Appellant was jointly indicted with Virgil Smith and John Augustine by the grand jury of Copiah County on *Page 559 the charge of robbery of C.C. Coen by the exhibition of a certain pistol and large dirk knife. Section 2367, Code of 1942. A severance was granted and John Augustine was tried first, Augustine v. State, 201 Miss. 277, 28 So.2d 243. The appellant here, Howard White, was tried and convicted, with a sentence of electrocution. On appeal here he files several assignments of error, but we will discuss only those which we think are entitled to discussion.
An examination of the opinion of this court, ante, reveals that the proof in the instant case is stronger against apellant and differs materially in that regard from the evidence involving him in the Augustine case, supra. Here, for instance, the testimony of Mr. Coen was that Augustine held a large dirk against his throat menacingly when appellant was repeatedly exclaiming, "Don't move, I'll shoot," while their codefendant Smith was rifling the shelves of merchandise and Mr. Coen's safe of several hundred dollars in money and also stealing a pistol. The store was in darkness, as the robbers had extinguished the lights. Mr. Coen did not see a pistol. In the Augustine case there was evidence introduced seeking to develop the idea that the pistol, if any were used, was a cap pistol, but there is no such evidence here.
In the Augustine case there was offered an explanation of the origin of a pistol recovered by the officers at the home of the mother of Smith, and the kind of pistol it was, as set out in the opinion. There is no such evidence in this case, although there is mentioned in one of the briefs that the pistol was an Iver Johnson. The record of the instant case reveals that the pistol stolen from Mr. Coen was a Colt revolver. The District Attorney made a determined effort to introduce the pistol recovered by the officers at the home of the mother of Smith into the evidence against appellant here. She denied its ownership, claimed it was not there until these three parties came to her home after the robbery. *Page 560
The attorney for appellant insisted that the State had failed to identify this pistol as having been used in the robbery, and at the end of a preliminary skirmish between counsel, concerning the introduction of the pistol in evidence, the Court orally instructed the jury as follows: "Gentlemen of the jury, you will disregard the statement made by this witness as to having found a pistol at Armstrong's house." The mother of Virgil Smith was then the wife of Armstrong, having remarried. Later the controversy with reference to the competency of the pistol in evidence was resumed. The District Attorney finally informed the Court: "In the interest of time, I will withdraw that pistol." Notwithstanding this, the Court granted an instruction to the State, in its pertinent part, containing the following: "If you believe from all the evidence in this case beyond a reasonable doubt that Howard White, Virgil Smith and John Augustine alias Skinny Augustine, on February 11th, 1946, did, wilfully, unlawfully, and feloniously make an assault upon C.C. Coen, a human being, with certain deadly weapons, towit: a pistol and a large dirk knife, by the exhibition of said deadly weapons," etc. This, the appellant urges, was error because inconsistent with the Court's oral instructions to the jury earlier, and also ignored the withdrawal of the pistol by the District Attorney, and was highly prejudicial to appellant.
This point would probably be well taken were it not for the fact that the State never proved what kind of pistol appellant, Howard White, had in the holdup; and because of the further fact that appellant made a full confession that he was then armed with a pistol. This confession is as follows: "February 14, 1946. I, Howard White, make the following statement voluntary, without violence. I left Wesson Monday afternoon in the company of Virgil Smith, Skinny, Alabama Slim and myself. We drove out to Mr. Coen's store. Stopped to get oil and gas and while there robbed him of money, cigarettes and merchandise with a pistol. I held the pistol and *Page 561 Skinny had the knife. Virgil Smith was the one who got the money and merchandise. We all got in the car and left there and went to John Armstrong's house, colored, about two and a half miles south of Wesson. John Armstrong's wife is the mother of Virgil Smith. Skinny took the knife, searched Mr. Coen and got money and watch." This confession was signed by Howard White, sworn to and subscribed before a notary and reduced to writing by a stenographer. There were several present who heard it and who also testified to the fact of the confession. This confession was admitted into the evidence without any challenge to its competency, except only a general objection. No reasons being assigned for the objection, it was overruled by the Court. We can see no error in admitting this confession, which of itself justified including in the instruction both pistol and dirk.
Appellant complains of certain refused instructions, some of which were obviously restatements of other instructions granted him. The Court committed no error in refusing to duplicate instructions. We find no error in the action of the Court in refusing appellant the other instructions requested and refused.
In the Augustine case, Augustine apeared as a witness for himself. Here the appellant relied solely upon the errors alleged to have been made by the court in the trial of the case. The opinion in the Augustine case discloses that the erorrs, because of which we reversed it for a new trial, were not repeated in the trial of the case at bar. Indeed, we find no reversible error in the court below, and are of the opinion that we should, and we do, affirm its judgment. The date of execution is fixed as Friday, April 18, 1947.