the transporting of sacks of feed by means of a wheelbarrow was one continuous, consecutive transaction, proof was sufficient to support a conviction of grand larceny of<page_number>Page 300</page_number> property of the value of more than $25 as against the defendant's contention that proof showed only that he took and carried away one sack of feed at a time worth $3.50. <bold>3. Larceny — evidence established that value of stolen dairy</bold> <bold>feed was as much as $25 so as to sustain conviction for grand</bold> <bold>larceny.</bold> In larceny prosecution, evidence was sufficient to establish that the value of stolen dairy feed was as much as $25 so as to sustain a conviction for grand larceny. <bold>4. Criminal law — argument of prosecuting attorney — not an</bold> <bold>improper comment on failure of defendant to testify.</bold> Argument of prosecuting attorney that witness had testified that value of feed stolen was $3.50 per sack and that such was not disputed was not an improper comment on the failure of the defendant to take the stand and testify and was not prejudicial in any event, where defendant obtained an instruction to the effect that jury could not convict defendant simply because he did not testify, which instruction was much more effective in directing the attention of the jury to his failure to testify than were the remarks of the prosecuting attorney. <bold>5. Criminal law — refusal of instructions not error where they</bold> <bold>were covered by other instructions granted defendant.</bold> Refusal of requested instructions was not error where they were sufficiently covered by the instructions given by the court at defendant's request. Headnotes as approved by Roberds, P.J.

<bold>1. Trusts — statutes — grantee's letter to grantors advising</bold> <bold>that if grantors would execute deed for limited purpose</bold> <bold>grantee would reconvey — not subject to recordation — did not</bold> <bold>meet statutory requirements of express trust.</bold> Grantee's letter which told two of the grantors that, if they would execute deed, grantee would reconvey to them and the other grantors their former interest after grantee had obtained loan on the property conveyed, was not subject to recordation under statute requiring that, for an express trust, the declaration shall, inter alia, be lodged with the Chancery Court Clerk to be recorded, and therefore, did not meet the requirements of such statute for an express trust. Sec. 269, Code 1942. <bold>2. Trusts — property placed by one in hands of another or title</bold> <bold>conveyed for limited purpose.</bold> Where property is placed by one in hands of another or title is conveyed for a limited purpose, a trust relation exists. <bold>3. Limitation of actions — statutes — trusts — bills for relief</bold> <bold>in regard to, filed within ten years.</bold> Statutory provision that bills for relief in regard to existence of trust not cognizable at common law and in all other cases not provided for in statute shall be filed within ten years after cause thereof has accrued except to persons under disability applies to either express or implied trusts. Sec. 746, Code 1942. <bold>4. Limitation of actions — constructive trust — repudiation not</bold> <bold>necessary to set statute in operation.</bold> Repudiation of an implied constructive trust is not necessary to set the ten year statute of limitations in operaion. Sec. 746, Code 1942.<page_number>Page 388</page_number> <bold>5. Limitation of actions — constructive trust — statute begins</bold> <bold>to run — when.</bold> Ten year statute of limitations begins to run against implied or constructive trust from time of commission of act by which actor becomes chargeable. Sec. 746, Code 1942. <bold>6. Limitation of actions — grantors' action based on implied or</bold> <bold>constructive trust — barred by limitations.</bold> Grantee, who sought to obtain title to land conveyed for purpose of obtaining a loan thereon, and who promised to reconvey to grantors, who were adults, their former interests after loan had been obtained, had duty to make the reconveyance after loan was made, and, therefore, grantors' cause of action based upon an implied or constructive trust then arose for purpose of determining running of ten year statute of limitations. Secs. 264(c), 269, 709-711, 718, 723, 743, 746, Code 1942. <bold>7. Trusts — limitation of actions — constructive trust — failure</bold> <bold>to institute action on within statutory period — claim barred.</bold> Failure to institute action on alleged implied or constructive trust until over twenty years had expired after the cause of action accrued barred the claim. Sec. 746, Code 1942. Headnotes as approved by Lee, J.

<bold>1. Homicide — murder — evidence supported conviction.</bold> Evidence supported conviction of murder of defendant's husband. <bold>2. Criminal law — witnesses — permitting witness to testify who</bold> <bold>has remained in courtroom after rule invoked — in discretion</bold> <bold>of Trial Judge.</bold> Whether witness may testify when he has remained in courtroom after the rule has been invoked rests largely in Trial<page_number>Page 708</page_number> Judge's discretion, and Supreme Court will not reverse in such an instance unless there has been abuse of discretion. <bold>3. Criminal law — trial — no abuse of Trial Judge's discretion</bold> <bold>in permitting witness who had remained in courtroom after rule</bold> <bold>invoked to testify.</bold> In murder prosecution, Trial Judge did not abuse his discretion in permitting witness who had remained in courtroom after rule had been invoked to testify concerning a threat allegedly made by defendant. Headnotes as approved by Lee, J.

<bold>1. Attorney and client — action by client for personal injuries</bold> <bold>under Jones Act — plea of settlement and release by defendant</bold> <bold>— evidence on plea in bar sustained finding that defendant had</bold> <bold>no notice of attorney's assignment of interest in case.</bold> In action by client for personal injuries under Jones Act wherein answer of the defendant set up in bar of action a written settlement and release by client of all claims against defendant, and client's attorney, who held a written assignment of an interest in client's case, was admitted as party-plaintiff but attorney had not filed his contract in cause so as to effect notice as provided by applicable statute, evidence on plea in bar, which was not contested by client, sustained finding that defendant had had no knowledge or notice of employment contract upon which attorney predicated his claim. Sec. 1448, Code 1942.<page_number>Page 714</page_number> <bold>2. Jury — Jones Act — jury trial waived on issue presented on</bold> <bold>hearing of plea in bar.</bold> Even if it be assumed that the Jones Act gave seaman right to have jury try issue as to whether action was barred by written settlement and release, such right would be deemed waived where motion had been made to have issue heard by Trial Judge separately, and Trial Judge had so ordered, and no objection to the procedure, or request for jury trial of issue, had been made. Jones Act, Sec. 688, 46 U.S.C.A. <bold>3. Continuance — plaintiff's oral motion for continuance at</bold> <bold>close of testimony for purpose of taking testimony of witness</bold> <bold>— properly denied.</bold> It was not error to deny plaintiff's oral motion, at close of taking of testimony, for continuance for purpose of taking testimony of witness, where affidavit was not made as required by statute and there was no showing as to what the testimony of witness would be, or that due diligence had been used to procure his presence as witness, or that continuance was sought in order that justice might be done and not merely for delay. Sec. 1520, Code 1942. Headnotes as approved by Roberds, P.J.