Opinion
No. 31841.
October 7, 1935.
1. CRIMINAL LAW.
Assignment complaining of permitting state to peremptorily challenge juror previously accepted by both state and accused presented no cause for reversal, where record did not show that accused was compelled by court's ruling to exhaust his peremptory challenges or was otherwise prejudiced.
2. CRIMINAL LAW.
Supreme Court will not reverse, unless record discloses that trial court erred in making ruling complained of and that appellant was materially prejudiced thereby (Rules of Supreme Court, par. 11).
3. CRIMINAL LAW.
In murder prosecution, where officer testified that accused admitted killing deceased when arrested, subsequent statement made by accused after drinking coffee, walking one, and riding two, blocks, in reply to query as to how he came to kill deceased, that deceased was hitting him over the head and that accused had to do it held not sufficiently contemporaneous with admission to be admitted as part thereof.
4. HOMICIDE.
In murder prosecution, verdict stating that jury found accused guilty as charged, but failed to agree as to punishment, and begged mercy of court on account of accused's age authorized court to sentence accused to penitentiary for life, as against contention that verdict was so vague that it should not have been received, where accused made no request that jury be instructed to retire to clear up verdict.
APPEAL from circuit court of Alcorn county.
HON. THOS. H. JOHNSTON, Judge.
Fred Lewis was convicted of murder, and he appeals. Affirmed.
Carey Stovall and Hugh Hopper, both of Corinth, for appellant.
The lower court erred in allowing the state to peremptorily challenge a juror who had formerly been accepted by both the state and the defendant.
Section 1277, Code of 1930, specifically provides the manner in which peremptory challenges are to be exercised, and provides among other things: "But all peremptory challenges by the state shall be made before the juror is presented to the prisoner, and in all cases the accused shall be presented a full panel before being called upon to make his peremptory challenge."
Dixon v. State, 143 So. 855, 164 Miss. 540; Gibson v. State, 12 So. 582, 70 Miss. 554.
The ruling of the court in this instance constitutes reversible error.
Stewart v. State, 50 Miss. 587; Cagle v. State, 44 So. 381, 151 Ala. 84; Andrews v. State, 44 So. 696, 152 Ala. 16.
The act of allowing the state to peremptorily challenge Tom Thrasher, a juror who had formerly been accepted by both the state and defendant, was an absolute disregard of section 1277 of the Code of 1930.
It is well settled that in the proof of a confession the whole of what the accused said on the subject should be submitted to the jury, including that part favorable to him, as well as the inculpatory, or incriminating part.
Coon v. State, 13 S. M. 246; McCann v. State, 13 S. M. 471; State v. Gonzales, 139 So. 15, 173 La. 947; 2 A.L.R., pp. 1017, 1018, 1019; State v. Branstetter, 65 Mo. 149; People v. Tugwell, 28 Cal.App. 348, 152 P. 470.
The whole of the defendant's confession should have gone to the jury, or all of it should have been excluded, and the lower court in its ruling in this instance committed reversible error.
The sheriff took a very active part in assisting the state in selecting the jury, and as shown by the record, came into the defendant's room where he and his counsel were passing on the jurors and while in said room obtained confidential information, which he conveyed to the attorneys for the state, all of which was timely objected to. It was error for the court to permit such conduct and to overrule the defendant's motion.
Whitten v. State, 48 So. 402, 95 Miss. 410.
The trial court erred in overruling the defendant's motion for a new trial on the grounds that the verdict returned into court was vague, indefinite and uncertain, and that same did not represent the verdict intended to be returned by the jury, and that said verdict should not have been received by the judge as it was returned.
Smith v. State, 23 So. 260, 75 Miss. 542; Owens v. State, 33 So. 722, 82 Miss. 31; Jenkins v. State, 114 So. 883, 148 Miss. 702; Sykes v. State, 45 So. 838, 92 Miss. 247.
On motion for a new trial on ground that verdict is contrary to evidence, if the verdict is against the overwhelming weight, or clearly against preponderance of evidence, trial court should grant new trial.
Railroad v. Johnson, 144 So. 581, 65 Miss. 397; Justice v. State, 154 So. 265, 170 Miss. 96; Harmon v. State, 142 So. 473, 167 Miss. 527.
W.D. Conn, Jr., assistant attorney-general, for the state.
Section 1277 of the Mississippi Code of 1930 provides the rules with reference to the uses of peremptory challenges and when the right to so challenge must be exercised.
Dixon v. State, 164 Miss. 540, 143 So. 855; Gibson v. State, 70 Miss. 554, 12 So. 582; Funderburk v. State, 75 Miss. 20, 21 So. 658.
That part of the record relied on by appellant as showing a violation of this statute, does not positively or directly show that the statute has been violated. The record does not recite that the jury was ever presented to the prisoner. The motion was made by the state and shows that it had already accepted this juror, but certainly does not leave it clear as to whether a full panel, including this juror, had ever been tendered to the prisoner and accepted by him.
Pascagoula v. Delmas, 157 Miss. 619, 128 So. 743.
Challenges for cause may be made at any time prior to the introduction of evidence.
Mabry v. State, 71 Miss. 716, 14 So. 267; Sullivan v. State, 155 Miss. 629, 125 So. 115.
If the trial judge excuses a juror because he is believed to be incompetent to fairly try a case, such exclusion is not assignable as error under the plain provisions of section 2030 of the Mississippi Code of 1930.
It is the duty of the court to get fair jurors and if there is any question as to a juror's fairness, the court should set him aside.
Burrage v. State, 101 Miss. 598, 58 So. 217; Bruce v. State, 153 So. 672; Donahue v. State, 142 Miss. 20, 107 So. 15.
The exculpatory statement is a self serving one, pure and simple and under ordinary circumstances such statements cannot be shown on the behalf of a defendant.
Richardson v. State, 123 Miss. 232, 85 So. 184.
It is true that where inculpatory and exculpatory statements are made at one and the same time, the one cannot be admitted without the other or, in other words, the whole admission or confession must be admitted.
But when the declarations are distinguishable in point of time, or are open to the suspicion of being part of defendant's plan of defense, they must be ruled out.
2 Wharton's Cr. Ev., p. 1427.
It might be well enough here to point out that the statement made by the defendant at the time of his arrest was not a confession, strictly speaking, but an admission.
Pringle v. State, 108 Miss. 802, 67 So. 455.
Certainly the sheriff will not and must not take part in the procurement of an unfair juror for either side, but it is his duty to see that the district attorney is advised against a juror whom he knows, or has reason to believe, would be unfair to the state.
Simmons v. State, 163 Miss. 334, 141 So. 288.
Ordinarily, recommendations of mercy in the verdict are treated as surplusage and the court has held that such recommendations do not vitiate a verdict.
Jenkins v. State, 148 Miss. 702, 114 So. 883; Bridges v. State, 154 Miss. 489, 122 So. 533.
Argued orally by Cary Stovall, for appellant, and by W.D. Conn., Jr., for the state.
This is an appeal from a conviction of murder, followed by a sentence to the penitentiary for life.
The assignments of error that we deem necessary to here discuss are that the court below erred: (1) In permitting the state to peremptorily challenge a juror after he had been accepted by both the state and the appellant; (2) in not permitting the appellant to introduce evidence of an exculpatory statement made by him to a police officer by whom the state proved a confession or admission of the appellant that he had killed the decedent; and (3) that the verdict rendered by the jury was so vague and uncertain that it should not have been received, but the jury should have been directed to clear it up.
While the jury was being impaneled and before its completion, but after a juror by the name of Thrasher had been accepted by both the state and the appellant, the state requested the court to permit it to challenge Tom Thrasher peremptorily, on the ground that his son was assisting the appellant in the selection of the jury. This request was sustained over the appellant's objection, and the juror was peremptorily challenged by the state. No evidence was heard on this request before it was granted. Evidence as to the alleged activity of the juror was introduced in another connection, which evidence discloses a sufficient reason for the peremptory challenge; but, as it was not before the court when the challenge was allowed, it will not be here considered, though we do not mean to intimate that it could not be considered.
1. We will assume that the court erred in permitting this juror to be peremptorily challenged. Stewart v. State, 50 Miss. 587; Burrage v. State, 101 Miss. 598, 58 So. 217; but it does not necessarily follow therefrom that the judgment should be reversed. This court has announced in numerous decisions that before it will reverse a judgment it must appear from the record (1) that the trial court erred in making a ruling complained of, and (2) that the appellant was materially prejudiced thereby. While it may not have been necessary so to do, this rule is set forth in paragraph 11 of the rules of this court. It does not here appear that the appellant was compelled by this ruling of the court to exhaust his peremptory challenges or that he was in any other way prejudiced thereby. This assignment of error is, therefore, without merit.
The evidence for the state disclosed a felonious homicide, but no witness other than the appellant saw what there occurred or identified the appellant as the one who killed the deceased. The state introduced a deputy sheriff, who said that shortly after the deceased was shot he and others went to the residence of the appellant, and found him up making a cup of coffee. The deputy told the appellant that "he was under arrest for shooting old man Latta (the deceased)," and he replied, "You have got the right one — I was the one who did the shooting." The appellant made no further statement at that time. On the cross-examination of this witness, not in the presence of the jury, it developed that after the appellant had said that he killed the deceased, he asked permission to, and did, drink a cup of coffee, and then walked with the deputy sheriff and his companions about one block, where they entered an automobile and drove to the jail. After going about two blocks, either the deputy sheriff, or one of his companions asked the appellant "how come you to kill that man," and he replied, "He was hitting me over the head, and I had to do it." This exculpatory statement was not permitted to go to the jury.
The appellant testified in his own behalf and admitted killing the deceased, but said that he was compelled to do so for the reason that the deceased was hitting him over the head with a stick, the size of which does not appear. A stick was exhibited to the jury which, if they believed the appellant, they could have found was the stick referred to by him.
The appellant says that the exculpatory statement made by him to the deputy sheriff was a continuation of and practically contemporaneous with, and part of, his statement that he had killed the deceased; and he invokes the rule that all of the confession or admission must be admitted in evidence, including the exculpatory parts thereof, when the confession or admission is introduced. This case does not come within that rule. The conversation in which the admission was made had ended. There was nothing then said by any person to indicate that it would be continued, and the exculpatory statement afterwards made was no part thereof, and constitutes a mere self-serving declaration. No error was committed in excluding it.
The jury were instructed that in the event they should find the defendant guilty as charged, they should return one of the following verdicts:
"1st. `We, the jury find the defendant guilty as charged,' in which event it will be the duty of the court to sentence the defendant to be hanged, or,
"2nd. `We, the jury, find the defendant guilty as charged, but fail to agree as to the punishment,' in which event it will be the duty of the court to sentence the defendant to life imprisonment in the state penitentiary, or,
"3rd. `We, the jury, find the defendant guilty as charged, and fix his punishment at life imprisonment in the state penitentiary,' in which event it will be the duty of the court to so sentence the defendant."
The judgment after the necessary preliminary recitals, including the retirement of the jury to consider their verdict, continues: "Said jury . . . returned into open court the following: `We, the jury, find the defendant guilty as charged, but fail to agree as to the punishment, and beg the mercy of the court on account of defendant's age.' Said jury was then and there polled by the court, and each juror said that was his verdict." The record does not disclose any request by the appellant that the jury be instructed to retire to further consider and clear up this verdict. The court, therefore committed no error in sentencing the appellant to penitentiary thereon. Jenkins v. State, 148 Miss. 702, 114 So. 883; Bridges v. State, 154 Miss. 489, 122 So. 533.
Affirmed.