Opinion
No. 35594.
June 5, 1944.
HOMICIDE.
Evidence sustained conviction of murder as against defense of intoxication.
ON MOTION. (In Banc. December 11, 1944.) [20 So.2d 70. No. 35594.]CRIMINAL LAW.
Where date fixed for execution of death sentence had passed, but no mandate to trial court had issued on judgment of affirmance, Supreme Court still had jurisdiction to fix a new date for execution of sentence.
APPEAL from the circuit court of Rankin county, HON. PERCY M. LEE, Judge.
E.B. Todd and J.E. Franklin, both of Jackson, for appellant.
The only information in the record with reference to the circumstances surrounding the killing of Mr. Harrell is from the alleged free and voluntary confession of the appellant and the testimony of the appellant during the trial at Brandon, Mississippi, in January, 1944. According to the record the appellant was brought from the county jail on a Sunday morning and into the presence of many law enforcement officers, and others, in the office of the sheriff of Rankin County, Mississippi; there is no doubt in the mind of the writer that most, if not all, of these officers were armed; many of the officers denied being armed, but some of them admitted having their pistols in holsters at the time. For a long time, during the trial, it appeared that the appellant was not handcuffed during the alleged free and voluntary confession, but finally the witness W.H.D. Purvis admitted that the appellant was handcuffed, and in answer to the question as to who took the handcuffs off so he could sign the alleged confession, said, "Well, now, I ain't going to say who unlocked them handcuffs. There was several of us in there and I would not say who unlocked the handcuffs." We are not satisfied that under the circumstances surrounding the alleged confession there was a free and voluntary confession made by appellant on the occasion alleged by the state.
It is charged by the appellant that the court below erred in refusing to grant the instruction requested by the defendant, the appellant here, to the effect that the appellant could not be found guilty of murder on the evidence in the case.
The state offered witnesses with reference to the presence of whiskey in the automobile occupied by Mr. Harrell and the appellant on the afternoon and night of November 8, 1943, and with reference to the drinking of whiskey; the appellant says he drank lots of whiskey with Mr. Harrell on the afternoon and night of November 8, 1943, and that he was drunk and does not remember all that happened; that he took about five drinks of whiskey after arriving at Mr. Harrell's home; that he had no recollection of all that took place, and stated that he must have killed Mr. Harrell; that he did not remember leaving the house; that it all seemed like a kind of dream. The court will take notice of the uncontradicted testimony of the appellant as to his being so drunk at the time he did not recall what happened; that it seemed like a dream to him. The alleged confession was written after the officers had been to the scene of the homicide and had observed all details, and the confession is not in question and answer form, but narrative. If it be the law of the state that the appellant could not be guilty of murder if he were intoxicated to such extent as to not know what he was doing, then the granting of the instruction defining murder, viz: "The Court instructs the jury for the State that murder is the unlawful, willful and felonious killing of a human being with malice aforethought," is error. We raise this question: Under the evidence presented to the jury in the lower court, is this colored boy guilty of murder or of manslaughter?
The appellant did not seek out Mr. Harrell, but was picked up by him near Pelahatchie, Mississippi, on the afternoon of November 8, 1943; the appellant was given whiskey to drink, entertained all afternoon by a white man with whom he had been friendly and with whom he had worked for years; upon arrival at the home of Mr. Harrell the drinking continued, and the appellant killed him, no doubt while in a drunken stupor. It is our belief that this boy did not understand his act at the time; nowhere in the record is it disclosed that he attempted to hide or flee; but on the contrary it is clearly shown by all the witnesses that he remained in and around Pelahatchie, Mississippi, his home, where everyone had seen him with Mr. Harrell on that fateful day of November 8, 1943.
Greek L. Rice, Attorney-General, by Geo. H. Ethridge, Assistant Attorney-General, for appellee.
It appears from the statement made to the sheriff in the presence of numerous other persons that the appellant's recollection of what happened was clear and coherent. His statement was made at the solicitation of the appellant himself at a time when the other parties present when the statement was made were not present in the jail, only the sheriff and the janitor being then present, and then told the sheriff that he knew the sheriff knew that he was guilty and he wanted to tell him about it to ease his mind. Furthermore, the appellant's statement, subsequent to this, to the sheriff as to throwing the purse away was understood by appellant, and he was corroborated in these statements by the facts that the articles described by him were found where he said they were. Had the appellant been drunk to the extent that he did not know what he was doing when he killed and robbed the deceased, he would not have remembered these things. It appears without dispute that the appellant was with the deceased on November 8, being Monday, and that appellant knew that the deceased had a large sum of money, to-wit: $497, and that he took the purse from the deceased and threw it away, the purse having receipts and other papers in it, showing clearly that it was the deceased's purse and papers. Every physical fact corroborates the evidence about how the killing occurred. The last person seen with the deceased was the appellant and no reason or motive is found for any other person for committing such a crime.
The instructions given on behalf of the state are clear and correct.
It is clear beyond any doubt that the defendant deliberately murdered Roy Harrell for the purpose of getting his money. The confession made by him as to how the crime was committed is consistent with every fact in the case. Furthermore, the court in trying this case submitted to the jury specifically the law pertaining to his theory of defense, which instruction for the defendant reads: "The court instructs the jury for the defendant in this case that if you believe from the evidence herein that at the time of the killing of the deceased, Mr. Harrell, the defendant was intoxicated to such an extent as to be wholly incapable of forming the intent to kill and murder the deceased, with malice aforethought, then you should not find the defendant guilty of any crime greater than manslaughter in this case." The court gave an instruction, "that if the defendant killed Mr. Harrell in the heat of passion, without malice aforethought," they could find him guilty of manslaughter. There was no evidence from which these instructions should be required or be applicable, but were requested by the defendant and given by the court, and he had the law favorably announced from every angle.
The appellant, George Thornton, a negro soldier at home on furlough, was tried and convicted of the murder of Roy Harrell, his former employer, in Rankin County and was sentenced to death. The proof clearly established both the corpus delicti and the fact that the accused had made a free and voluntary confession of his guilt. Moreover, there were certain facts and circumstances testified to by the witnesses which disclosed that the confession was manifestly true, as for instance shortly after his arrest he had told the officers that immediately following his commission of the crime he had gone down the road from the home of the deceased to a point where the road turns to go out to the colored church and thence along a trail up into an old field, giving the approximate distances, and said that he had thrown the empty purse of the deceased off to one side of the road at the place where it was later found.
It was shown by the confession and the testimony of other witnesses that the accused was in company with said Roy Harrell throughout the afternoon before the latter came to his death at his home on the night of November 8, 1943; that they had been drinking together while riding about in Harrell's car; and that when it was suggested to Harrell by these witnesses that on account of his condition he had better stay off of the highway or he would likely be taken into custody by the highway patrolmen, the said Harrell replied that he had plenty of money with which to pay a fine, and thereupon requested the accused to tell these witnesses how much money he had helped to count shortly prior thereto, amounting to the sum of $495.
The accused admitted both in his previous confession to the officers and by his testimony on the witness stand that he accompanied Harrell to his home that evening shortly prior to the homicide, and testified at the trial, when asked if he killed Mr. Harrell, that "I am not sure. I was drinking and drunk and I don't know what happened. I must have, I don't guess there was anybody else there but me. I was not myself. I can't explain just what did happen." But in his confession he gave the details of the killing in such manner as to disclose that he had a very distinct recollection of the details as to what transpired at the scene, when he shot Harrell while the latter was lying on his bed asleep, and as to his actions immediately after the killing, when he threw the purse away, etc.
It having been clearly established beyond any reasonable doubt by all of the evidence that the appellant shot and killed Harrell under the circumstances disclosed by his confession and that he then removed the purse from his pocket and later extracted the money therefrom and threw the purse away near the roadside some distance from the house where it was later found when he accompanied the officers to that place, the verdict of the jury and judgment of the court below should be affirmed, since we find that no reversible error was committed on the trial of the case.
The date for the execution of the death sentence is hereby fixed for Thursday, July 20th, 1944.
Affirmed.
ON MOTION.
This is an appeal from a death sentence and the judgment of the court below was affirmed at the last term of this court 18 So.2d 296. Thereafter an appeal was taken by the appellant to the Supreme Court of the United States, which appeal was dismissed by that court on October 9th, pursuant to which its mandate has been issued and filed with the clerk of this court. The date fixed for the execution of the sentence herein having passed, a motion has been made by the Attorney General requesting us to fix a new date. No mandate to the court below has issued on our former judgment herein, consequently we still have jurisdiction of the case and the power to fix this new date. Cf. Simmons v. State, 196 Miss. 102, 16 So.2d 617.
The motion will be sustained, the sentence to be executed on Thursday, January 18th, 1945.
So ordered.