Opinion
No. 36245.
November 11, 1946. Suggestion of Error Overruled December 9, 1946.
1. CRIMINAL LAW.
Evidence of circumstances outside the confession of defendant established corpus delicti and sustained conviction of murder.
2. CRIMINAL LAW.
Evidence did not establish that confession of murder was extorted by fear.
3. CRIMINAL LAW.
Where it developed, while jury was being selected, that regular panel and special venire called for capital case had both been exhausted, denial of defendant's motion to call additional jurors from general jury box was fairer to defendant than sustaining the motion would have been, though it resulted in expenditure of defendant's two remaining peremptory challenges, when general jury box was so nearly depleted that many jurors would have had to be drawn from box of the district where the homicide occurred (Code 1942, secs. 1794, 1795).
4. INFANTS.
Where district attorney obtained juvenile court's permission to prosecute youths in circuit court for murder, refusal of circuit court to reopen the matter of transfer to juvenile court was not error (Code 1942, secs. 1792, 7204-7206; Const. 1890, secs. 27, 29, 156, 171, 225).
5. BAIL.
Statutes governing prosecutions of juveniles, if construed as giving juvenile court the right to offer refuge to juvenile capital offenders for reform, would be invalid under provision making all offenses bailable except capital offenses when the proof is evident or the presumption great (Code 1942, secs. 1792, 7204-7206; Const. 1890, secs. 27, 29, 156, 171, 225).
6. CONSTITUTIONAL LAW.
The court assumed that legislature, careful to consider the constitutionality of legislation, did not intend statutes in a sense that would render them invalid.
7. INFANTS.
Statutes governing circuit court's relinquishment of jurisdiction to juvenile court do not apply to capital cases (Code 1942, secs. 1792, 7204-7206).
APPEAL from the circuit court of Wilkinson county. HON. R.E. BENNETT, J.
Braden Coleman, of Natchez, for appellant.
The lower court erred in overruling the motion by defendant to reopen the hearing on transfer of the cause to the juvenile court, where defendant, when motion was made by the prosecution to proceed against defendant criminally, was not represented by counsel and no evidence was offered and there had been no investigation to determine whether or not the cause should be transferred to the juvenile court.
Parker et al. v. State, 194 Miss. 895, 13 So.2d 620; Farr v. State, 199 Miss. 637, 25 So.2d 186; Code of 1942, Secs. 7204, 7205, 7206.
The lower court erred in refusing to dismiss the jury and grant defendant a new trial after the trial judge, in the presence of the jury (partly selected), referred to the defendant in a prejudicial manner as a "colored boy."
Butler v. State, 146 Miss. 505, 112 So. 685; State of Missouri v. Jackson, 336 Mo. 1069, 83 S.W.2d 87, 103 A.L.R. 339; Taylor v. State, 50 Tex.Crim. R., 100 S.W. 393.
The lower court erred in overruling objections by defense counsel to the remarks of the trial judge concerning the death penalty where such remarks were couched in language likely to influence the jury to find the death penalty.
Garrett v. State, 187 Miss. 441, 193 So. 452; Fisher v. State, 145 Miss. 116, 110 So. 361.
The lower court erred in refusing to dismiss the jury after, on voir dire examination of Mr. Vincent Bellipani, candidate for the jury, the trial judge stopped Mr. Bellipani before he reached the jury box and, after questioning him, stated, "I was guessing that was true and it was for that reason that I had you stop where you were for this examination," when Mr. Bellipani had stated that he had a fixed opinion in the case.
The lower court erred in overruling a motion by the defense that whereas the special venire and the regular panel had been exhausted, that new jurors be called from the box as all spectators were interested in the case or otherwise would not be present in the courtroom, and where the defense had only two peremptory challenges left, and any juror drawn from the spectators or other than from the box would force the defendant to expend immediately his two remaining peremptory challenges and where, due to the overruling of the trial judge of the aforesaid motion by defendant, defendant was so forced to expend immediately his two peremptory challenges, and erred in refusing to dismiss the jury and grant a new trial to defendant where the defendant had exhausted all of his peremptory challenges and where it was impossible for a defendant to receive a fair trial because the jury was not called from the box as requested and overruled, and where of the five jurors called over such objection, three of them stated that they could not give the defendant a fair trial, including one juror who cried out in court, "I say death for him I ain't going to tell no lie, Judge. I would say hang him!"
Lee v. State, 138 Miss. 474, 103 So. 233; Arnold v. State, 171 Miss. 164, 157 So. 247; J.W. Sanders Cotton Mills, Inc., v. Moody, 191 Miss. 604, 2 So.2d 815; Code of 1906, Sec. 2688; Hemingway's Code of 1917, Sec. 2180; Code of 1942, Sec. 1795.
The lower court erred in admitting into evidence the confession of defendant where confession had been obtained by the sheriff and the district attorney from the defendant, a negro boy fourteen years of age, when defendant was alone and frightened and not represented by counsel nor by family nor by friends, and in refusing to instruct the jury to find the defendant "not guilty," where defendant was convicted solely on confession and there was insufficient corroborating testimony to take the case to the jury.
Brooks v. State, 178 Miss. 575, 173 So. 409; Gross v. State, 191 Miss. 383, 2 So.2d 818; Henley v. State, 192 Miss. 58, 4 So.2d 543.
The verdict of the jury which found the defendant guilty as charged and the sentence to electrocution, following said finding, were contrary to the weight of the evidence where defendant was a child of fourteen years and by the State's own testimony took no physical part in the killing of the deceased, which killing was the foundation of the murder charge against defendant, and where by the State's own testimony defendant left the deceased alive and without doing at any time any physical violence whatsoever to said deceased.
The lower court erred in refusing a change of venue where counsel for defense was unable to furnish the affidavits required by the statute because the family of defendant feared physical violence at the hands of incensed townspeople and where those of the citizenry who would otherwise be willing to make affidavits were afraid to do so because of fear of incurring community ill-will.
McGee v. State, 200 Miss. 350, 26 So.2d 680; Code of 1942, Sec. 2508.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
Where the question of the foreman of the grand jury's signature on the indictment was not raised in the court below, it could not be raised on appeal.
Pruitt v. State, 163 Miss. 47, 139 So. 861.
The corpus delicti was proven beyond a reasonable doubt even before the confession was offered, and the confession was in entire harmony with the facts establishing the corpus delicti.
By Section 156 of the Mississippi Constitution, the circuit court is given original jurisdiction in all matters, civil and criminal, in this State not vested by this Constitution in some other court, and such appellate jurisdiction shall be prescribed by law. The circuit court cannot be deprived of its constitutional jurisdiction and the legislature would have no power to compel a circuit court to transfer any cause on which said court had jurisdiction from that court to another court. The jurisdiction of the circuit court extends to every character of criminal cause and the legislature only has power to deprive the circuit court of trying misdemeanors of a petty nature under Section 171 of the Constitution, which gives the justices of the peace concurrent jurisdiction in his district with the circuit court over all misdemeanors. But it is provided in this section that the legislature may vest exclusive jurisdiction of petty misdemeanors in the justices of the peace courts or other inferior courts but this has never been done by statute, unless the juvenile court could be held to be such a court within the contemplation of Section 171, but which I submit it is not. The judge of the circuit court is made a judge of the juvenile court by statute and may transfer misdemeanors to the juvenile court for disposal under that statute; but he may not be compelled to transfer even misdemeanors to the juvenile court. The juvenile court has no jurisdiction to dispose of felonies in any manner. It is true that the legislature might provide that at a given age a child could not be subject to prosecution; that is, it could make a reasonable age one under which a crime would be no crime if committed by a person under such age. But nowhere in the statutes is there any authority for the transfer of a murder case from the circuit court to any court, even if this could be done.
Under Section 7204 of the Code of 1942, which was in force when this crime was committed, the legislature undertakes to confer on the judge power, whenever it appears to any criminal court of this State that any person being prosecuted in such court for a felony is a child under 18 years of age, to order such prosecution dismissed and to order such child committed to the juvenile court for such action and disposition as said juvenile court may think proper in the premises; or to give said court power, after conviction on trial of such child, to suspend judgment and order the defendant released on good behavior, or to make such other orders as, in the judgment of such court, would be for the best interests of said child. This section further provides that no child under the age of fourteen shall be prosecuted criminally. If this statute were valid, which I submit it is not, it still would be a matter entirely for the determination of the circuit judge and he could not prevent the punishment of a person for a grave felony such as murder, because so to do would be an encroachment upon the power to pardon vested in the governor as well as an encroachment upon the powers of the circuit court given by that section of the Constitution conferring jurisdiction in the circuit court as created by the Constitution to deal with criminal affairs.
The Constitution also provides, under Section 27, that no person for an indictable offense shall be proceeded against criminally except by indictment by the grand jury, but the legislature, in cases not punishable by death or by imprisonment in the penitentiary, may dispense with the inquest of the grand jury and may authorize prosecutions before justices of the peace or other inferior courts as may be established, and the proceedings in such cases shall be regulated by law. In other words, the grand jury is the constitutional body which functions to instigate prosecutions for all crimes, except where the legislature may provide for the exclusive jurisdiction of petty misdemeanors under Section 171 of the Constitution. As the law now stands, the grand jury is an independent body which must institute prosecution for felonies and no other body can institute such prosecutions. The grand jury also is a body which stands between the people and their officers to prevent unwarranted or tyrannical prosecutions because no officer, other than a grand jury, can prefer these serious charges against a citizen. While the grand jury is an arm of the circuit court and to some extent under the control of the circuit judge, yet it cannot be prevented from returning an indictment against any person who has violated the laws of the state. The grand jury would have power to indict the circuit judge or the governor or any other person holding office and no person or officer could prevent its doing so. On the other hand, the grand jury can refuse to return an indictment for a felony if it sees proper or thinks the public interest would not be prompted by filing an indictment. The grand jury cannot bind the succeeding grand jury but no court can coerce a grand jury to either file an indictment or to refuse to find an indictment. The grand jury is one of the great institutions of justice, coming from the body of the county where its members live and where the felonies it investigates are committed.
It was not necessary for the district attorney to secure permission to prosecute appellant and his co-indictee before the grand jury and in the circuit court. The intent of the law in creating the juvenile court was the protection and control of minors who had committed petty misdemeanors. The statute does not undertake to prohibit prosecutions or felonies in the circuit court and the judge had no power to bind either the grand jury or the district attorney from maintaining prosecutions. Should the judge have willfully undertaken to prevent the grand jury from returning bills of indictments or to compel them to indict in any given case, or should he undertake to prevent the district attorney from proceeding with prosecutions on indictments for a felony, he himself would be subject to indictment under Section 175 of the Constitution for misdemeanor in office. It would be a serious thing, a matter of law and order in the state, if the circuit court judge could prevent punishment of persons guilty of a felony.
The statute creating the juvenile court intended to reclaim delinquent children from criminal careers, who were guilty of petty misdemeanors, and to commit them to persons or institutions where they would be properly trained for the duties of citizenship, but it was not intended to shield persons above the age of fourteen years from prosecution for felonies. The statutes of this State have nowhere provided for the proceedings involved in the district attorney's application and have provided no rights for the defendant to be present at such hearing. That proceeding was in no wise of concern to the persons who had committed a felony and, if there was any discretion by which a felony prosecution could legally be suspended, it would necessarily be one for the circuit judge to determine and no rights of the defendant would be involved therein. It would prevent the obtaining of evidence before the grand jury to have a formal hearing before the judge in advance of hearing the evidence before the grand jury.
The defendants are negroes, frequently termed "colored people" and their presence in court before the jury would inevitably disclose their race as they would personally have to be present before the jury. There was nothing offensive or prejudicial or hurtful in applying the term "colored boys" to them.
The record does not show anything which could be termed an improper reference by the circuit judge to the punishment. What occurred seems to have been in reference to his examination of the jurors with regard to whether or not, if the evidence warranted it and the law inflicted the death penalty, they would respond, if convinced beyond a reasonable doubt of his guilt, to the process of the law. In no question anywhere in the record did the judge urge upon the jury the insinuation that the death penalty should be inflicted.
See Borowitz v. State, 115 Miss. 47, 75 So. 761.
The fourth assignment of error or ground for appeal is that the lower court erred in refusing to dismiss the jury after, on voir dire examination of Mr. Vincent Bellipani, candidate for the jury, the trial judge stopped Mr. Bellipani before he reached the jury box and, after questioning him, stated, "I was guessing that was true and it was for that reason that I had you stop where you were for this examination," when Mr. Bellipani had stated that he had a fixed opinion in the case. In this instance the judge merely remarked that he knew or thought he knew that the juror had a fixed opinion and for that reason he stopped and questioned him as to his qualifications as a proper juror. There is no error in these remarks.
There is nothing in this record to show any abuse of the jury laws or any harm occurring from the method used in completing the jury, which method, I think, was in conformity with the law.
See Code of 1942, Sec. 1795.
It is complained that one of the jurors being examined and disqualified, when asked if he had an opinion which would prevent him from being a fair and impartial juror, replied: "I say death for him. I ain't going to tell no lie, Judge. I would say hang him!" While this was improper as an answer by the juror, it was not such a remark as would influence men of good intelligence, sound judgment and fair character, which are the type of jurors designed by the law to be selected for trial of cases in court. No man of a reasonable type would be influenced by a remark of this kind because the mere remark brands as unreasonable and prejudiced the man who made it for only such a man would say a man was guilty regardless of the evidence or would insist upon the death penalty in a particular case regardless of whether or not the evidence proved the defendant guilty.
Confessions, otherwise competent, are not rendered incompetent by reason of the failure of the officer to advise defendant that a statement would be used against him.
Wohner v. State, 175 Miss. 428, 167 So. 622; Hitt v. State, 182 Miss. 184, 181 So. 331; Dick v. State, 30 Miss. 593; Carothers v. State, 121 Miss. 762, 83 So. 809; Jones v. State, 58 Miss. 349.
The law is well settled that the corpus delecti need only be established by the preponderance of evidence in cases where a confession is made and the confession plus the corpus delecti, taken together, would establish guilt beyond a reasonable doubt.
Counsel contends that the court should have changed the venue because counsel was unable to furnish the affidavits required by the statute because the family of the defendant feared physical violence at the hands of incensed townspeople and because those of the citizenry who would otherwise be willing to make affidavits were afraid to do so because of fear of incurring community ill-will. There is nothing in the record to show that there was any fear existing or that there was any reasonable ground for such fear. Certainly in any county of this state, if there was a public sentiment aroused by the horribleness of the crime for any other reason, that fact could be established sufficiently to present the question and the question cannot be raised in the absence of any proof of intimidation and fear justified by such circumstances as would make a reasonable man believe that danger existed.
A motion is at issue without formal pleading. In other words, it devolves upon the defendant to present proof to sustain a motion where he makes any motion in any proceedings.
Reed v. State, 143 Miss. 686, 109 So. 715.
This is a companion case to Trudell v. State (Miss.), 28 So.2d 124. Appellant and Trudell were indicted jointly by the grand jury of Wilkinson County for murder of Mr. Harry McKey, for whom they had been working for a few days. A severance was granted to Trudell, who was tried first, was convicted, and appealed. Appellant was also found guilty as charged. Under the statute it was the mandatory duty of the circuit judge to sentence both to electrocution, which he did. The facts of the homicide are outlined in the Charles Trudell case, and we will not further discuss them here.
It is contended in this case, however, that the corpus dilecti was not proven dehors the confession, which itself was inadmissible as not being free and voluntary. We have carefully considered the evidence, and are satisfied that the circumstances outside the confession are sufficient to sustain the jury's verdict, and to exclude every other reasonable hypothesis than that of guilt. We also find no justification for the plea that the confession was not free and voluntary but was extorted by fear. On the contrary, the officers went beyond the scope of their duty just to protect the appellant from any sense of coercion or intimidation, or ignorance of his rights. This assignment of error is overruled.
There are several other assignments of error, of which we feel it necessary to discuss only two. One of which is that after the case was called for trial, and the jury was being selected, appellant moved the court to call additional jurors from the jury box, since the regular panel and the special venire had both been exhausted, and appellant had only two peremptory challenges left. This motion was overruled and appellant immediately expended his two challenges. It will be noted that these matters developed after the grand and petit juries had all been empanelled, and during the course of the trial of this case itself. Sections 1794 and 1795, Code 1942, deal respectively with when the court shall order juries drawn, and special venire facias in capital cases. The former section was Chapter 304, Laws 1938, while the latter has appeared in our statutes for a long period of time. We considered Section 1794 in J.W. Sanders Cotton Mills, Inc., v. Moody, 191 Miss. 604, 2 So.2d 815. In that case the "main ground urged for reversal of the judgment is the action of the court in overruling appellant's motion to quash the panel for the week, from which the jury was to be drawn to try the case. Only twelve of the jurors drawn from the jury box qualified. The tales-jurors were summoned by a constable of the county, under the direction of the judge." This Court reversed that case because it violated the mandatory requirements of Chapter 304, Laws 1938, Section 1794, Code 1942. There was no such action here, to quash before the organization of the juries, and hence that case is not in point here.
Chapter 301, Laws 1938, now Section 1792, Code 1942, was construed by us in McCary v. State, 187 Miss. 78, 192 So. 442, where we held, in substance, that in a prosecution conducted during the third week of term, wherein it was found that the petit jury and talesman had been exhausted after eight jurors had been accepted by both sides, the action of the trial court in overruling a motion to draw requisite number of names to be summoned by the sheriff from the general jury box and in directing the sheriff to sumon 20 men to serve as jurors to complete the panel, was not error as against the contention that the statute required the circuit judge to draw from the general jury box of the county, under such contingencies. In the case at bar, the general jury box was so nearly depleted that many jurors would have had to be drawn from the box of the district where the homicide occurred, and in our judgment the action of the trial judge, under such circumstances, was fairer to appellant here than if he had sustained his motion. We, therefore, overrule this assignment of error.
The next assignment of error worthy of discussion is the contention of appellant that the trial court should have sustained his motion, but did not, to reopen the matter of transfer of the cause to the Juvenile Court. Before proceeding to seek indictment in the circuit court the district attorney had sought and obtained permission of the Juvenile Court to prosecute appellant in the circuit court for murder, under Sections 7204-5-6, Code 1942. We do not think it was error to overrule this motion. We have had these sections before us heretofore, but the Attorney General here for the first time raises the question of the constitutionality of these statutes, if interpreted to have application to capital cases, under several sections of the State Constitution, notably Sections 27, 156, 171. The first section provides for indictments by a grand jury; Section 156 confers upon the circuit court original jurisdiction in all matters, civil and criminal, not vested by the Constitution in some other court; and Section 171 deals with jurisdiction of petty misdemeanors.
Section 225 of the Constitution confers upon the legislature the power to establish a reformatory school or schools, and provides for keeping juvenile offenders from association with hardened criminals. But Section 29 of the Constitution directs that excessive bail shall not be required, and that all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses when the proof is evident or presumption great. If these acts be construed to confer upon the juvenile court the right to offer refuge to a juvenile capital offender for reform, then they must be declared unconstitutional, because then Section 29, supra, would interfere; and it would not be opposed by Section 225. We do not believe the legislature, careful to consider constitutionality of legislation, intended to provide as contended by appellant. He cites Farr v. State, 199 Miss. 637, 25 So.2d 186 in which we held that the application in these cases rested in the sound discretion of the trial judge, and if that case be applied here, we could not hold that the trial judge abused his discretion in refusing to turn this appellant over to the juvenile court. In the Farr case, the constitutionality of the statute was not attacked. We do not think the above statutes apply to capital cases, and since we are here considering only a capital case, we commit ourselves no further. We, accordingly, overrule this assignment of error.
It follows, therefore, that the judgment of the lower court must be affirmed, and Friday, December 13, 1946, is fixed for date of execution.
Sydney Smith, C.J., did not participate in this decision.