Opinion
No. 35368.
February 14, 1944.
1. CRIMINAL LAW.
Where there is substantial evidence tending to prove corpus delicti, although not sufficient to prove it beyond a reasonable doubt, confession is admissible for that purpose.
2. CRIMINAL LAW.
In prosecution for murder of aged but unusually active man whose charred body was found in burned ruins of his home, evidence sufficiently proved corpus delicti to make confession admissible, and all eivdence, including confession, sufficiently established corpus delicti to authorize conviction.
3. CRIMINAL LAW.
Overruling of accused's motion for change of venue was discretionary in absence of substantial evidence that public had prejudged case against accused.
4. CRIMINAL LAW.
Conviction will not be reversed for overruling of motion for change of venue in absence of abuse of discretion.
5. CRIMINAL LAW.
Overruling accused's motion for continuance because of absence of witness was not reversible error, where witness allegedly overheard officer's statement indicating confession was not voluntary, and where witness had moved to another state and there was no evidence that he could be induced to return to testify.
6. CRIMINAL LAW.
A conviction will not be reversed for refusing a continuance unless accused is thereby prejudiced.
7. CRIMINAL LAW.
A requested instruction that before jury could convict accused it must believe beyond a reasonable doubt "all these things" without regard to purported confession was properly refused.
APPEAL from the circuit court of Jefferson Davis county, HON. J.C. SHIVERS, Judge.
C.E. Conner, of Columbia, and W.J. Hatten, of Sumrall, for appellant.
The court erred in not sustaining the defendant's motion for a continuance.
The court erred in overruling the defendant's motion for a change of venue. In order for a defendant to be entitled to a change of venue it is not necessary that it shall appear that every otherwise qualified juror in the county where the offense is charged to have been committed has prejudged the defendant's case or bears a grudge or ill will against him, and the defendant should not be denied a change of venue, although it may appear that twelve unbiased men may be found in the county to try him. The statute contemplates that the jury shall not only be composed of unbiased and impartial men, but of men who have not been and will not during the trial be subject to the influence of a popular demand for the defendant's conviction.
Keeton v. State, 132 Miss. 732, 96 So. 179; Brown v. State, 83 Miss. 645, 36 So. 73; Tennison v. State, 79 Miss. 708, 31 So. 421.
The third assignment of error is that the court permitted the introduction in evidence of various articles such as burned keys, a burned knife, and pieces of charred bone that were found in the ashes where the home of D.J. Broom burned; and also the introduction in evidence and exhibition to the jury of an axe purported to be the property of D.J. Broom and which was found in the woods where John Lovelace had directed the officers. We think the court erred in permitting the introduction of these articles and their exhibition before the jury, for the reason that a careful examination of the record will reveal that there is not one scintilla of evidence that in any manner connects the appellant with any of these exhibits and their exhibition before the jury was highly prejudicial to his case.
The fourth and fifth assignments of error both go to the corpus delicti. It is a well settled principle of law that before a confession is admissible in proof before the jury the corpus deliciti must be proven. This principle of law is so well settled that we will not take the space to cite authorities.
It is true that when there is a confession the proof required is much slighter than when it is unsupported by confession, as held in Keeton v. State, 175 Miss. 631, 167 So. 68, and in Perkins v. State, 160 Miss. 720, 135 So. 357, and many other cases, but these two cases are the strongest cases for the state that we have been able to find. Both hold that the corpus deliciti must be proven aliunde the confession of the accused before the introduction of such a confession is admissible. These cases have gone as far as it is possible to go in the admission of such confession on slight proof of the corpus deliciti.
We submit that in this case there was no testimony whatsoever against the defendant exclusive of the confession; that there is no proof of the death of the deceased so far as we know or can determine from the evidence introduced by the state and so far as we are able to determine there is not one scintilla of evidence that goes to show that D.J. Broom is dead so far as this record is concerned. Certain it is that there is no evidence whatsoever against this appellant in the case other than the confession, and the authorities are universal throughout the Nation that in order to introduce a confession first there must be evidence introduced aliunde to convince the minds of the jury at least by a preponderance of the evidence.
Hogan v. State, 127 Miss. 407, 90 So. 99; 7 R.C.L. 774 et seq.
Livingston Livingston, of Prentiss, and Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
The granting of a change of venue is a matter so largely in the discretion of the trial court that a judgment of conviction will not be reversed on appeal on the ground that a change of venue has been refused, unless it clearly appears that the trial court abused its discretion.
Dalton v. State, 141 Miss. 841, 105 So. 784; Regan v. State, 87 Miss. 422, 39 So. 1002; Bishop v. State, 62 Miss. 289; Stewart v. State, 50 Miss. 587.
The granting or overruling a motion for a continuance is in the discretion of the trial judge, and unless the defendant is prejudiced by such ruling there will be no reversal by the Supreme Court.
Cox v. State, 138 Miss. 370, 103 So. 129; Lamar v. State, 63 Miss. 265; Ware v. State, 133 Miss. 837, 98 So. 229; Sanders v. State, 141 Miss. 289, 105 So. 523; Continental Ins. Co. of City of New York v. Brown, 142 Miss. 199, 106 So. 633.
In felony cases the corpus delicti must be proved by evidence aliunde the confession of accused, but a confession which has been introduced may be considered with other evidence to establish the corpus delicti.
Perkins v. State, 160 Miss. 720, 135 So. 357; Ellis v. State, 65 Miss. 44, 3 So. 188, 7 Am. St. Rep. 634; Lee v. State, 137 Miss. 329, 102 So. 296; Pitts v. State, 43 Miss. 472; Heard v. State, 59 Miss. 545; Walker v. State, 127 Miss. 246, 89 So. 921; Patterson v. State, 127 Miss. 256, 90 So. 2; Garner v. State, 132 Miss. 815, 96 So. 743; Wood v. State, 155 Miss. 298, 124 So. 353; Pope v. State, 158 Miss. 794, 131 So. 264; Compare Barron v. State, 111 Miss. 231, 71 So. 374; Gross v. State, 191 Miss. 383, 2 So.2d 818; Keeton v. State, 175 Miss. 631, 167 So. 68; Greenlee v. State, 188 Miss. 387, 195 So. 312.
The corpus delicti need not be proved beyond a reasonable doubt by evidence aliunde defendant's confession, but can be proven by the preponderance of the evidence or by evidence amounting to a probability, in which event confession will be received.
Gross v. State, supra.
Argued orally by C.E. Conner, for appellant, and by W.H. Livingston, for appellee.
On the night of November 22, 1942, the home of D.J. Broom in Jefferson Davis County was burned to the ground, and he was burned up in it. Appellant Phillips and one John Loveless were suspected of committing the crime of the murder of Broom by that means. They were indicted for the crime of murder and tried separately. Loveless was convicted and sentenced to the penitentiary for life, and Phillips convicted and sentenced to be electrocuted. From that judgment he prosecutes this appeal.
Phillips' conviction was based principally on his own confession of guilt. It is argued that his confession should not have been admitted in evidence because the corpus delicti was not first sufficiently proven. The deceased Broom was about 82 years of age. His wife had been dead approximately 7 years. His home was in the country. He lived alone. He did the necessary work about his home, including cutting his fire wood. He sometimes walked several miles. He was unusually active physically and mentally for a man of his age. He had a pistol which he kept under his pillow on his bed, and an axe, which he kept about the place. After the fire the pistol could not be found and the axe was found several hundred yards away from the home. His burned and charred remains were found in front of the fireplace where he habitually sat and nearby his bunch of keys and pocket knife. The fire took place between 8 and 9 o'clock at night. About 3 o'clock that afternoon one of his grandsons who lived near brought his supper to him, which was prepared and sent by his daughter, the mother of the child. The grandson remained with him until between 4 and 5 o'clock, when he went back home. When the grandson left Broom was in the yard cutting firewood with the axe. He was never seen by any one after that. His physical and mental condition was such as to indicate that if the fire was accidental he would have extinguished it before any harm was done. Phillips did not testify. The only evidence in conflict with his confession was that of Mrs. Ward, she testified that he spent the entire night of the fire in her home, including the period between 8 and 9 o'clock. The evidence was sufficient to show that the fire and Broom's resulting death were of incendiary origin.
Phillips' confession was free and voluntary. He stated that he and Loveless went that night between 8 and 9 o'clock to the home of Broom for the purpose of robbing him of money he was supposed to have, and if necessary to accomplish that purpose to take his life and burn his home; that accordingly he, Phillips, knocked him in the head with an axe, from which blow he fell over on the floor. They searched for money and found none, and then set the house afire and left. That he did not know whether Loveless found any money or not, if he did he did not give him any part of it. One of the principal grounds relied on for reversal is that the corpus delicti was not sufficiently proven, and for that reason the confession should have been excluded. Our court and others are committed to the principle that where there is substantial evidence tending to prove the corpus delicti, although not sufficient to prove it beyond a reasonable doubt, the confession is admissible for that purpose. Perkins v. State, 160 Miss. 720, 135 So. 357; Gross v. State, 191 Miss. 383, 2 So.2d 818; Keeton v. State, 175 Miss. 631, 167 So. 68. Applying that principle here, it is manifest that the corpus delicti was sufficiently proven.
Appellant made a motion for a change of venue, which was overruled. That action of the court is assigned and argued as error. It is without merit. There was no substantial evidence to show that the public had prejudged the case against the appellant. Unless the action of the court in that respect was an abuse of discretion there is no ground for reversal of the judgment. Dalton v. State, 141 Miss. 841, 105 So. 784; Regan v. State, 87 Miss. 422, 39 So. 1002; Stewart v. State, 50 Miss. 587.
The action of the court in overruling appellant's motion for a continuance on account of the absence of one Hodge is assigned and argued as error. That contention is also without merit. Hodge had been a citizen of this state but had removed to the State of Louisiana. There was no evidence that he could be induced to come to this state and be a witness in the case. Appellant claimed that he could prove that Hodge overheard some statement from an officer that indicated appellant's confession had not been voluntary. The judgment will not be reversed for refusing a continuance unless the accused is thereby prejudiced. We do not think that is true here. Cox v. State, 138 Miss. 370, 103 So. 129; Sanders v. State, 141 Miss. 289, 105 So. 523.
The court refused an instruction requested by appellant, which concluded with this language: "In this connection you are further charged that before you can convict a defendant of anything you must so believe (beyond a reasonable doubt) all these things without regard to the purported confession of the defendant." What has been said with reference to proving the corpus delicti in part by the confession disposes of this assignment.
What has been said disposes, of course, of the contention that the appellant was entitled to a directed verdict.
The other assignments of error are so manifestly without merit that we refrain from discussing them.
Affirmed and Tuesday, March 28, 1944, set for the date of execution.