Opinion
No. 36839.
May 10, 1948.
1. JURY.
The sheriff is not required to locate and summon, at all events, every person drawn as juror, but impartial and zealous diligence to do so is sufficient.
2. CRIMINAL LAW.
The fact that one present in court and accepted as juror without challenge for cause was shown by sheriff's return of summons to be "not found" did not sustain assignment of error in failing to furnish defendant true copy of special venire, in absence of showing of sheriff's censurable failure to find such juror, his disqualification, or prejudice to defendant as result of juror's service (Code 1942, sec. 2505).
3. CRIMINAL LAW.
The fact that four jurors summoned failed to appear did not sustain assignment of error in failing to furnish defendant true copy of special venire, in absence of showing that he was prejudiced by such failure or the further compulsory process was resorted to without effect (Code 1942, sec. 2505).
4. CRIMINAL LAW.
The trial judge's inquiries on voir dire examination of jurors in murder case, as to whether they had conscientious scruples against capital punishment and would hold to standard of proof of guilt beyond reasonable doubt, did not constitute reversible error, especially where instructions all embodied correct rule.
5. CRIMINAL LAW.
Defendant's objection to statement of state's counsel to jury in murder trial that there was no evidence that defendant acted in defense of himself or his common-law wife as allusion to fact that defendant did not testify cannot be considered on appeal from conviction, where record contains no accredited disclosure of counsel's exact language or bill of exceptions saving point with certainty.
6. CRIMINAL LAW.
An instruction to find defendant guilty of murder, if jury believed from evidence that defendant feloniously effected deceased's death when neither defendant nor his common-law wife was in danger of great personal injury by deceased, was not erroneous because of failure to use statutory language "without authority of law", in view of use of word "feloniously" therein and definition of murder, without use of such language, and adequate statement of defense of self-defense, in defendant's instructions (Code 1942, secs. 2215, 2454).
APPEAL from the Circuit Court of Wilkinson County.
Clay B. Tucker, of Woodville, for appellant.
Any person indicted for a capital crime, if demanded by him by a motion in writing before the completion of the drawing of the special venire, shall have a copy of the indictment and list of the special venire summoned for his trial delivered to him or his counsel at least one entire day before said trial.
Boatwright v. State, 120 Miss. 883, 83 So. 311; O'Quinn v. State, 131 Miss. 511, 95 So. 513; Winchester v. State, 163 Miss. 462, 142 So. 454; Code of 1942, Sec. 2505.
The court should not make any statement upon the weight of the evidence and to do so is reversible error.
It is the duty of the court to see that a competent, fair and impartial jury is empaneled, and nothing can interfere with this duty, but the right of the parties of peremptory challenge, or of challenge for cause good and sufficient in law, is to be judged by the court.
McCarty v. State, 26 Miss. 299; Garner v. State, 76 Miss. 515, 25 So. 363; Dennis v. State, 96 Miss. 96, 50 So. 499; Berbette v. State, 109 Miss. 94, 67 So. 853; Mississippi Power Co. v. Stribling, 191 Miss. 832, 3 So.2d 807.
The whole trend of the voir dire examination in this case was to influence the proposed jurors against the defendant, and to strongly impress them with the idea that their duty was to convict. Each juror was given to understand that he would be a man of very little moral courage unless he found a verdict of guilty in this case. Such examination was erroneous, and very prejudicial to the defendant.
Nelson v. State, 129 Miss. 288, 92 So. 66; Leverette v. State, 112 Miss. 394, 73 So. 273; Green v. State, 97 Miss. 834, 53 So. 415; Collins v. State, 99 Miss. 47, 54 So. 665; Jones v. State, 84 Miss. 194, 36 So. 243; Williams v. State, 73 Miss. 820, 19 So. 826; Powers v. State, 74 Miss. 777, 21 So. 657; Lipscomb v. State, 75 Miss. 559, 23 So. 210, 230; 21 Enclycopedia of Pleading and Practice 994, 995, notes.
The evidence for the State as given by the only two eyewitnesses produced, showing plainly that the defendant only struck the deceased after being assaulted by a deadly weapon, a pistol, presents a case of self-defense, and the court on this evidence should have directed the jury to find the defendant not guilty.
Jarman v. State, 178 Miss. 103, 172 So. 869; Weathersby v. State, 165 Miss. 207, 147 So. 481; Walters v. State, 153 Miss. 709, 122 So. 189; Strahan v. State, 143 Miss. 519, 108 So. 502, Sides v. State, 96 Miss. 638, 51 So. 465; Combs v. State, 175 Miss. 376, 167 So. 54; Beasley v. State, 64 Miss. 518, 8 So. 234; Jackson v. State, 79 Miss. 42, 30 So. 39; Pigott v. State, 107 Miss. 552, 65 So. 583; Byrd v. State, 154 Miss. 742, 123 So. 867.
See also Done v. State, 202 Miss. 418, 32 So.2d 206.
Considering all the testimony for the State in its most favorable aspect, if the evidence does not make out a case of self-defense it can only be said that appellant struck this one blow in the heat of passion, brought on by a sudden combat. Therefore, under the evidence here the appellant was entitled to the instruction limiting the verdict of the jury to manslaughter.
Where all witnesses of homicide testified for the State, the statement of the district attorney that no one denied defendant killed deceased is comment on defendant's failure to testify, and error.
Smith v. State, 87 Miss. 627, 40 So. 229; Lambert v. State, 199 Miss. 790, 25 So.2d 477; Harwell v. State, 129 Miss. 858, 93 So. 366; Guest v. State, 158 Miss. 588, 130 So. 908; Gurley v. State, 101 Miss. 190, 57 So. 565; Harris v. State, 96 Miss. 379, 50 So. 626; Prince v. State, 93 Miss. 263, 46 So. 537; Drane v. State, 92 Miss. 180, 45 So. 149; Hoff v. State, 83 Miss. 488, 35 So. 950; Sanders v. State, 73 Miss. 444, 18 So. 541; Reddick v. State, 72 Miss. 1008, 16 So. 490; Yarbrough v. State, 70 Miss. 593, 12 So. 551; Winchester v. State, 163 Miss. 462, 142 So. 454; Code of 1942, Sec. 1691.
The court granted the State the following instruction: "The Court instructs the jury for the State that if you believe beyond a reasonable doubt from the evidence that the defendant, Charlie Davis, Jr., did on the day and in the manner charged in the indictment, feloniously and with deliberate design to effect death; and did effect death by stabbing with a knife, Bernice Bland, the deceased, at a time when neither person of the defendant or that of Lulu Mae Robinson were in danger of great personal injury from the design or hand of Bernice Bland, and that there were no iminent danger either real or apparrent of such design being accomplished, you are to find the defendant, the said Charlie Davis, Jr., guilty as charged." The instruction is fatally erroneous for it does not require the jury to believe beyond a reasonable doubt that Charlie Davis, Jr., did "with deliberate design" effect the death of Bernice Bland by stabbing with a knife, or as far at that is concerned, the jury was not required to believe beyond a reasonable doubt that Charlie Davis, Jr., did with his malice aforethought effect death by stabbing with a knife.
Kearney v. State, 68 Miss. 233, 239, 8 So. 292; Hunter v. State, 74 Miss. 515, 21 So. 305; Jackson v. State, 79 Miss. 42, 45, 30 So. 39; Lofton v. State, 79 Miss. 723, 31 So. 420; Woods v. State, 81 Miss. 164, 32 So. 988; Thames v. State, 82 Miss. 667, 35 So. 171; Ivy v. State, 84 Miss. 264, 36 So. 265; Rutherford v. State, 100 Miss. 832, 57 So. 224; Upton v. State, 143 Miss. 1, 108 So. 287; Code of 1942, Sec. 2215.
The verdict of the jury in this case is contrary to the law and evidence.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
No improper inference can be drawn from the record that the judge was partial or desired any particular sentence in the particular case.
A motion is at issue without further pleading and the movant must, to sustain his motion, introduce proof on such issue.
Reed v. State, 143 Miss. 686, 109 So. 715; Shaw v. State, 188 Miss. 549; 195 So. 581; Young v. State, 150 Miss. 787, 117 So. 119.
Counsel complains that he was not given a true copy of the special venire drawn for the trial of this case one entire day before the beginning of the trial. There is no showing of injury to the appellant or harm done him in any of the proceedings leading up to the trial.
Counsel also complains of an alleged statement by one of the prosecuting attorneys to the effect that there is no evidence in this record given by witnesses that the defendant acted in any manner in self-defense of himself or in defense of his common law spouse. No special bill of exceptions appears in the record stating what was said by the prosecuting attorney as required by law. A mere objection and statement in the record of the gist of the language complained of by the attorney for the defendant is not sufficient to present an argument for review and to put the trial in error.
Shaw v. State, supra.
Argued orally by Clay B. Tucker, for appellant, and by Geo. H. Ethridge, for appellee.
Appellant was convicted of murder, and from a verdict and judgment imposing a life sentence, he appeals.
The errors assigned are: (1) Failure to furnish defendant a true copy of the special venire upon request (Code 1942, Sec. 2505); (2) the remarks of the trial judge in qualifying the jurors on their voir dire; (3) certain remarks of the State's attorney in his argument to the jury; and (4) the State's instruction.
The first assignment. The objection to the list of jurors summoned relates to the circumstances that one of those drawn, Bernard Carter, was shown by the sheriff's return to have been "not found." However, he was present at court, placed upon the jury, and served on the panel. Two others listed as "not found," and four who appear to have been summoned did not appear.
There is no requirement that the sheriff must locate and summon, at all events, every person drawn. A diligence that is impartial and zealous is all that is required. There is no showing that there was any censurable failure to find the juror Carter, or that he was not duly qualified to serve as such. He was accepted without challenge for cause, and no prejudice is disclosed as a result of his service. There is no showing of prejudice from the failure of those summoned to appear, or that further compulsory process was restored to without effect.
The second assignment. In qualifying the jurors, the trial judge generally inquired whether the respective veniremen had conscious scruples against the infliction of capital punishment, and whether they would hold to the standard of proof of guilt beyond a reasonable doubt. A typical inquiry was as follows: "I am saying to you men the laws of the State of Mississippi provide that some offenses towit: murder, some cases of arson, some cases of robbery, some cases of rape the death penalty may be inflicted, but that is solely the responsibility of the jury and there are some people who do not believe in the death penalty under any circumstances whatsoever. That makes it necessary in empanelling a jury to try a case, a charge like this, would make it necessary for us to inquire of each juror whether or not he belongs to that class of people who do not believe in the infliction of the death penalty under any circumstances whatsoever. It is a conscientious matter with each man. I have heard said on some other occasion, even in some states it is not provided for at all but in Mississippi it is and all you men are being asked that question and the question is put this way: Mr. Chambers, do you belong to that class or do you have any conscientious scruples against the infliction of the death penalty if in your judgment, it is one that should be done?" It is in point that the jury did not impose the death penalty.
Upon the subject of the degree of proof, a typical inquiry was as follows: "The State is required, Mr. Hazlip, to prove to your entire satisfaction and you will require them to do that and until it has done that you will vote for acquittal, but when the State has convinced you beyond a reasonable doubt that the defendant is guilty then you are ready to vote for a conviction and not until then." Later versions of these inquiries were to the following effect: "Will you require the State of Mississippi to prove to your entire satisfaction beyond a reasonable doubt that the man is guilty before you will vote that way?"; and "Have you any conscientious scruples against the death penalty if in your judgment the evidence would warrant it?" The judge frequently referred to the rule of reasonable doubt at "The old rule." An example is as follows: "You will observe the same old rule we have heard ofttimes before, the State is required to prove to your entire satisfaction, beyond all reasonable doubt, this man's guilt before you will vote that way." Cf. Harris v. State, 179 Miss. 38, 47, 175 So. 342.
We find no reversible error here. There appears no reason why the characterization of the rule was belittling rather than reverential. Moreover, the instructions all embodied the correct rule.
The record contains the following objection by counsel for the defendant: "The defendant objects to the statement of counsel to the effect that there is no evidence in this record given to you by witnesses that the defendant acted in and manner in self-defense of himself or in self-defense of his common-law spouse Lulu Mae Robinson — being an allusion to the fact that the defendant did not testify and the defendant requests the Court to discharge this jury and call this case a mistrial." We have here presented a case where the record contains no accredited disclosure of the exact language. There was no bill of exceptions to save this point with certainty. Shaw v. State, 188 Miss. 549, 195 So. 581.
The fourth assignment. The following instruction was given for the State: "The Court instructs the jury for the State that if you believe beyond a reasonable doubt from the evidence that the defendant, Charlie Davis, Jr., did on the day and in the manner charged in the indictment, feloniously and with deliberate design to effect death; and did effect death by stabbing with a knife. Bernice Bland, the deceased, at a time when neither the person of the defendant or that of Lulu Mae Robinson were in danger of great personal injury from the design or hand of Bernice Bland, and that there were no imminent danger, either real or apparent of such design being accomplished, you are to find the defendant, the said Charlie Davis, Jr., guilty as charged." The objection is that it did not use the language found in Code 1942, Section 2215, "without authority of law." In view of the following considerations, the assignment is not deemed valid: it uses the word "feloniously." See Winston v. State, 127 Miss. 477, 90 So. 177. The defendant used the following definition of murder in his instruction, as follows: "That the killing of a human being with premeditated design and of malice aforethought is murder, and that the killing of a human being on sudden provocation in the heat of passion is manslaughter." Code 1942, Section 2454, states as follows: "In an indictment for homicide it shall not be necessary to set forth the manner in which or the means by which the death of the deceased was caused, but it shall be sufficient to charge in an indictment for murder, that the defendant did feloniously, wilfully, and of his malice aforethought, kill and murder the deceased. And it shall be sufficient, in an indictment for manslaughter, to charge that the defendant did feloniously kill and slay the deceased, concluding in all cases as required by the Constitution." Whether the killing was with or without authority of law depends upon a justification by self-defense. Such defense was adequately set forth in the defendant's instructions and rejected by the jury's verdict; the State's instruction, above quoted, concedes the right of self-defense or defense of another which is the only "authority of law" contended for by the defendant. Compare Butler v. State, 177 Miss. 91, 170 So. 148.
Other assignments of a general nature have been examined and found without merit.
Affirmed.