Summary
holding that evidence of defendant firing shotgun filled with No. 8 bird shot from a distance of sixty feet is not sufficient to show defendant had intent to kill
Summary of this case from State v. WebsterOpinion
No. 40828.
May 19, 1958.
1. Criminal law — intoxicating liquors — searches and seizures — right to break and enter — officers entitled only to reasonable time within which to make search.
Officers, who had search warrant for intoxicating liquor, had right to break into house and make search for intoxicating liquor even though house was locked and no one was at home, they were entitled to a reasonable time to make search, but they did not have right to remain in house in darkness from ten o'clock until midnight.
2. Homicide — assault with intent to kill and murder — evidence — insufficient to support finding that defendant shot with intent to kill and murder officers engaged in searching defendant's home.
Where four police officers went to home of defendant under authority of search warrant for intoxicating liquor, gained entrance through window upon finding home locked and no one at home, and remained in home from ten o'clock until midnight, defendant, who learned that someone was in his home, and who with a companion shot windows out of home with bird shot from a distance of about 60 feet, was not guilty of assault with intent to kill and murder.
Headnotes as approved by Arrington, J.
APPEAL from the Circuit Court of Forrest County; FRANCIS T. ZACHARY, J.
Lawrence D. Arrington, Hattiesburg, for appellant.
I. Appellant was clearly entitled to a peremptory instruction of not guilty after the State rested, and without question we were entitled to a directed verdict after appellant testified and after both the State and appellant had rested. Lott v. State, 83 Miss. 609, 36 So. 11; Willis v. State, 228 Miss. 92, 87 So.2d 249.
II. After both sides rested, the Court instructed the bailiffs, Constables Lee Daniels and Charlie Ward, to accompany the jury to supper but under no circumstances did the Court specifically authorize the Constables to allow the jury to separate in such a manner so that each Constable took with him six jurors in his own automobile thus allowing the jury to separate into two parties and proceed to travel the distance of approximately one mile from the Forrest County Courthouse to Speed's Restaurant on Broadway Drive for the purpose of obtaining supper. The testimony clearly showed the jury was separated into two distinct parties and that they traveled a total distance of two miles, all of which was unknown to appellant until after the verdict was returned. We submit that even though no communication with any outside person or persons may have been made, it is clearly a matter of common knowledge that here in this case a Negro was on trial for assault with intent to kill an officer and that the Constables were fellow officers working regularly with members of the Sheriff's Office and the mere fact that the Constables provided their own automobiles for the comfort of the jury would certainly have some favorable impression on the minds of the jurors.
G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. In the case at bar, there was more than a possibility but there was a strong likelihood of one or more shots taking effect upon the prosecuting witness. Lott v. State, 83 Miss. 609, 36 So. 11; Willis v. State, 228 Miss. 92, 87 So.2d 249; Stokes v. State, 92 Miss. 415, 46 So. 627, 21 L.R.A. (N.S.) 898; 14 Am. Jur., Criminal Law, Sec. 69; 26 Am. Jur., Homicide, Sec. 603.
II. The record shows that two men of considerable experience in these matters were appointed bailiffs and given particular instructions by the Court with respect to the jury. It is true that the jury was divided into two groups for the purpose of traveling in separate automobiles to a cafe to partake of a meal. One-half of the jury went in one car and the other half in another car, and one of the bailiffs rode in each car with each group. They were never out of sight of each other, never stopped en route, and immediately reassembled upon arrival at the cafe where they had their meal, and were never subjected to any contact with outsiders. This Court has uniformly held in many cases that a separation in this fashion, coupled with the mere possibility that a juror had been exposed to outside influence, is not sufficient to vitiate a verdict. Anderson v. State, 231 Miss. 352, 97 So.2d 465; Turner v. State, 176 Miss. 862, 170 So. 642; Pepper v. State, 200 Miss. 891, 27 So.2d 842.
The appellant, Leodis Smith, was jointly indicted with Johnny Bond for the crime of assault with intent to kill and murder. Severance was granted and the appellant was tried and convicted and sentenced to seven years in the State penitentiary, from which judgment he appeals.
The record discloses that on the night of September 17, 1957, Deputy Sheriff L.G. Lee and Roland Cranford, a Federal officer, accompanied by the sheriff and another deputy, under the authority of a search warrant for intoxicating liquor, went to the home of the appellant, which was located at Palmer's Crossing in Forrest County. Deputy Sheriff Lee and Cranford, finding the house locked and no one at home, gained entrance to the dwelling through a window. It was a dark night and they did not turn the lights on in the dwelling, but proceeded to search the premises using a flashlight. They put the search warrant on a chest in the residence and then remained in the unlighted house for a considerable period of time. The record does not disclose if anything was found by the search.
The appellant ate his supper with one Maggie K. Knight, who lived next door, and when he arrived there she informed him that someone had been flashing a light around inside his residence. The appellant immediately left and made an investigation of the residence to ascertain who was in his home. He got his coindictee, Johnny Bond, to accompany him. Bond drove his automobile in front of the home and parked in such a manner as to throw his headlights on the front door so that he would be in a position to see who came out of the house. The appellant, armed with a 16-gauge shotgun, went to the rear of the house and fired the gun three times. No one came out. Bond then procured a 12-gauge shotgun and assisted the appellant by shooting the windows out on the east and west sides of the house, but still no one came out. The appellant and Bond then moved to the front of the house where several shots were fired near the front door. At this time, Deputy Sheriff Lee testified that he hollered out, "This is officers, this is the sheriff's officer," but the shooting continued. Up until this time the front door had been closed, and then Officer Cranford took his pistol and broke the glass out, and called out, "Federal officer, this is the law, this is the law." There were some shots fired after this, then Deputy Sheriff Lee fired his pistol three times and they heard someone running.
Cranford testified that he kicked the front door out and they came out but did not see anyone; that on the following Saturday, the Sheriff and Cranford arrested appellant, and Cranford obtained an oral confession from him, which he later reduced to a written statement in his office. The written statement was not offered in evidence. Cranford also testified that the appellant told him that he took his meals next door and while he was there eating his supper, Maggie Knight told him that "the law has been to your house"; that he left the house immediately and he saw Johnny Bond and asked him to help him, which he did, as set out before. Cranford also testified that the appellant told him that he shot in the house to frighten or run out whoever was in there, and that the appellant gave Bond permission to shoot out the glasses in the house; that when he heard someone call out, "sheriff's officer, this is the law," and when they shot the pistol three or four times, he ran.
There was also testimony on the part of the State that the shotguns were fired at a distance of sixty feet from the house, and that the size of the shot was number eight, or bird shot. Neither Lee nor Cranford were hit by the shots fired by the appellant and Bond.
(Hn 1) The appellant assigns as error and argues that the court erred in refusing the requested peremptory instruction for the appellant. Of course, by virtue of the search warrant the officers had a legal right to break into the house and make the search for intoxicating liquor even though the house was locked and no one was at home. They were entitled to a reasonable time to make the search, but we are of the opinion that they did not have a right to remain in the house in darkness for an unreasonable length of time as they did. (Hn 2) According to the record, they were in the home from about ten o'clock until midnight. The record also disclosed that Maggie Knight testified that she told the appellant that somebody was in his house flashing a light; that she did not know who it was. This statement is uncontradicted in the record, nor did the State make any effort to impeach this statement. The officers testified that it was a dark night and they did not turn on the lights in the house, and it is unreasonable, in the absence of any proof, to believe that she knew that public officers were in the home.
The appellant testified in his own behalf that he had never been convicted of any crime. Evidence in his behalf was introduced that his general reputation for peace and violence was good.
Officers are to be commended for their vigilance in enforcing the law, but it is to be remembered here that they were not seeking a desperate felon, but only a misdemeanant.
We are of the opinion that the evidence in this case is insufficient to support a finding beyond a reasonable doubt that the appellant's intent and purpose was to kill and murder, and that the requested peremptory should have been granted.
Reversed and appellant discharged. Roberds, P.J., and Lee, Ethridge and Gillespie, JJ., concur.