Opinion
No. 34894.
December 21, 1942.
1. JURY.
Where, upon drawing of a special venire, boxes one, three, and five were exhausted after only eight names had been drawn, drawing the rest of jurors from boxes two and four, one of which covered the beat in which crime was committed and the other an adjoining beat, was not error.
2. CRIMINAL LAW.
On motion for new trial based on facts not known during trial, both defendant and his attorneys must make affidavit or testify under oath that they were ignorant of facts during trial.
3. CRIMINAL LAW.
An instruction that, if any single juror does not believe that the state has proved defendant guilty beyond all reasonable doubt, it is sworn duty of that juror to vote not guilty and to continue to do so, was properly refused, for omitting qualification that judgment of juror must be subjected to reasoning and consultation of fellow jurors.
4. HOMICIDE.
A murder conviction was not erroneous on ground that verdict should in any event have been for no higher crime than manslaughter, where, although facts amply warranted a verdict of murder, defendant and the state received instructions authorizing jury to designate the crime as manslaughter.
5. CRIMINAL LAW.
Evidence failed to show undue influence or coercion which would deprive defendant's confession, made to officers seventeen days after commission of offense, of its "voluntary" character so as to render confession inadmissible, notwithstanding confession was the product of repeated questioning by officers of defendant who had sought no other advisors.
APPEAL from the circuit court of Pike county, HON. J.F. GUYNES, Judge.
Hansford L. Simmons, of McComb, and Willie M. Broome, of Tylertown, for appellant.
With reference to the trial jury, it is the contention of appellant that he did not have opportunity to obtain, and did not secure, that fair and impartial jury which the law contemplates. The record reveals that when the special venire of sixty men was drawn, the boxes for beats one, three and five were exhausted after only eight names were drawn from them. The court ordered the remaining fifty-two names to be drawn from the boxes of beats two and four. Twenty-six names were drawn from beat two, adjoining beat four, and twenty-six names were drawn from beat four, the scene of the alleged crime. Appellant asked for a continuance of the case until the next term of court in order that the jury boxes might be refilled and a venire drawn representing every section of the county. This request was denied by the trial court.
Referring to Juror Jim Rock, a tales juror, the record reveals that on his direct examination he admitted that the Coopers had been his neighbors but he said nothing about Cooper and his father owing him bills until he took the stand on motion for a new trial. On close questioning the juror let it appear that he remembered all these details, and who can say the thought of them did not go with him into the jury box and room when returning a verdict? It is a fact that accused owed this juror some money and this was not disclosed until after the verdict had been rendered and motion for a new trial was being heard. After the close of the trial, two reputable citizens signed an affidavit that they heard Juror Jim Rock state, soon after the killing, that "the young people of Pike County ought to take Cooper out, tar and feather him, and burn him — the world don't need them kind of folks," or words to that effect. Juror Rock denied at first that he had ever seen these witnesses, however, he admitted under cross-examination that a crew did come to his house looking for potato weevils or an axe but insisted this was in July before the killing in August. In the light of the record as a whole, it is apparent that juror Rock should not have sat on the trial jury.
With reference to Juror Henry Hughes, his case is even more serious. The record reveals that he qualified as a juror, sat throughout the trial, and helped render the verdict. One of the star witnesses for the state was Hendrix Cutrer, chief deputy sheriff of Pike County. Cutrer was with the prisoner frequently, was present when officers questioned the accused in the private office of the sheriff at Magnolia, and carried him to Brookhaven on the afternoon of the alleged confession. This witness stayed with the prisoner some three or four hours prior to the alleged confession. It became necessary that counsel for appellant closely examine and question all officers during the progress of the trial. The District Attorney, in his closing argument, made the statement to the jury that the whole trial had turned into an attack on the officers, and he called on the jurors to render a verdict that would justify the officers who were trying to do their duty. No exception was taken to this line of argument at the time, for the reason that it appeared legitimate. However, when it developed that Juror Hughes was father-in-law to one of the officers, a chief witness for the state, it became apparent that Juror Hughes, in view of the record as a whole, should not have served on the jury.
Referring to instruction number four for defendant, sought by counsel for appellant and refused by the lower court, it need only be said that this instruction was vital in order that members of the jury might feel their individual responsibility in making up a verdict. Each member of the jury should have felt that he was one of twelve men, charged with an individual duty, and not one-twelfth of a group. Refusal to grant this instruction by the lower court left members of the jury without guidance along this line.
Confessions aroused by fear, though not aroused by spoken threats, are nevertheless "involuntary" because the fear which takes away the freedom of the mind may arise solely from conditions and circumstances surrounding the confession.
Johnson v. State, 89 Miss. 773, 42 So. 606; Brown et al. v. State, 173 Miss. 542, 158 So. 339, 161 So. 465; White v. State, 129 Miss. 182, 91 So. 903; Fisher v. State, 145 Miss. 116, 110 So. 361. Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
Even where the list of jurors was made up altogether from residents of one beat, a verdict and judgment of conviction will be upheld, in the absence of a showing on the part of the defendant that he has been materially hurt, damaged, or prejudiced in any of his rights or that any member of the panel accepted was other than a fair and impartial juror, since Code of 1906, Section 2718, declares that the jury laws are simply directory.
Simmons v. State, 109 Miss. 605, 68 So. 913.
The court committed no error in overruling appellant's motion for a new trial, based upon the ground of disqualification of the jurors, which appellant claims was not known to him before the trial. On a motion for a new trial based on facts not known during the trial, both the defendant and his attorneys must make affidavit, or testify under oath, that they were ignorant of such facts during the trial. This requirement of the law was not complied with in the case at bar.
Hilbun v. State, 167 Miss. 725, 148 So. 365.
The refusing of the instruction was not error. Cartee v. State, 162 Miss. 263, 139 So. 618, holding in effect that a similar instruction was properly refused because it omitted the essential element that the conviction which the juror entertains and upon which he acts must be that which he retains "after consultation and deliberation with his fellow jurors."
The admissibility of a confession is for the determination of the trial judge; and, when admitted, the jury may consider it in the light of the evidence by which it was obtained and give it such weight and credibility as they think it is entitled.
Brooks v. State, 178 Miss. 575, 173 So. 409; Keeton v. State, 175 Miss. 631, 167 So. 68; Brown v. State, 142 Miss. 335, 107 So. 373; Stubbs v. State, 148 Miss. 764, 114 So. 827; Buckler v. State, 171 Miss. 353, 157 So. 353.
Argued orally by Hansford L. Simmons, for appellant, and by R.O. Arrington, for appellee.
Appellant was convicted of murder in the killing of his wife. The homicide occurred on August 10, 1941. The testimony from which the jury were warranted in reaching their verdict discloses that the appellant, early on the date stated, in his own home choked or strangled his wife to death and dragged her body out of the house through a fence and left it in a corn field, after having kicked or stamped upon her head. As a result of the latter abuses, a wound was left in her head and her jaw broken on both sides. There was evidence that the attack upon her was ruthless and accompanied with frenzied force. It is unnecessary further to elaborate the details of the crime.
Later in the day on which the crime was committed, the defendant stated, in offering to explain the absence of his wife whose body had not yet been found: "Somebody have smothered Annette down with a sheet and toted her out of the house. There is prints of her fingers on the bed where she tried to hold on." It was further testified that when the father of the wife inquired as to her whereabouts, the defendant paled noticeably and refused to answer. This conduct led to suspicion and resulted in a a search for the body. During the search, it was suggested to several parties by the appellant that they need not search the corn field because he had searched it thoroughly and she was not there. Several witnesses disclosed that appellant had threatened to kill his wife if she left home and went to the home of her mother, and one of such threats was made by the defendant on the day of the homicide. In view of the fact that a complete written confession was made by appellant about two weeks later, it is appropriate further to recite some other incriminating circumstances which are relevant in considering the attack made upon the voluntary character of this confession. On the morning after the killing, while appellant was in jail, he was accosted by a deputy sheriff of Lincoln County, who was then performing some of the duties of the jailer and who did not know the defendant nor on what charge he was confined, and who asked him what he was "doing in there." The appellant, after identifying the officer as such, replied, "I murdered my wife." On several occasions during the interval between his arrest and the date of his written confession seventeen days later, the defendant was interrogated in the sheriff's office and elsewhere about the crime. These interviews were conducted by officers, who, according to the testimony, invariably assured appellant that he need not make any statement unless he so desired and was warned that any such statement could be used against him. Appellant discussed with other inmates of the jail the nature of evidence in criminal cases and revealed some anxiety as to whether convictions could be allowed to stand on circumstantial evidence alone. He denied his guilt on several occasions. During the interval mentioned, the interrogation was not continuous but upon isolated occasions and would often be brought about by the discovery of some incriminating evidence which would be submitted to appellant for such explanation as he cared to make. Appellant in turn made suggestions to the officers that they investigate certain other parties and on one occasion when a third party was presented to him for questioning by the appellant himself, the latter finally stated, "Well the whole thing looks like it points to me." On August 27th, the defendant was taken to the courthouse at Brookhaven, in an adjoining county, where he was questioned in the presence of Col. T.P. Brady, the Commissioner of Public Safety, Capt. Wilson and Lt. Richardson of the State Highway Patrol, the District Attorney, Mr. Barlow, and Sheriff Britt of Lincoln County. Sheriff Davis of Pike County was also present part of the time, having arrived after the confession had been made and transcribed. Upon his arrival, the defendant stated: "Mr. Davis, I have decided to tell the truth about this thing." To which the sheriff replied: "Well, Luther Lee, I am glad you did. I have been interested in you and I felt like you would." Whereupon, the appellant disclosed to him the details of his written confession. After reading the confession, Mr. Davis asked him "Is this the way it was?", to which he replied "It is." He was then asked why did it, and replied, "Well, I was just mad." The confession itself is next in chronological order. It was on the occasion just mentioned, written down by the District Attorney at the dictation of appellant, who, upon reading the completed document, made several corrections therein and initialed such corrections as well as each page of the confession and signed same. The written confession is as follows:
"My name is Luther Cooper. I am 23 years of age. I am making this statement free and voluntary and of my own free will and I have been advised that I did not have to talk to any one and I have not been threatened or promised anything neither have I been abused by any one and no one has harmed me. But all have been good to me.
"On Saturday night August the 9th, 1941, in Pike County about one (here I said one and he corrected it to 6 and initialed that L.L.C.) six miles west of McComb on O'Neal's Dairy Farm where I lived with my wife Annette Dunaway Cooper age 20 years.
"About 12 o'clock Saturday night I was asleep on my back and my wife waked me pouring some `Beechwood Creosote' toothache medicine (I left out `in my mouth' and he corrected that and initialed it) and I jumped up and ran out on the front porch and spit it out and then went back in the house or started in the
"Luther Lee Cooper
"No. 2
house and my wife met me at the door with a 3 pronged ice (I first wrote pick and he corrected it to prog and he initialed it) and struck at me, and no light on and I caught her by the throat with my left (I left out the word `hand' and he caught that and inserted hand and initialed it there) hand and choked her and threw her on the bed trying to make her drop the Ice (pick) prog and when I turnded back around to her I saw that she had not moved. I saw that she was not moving and I tried to revive her or bring her to, and bathed her face, then I saw that she was dead and I picked her up in my arms and carried her to the wire fence behind the house and put her under the wire and then dragged her by her hands around the end of the corn rows and out in to the corn where she was found, and when I got her there I kicked her once and then stomped her. I was still mad is the reason that I did that. All this happened before I went to milk and after I had gone down and milked and went back to the house and then gave the alarm
"Luther Lee Cooper
"No. 3
and went down to Mr. Pearlie O'Neals, and then went over to Mr. Harry Hart's home and told them the same thing. That is, that Annette (my wife) was gone.
"We looked around for a while and then I got Mr. O'Neal to take me to my mother's and from there on out to my wife's father's and after we had come back home we looked for her again; but I knew all the time where she was and they found her about 3:30 P.M. Sunday, August 10th, 1941.
"And this statement is made by me of my own free will and accord and with (I left out the word `out' and he corrected it and initialed it again) out any promise or any reward or any mistreatment to me by anyone.
"My wife weighed about 90 pounds and was about 5 ft. high (and he signed again on that page)
"`Luther Lee Cooper.'"
In passing upon the competency of the confession, which was admitted by the trial judge after prolonged qualifying testimony, it is well to consider other testimony in adjudging its voluntary character. On August 28th, appellant requested Sheriff Davis to bring his mother to the jail to see him. This was done the next day. Upon their meeting, she requested him to tell her about the matter and he proceeded to relate the details according to his prior confession. She was not called as a witness upon the trial. Upon being later questioned on the details of the confession, the appellant was asked: "There was no toothache medicine or ice prog in it, was there Luther?". In reply to the question, he answered, "No," and shook his head. Appellant, in answer to a question by a deputy sheriff, verified the fact that he had killed her because she had refused to comply with some demand of his. It was further testified by the officers who searched the house the morning of the homicide that no toothache medicine was found in the room and that the ice pick or prong was in its usual place.
While the assignment of error chiefly relied upon involves the competency of the confession, we will respond briefly to some of the other assignments. Upon the drawing of a special venire, boxes one, three and five were exhausted after only eight names had been drawn. The rest of the jurors were drawn from two and four, one of which covered the beat in which the crime was committed and the other an adjoining beat. This was not error. Simmons v. State, 109 Miss. 605, 68 So. 913. Nor was there error in refusing a new trial because of the alleged disqualification of the jurors Rock and Hughes. On the motion for a new trial based on facts alleged to have been unknown during the trial, both the defendant and his attorneys must make affidavit or testify under oath that they were ignorant of such facts during the trial. Hilbun v. State, 167 Miss. 725, 148 So. 365.
Instruction number four, refusal of which is alleged to have constituted error, is as follows: "The Court instructs the jury for the defendant that if any single juror does not believe that the state has proved the defendant guilty beyond all reasonable doubt, then it is the sworn duty of that juror to vote not guilty and to continue to do so." It was clearly proper for the court to refuse this instruction, since it omits the necessary qualification that the judgment of the juror must be subjected to the reasoning and consultation of fellow jurors, and moreover compels adherence to opinion once it has been formed. Easter v. State, 191 Miss. 651, 4 So.2d 227, 137 A.L.R. 391; Cartee v. State, 162 Miss. 263, 139 So. 618.
Appellant contends that the verdict should not in any event be for a higher crime than manslaughter. It is sufficient to state in reply to this assignment that although the facts amply warrant a verdict of murder, both the defendant and the state received instructions authorizing the jury to designate the crime, if it be so found, as manslaughter. Other assignments are found to be without merit.
We do not find sufficient evidence of undue influence or any coercion which would deprive the defendant's confession of its voluntary character. We take occasion to state, however, that our affirmance of this case involves no approval or endorsement of the methods and procedure by which this testimony was procured. The confession in the instant case is found to have been properly submitted to the jury, and, being consistent with all physical facts and circumstances, is found worthy of acceptance by the trial jury. We do not think that counsel for appellant has followed an implausible course in directing his attack upon the confession as being the product of repeated questioning by officers of a defendant who had sought no other advisors than the inquisitors themselves. We do not, however, reject the confession in the instant case merely because it was procured under circumstances which in most cases are infected with abuse, threats and promises which compel an unwary defendant to become his own accuser.
The judgment will be affirmed, and the date of execution set for February 12, 1943.
Affirmed.