Opinion
No. 30725.
January 8, 1934.
1. CRIMINAL LAW.
Where conviction is had on record showing evidence for prosecution to be weak and that of defendant cogent and consistent, Supreme Court must examine transcript in minutest detail to ascertain whether something not according to law of land turned verdict upon attenuated testimony.
2. HOMICIDE.
Defendant's conviction could not stand where evidence of prosecution was weak, defendant and all witnesses to homicide were jointly indicated, and indictment of two such witnesses was not authorized by any evidence, but must have been returned to discredit them as witnesses and to cripple defendant's defense.
APPEAL from Circuit Court of Sunflower County.
J.O. Eastland and S.E. Ormond, of Forest, and W.C. Eastland, of Doddsville, for appellant.
The evidence is wholly insufficient to sustain the verdict of guilty.
Davenport v. State, 144 Miss. 273, 109 So. 707; Richard Givens v. State, 109 So. 741; Weathersby v. State, 147 So. 481; Kelly v. State, 147 So. 487.
It has been for some time the established rule in this state that where the defendant or the defendant's witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge.
Houston v. State, 117 Miss. 311, 78 So. 182; Patty v. State, 126 Miss. 94, 88 So. 498; Wesley v. State, 153 Miss. 709, 122 So. 189; Gray v. State, 158 Miss. 266, 130 So. 150.
The court erred in overruling the motion of appellant to furnish the jury with a copy of the indictment with the names of defendant's three co-defendants deleted therefrom.
Stevens v. Stanley (Miss.), 122 So. 755; Stewart v. Coleman Co., 120 Miss. 28, 81 So. 653; Chrichton v. Halliburton Moore (Miss.), 122 So. 200. B.B. Allen and P.W. Allen, both of Indianola, for appellant.
Taken in its most favorable light, the state wholly failed to make out any sort of a case against this appellant, and the motion of the appellant to exclude the evidence offered on behalf of the State and to discharge the appellant, should have been granted.
There is no better settled principle of law in this State than that the juries and the courts alike are bound by uncontradicted reasonable testimony.
Stevens v. Stanley, 122 So. 766; Purvis v. Woodward, 29 So. 917; Stewart v. Coleman Co., 81 So. 653, 23 C.J. 47; Crichton v. Halliburton Moore, 122 So. 200, 22 C.J. 485; M.M. K.C. Ry. Co. v. Jackson, 46 So. 142; Kelly v. State, 147 So. 487; Weathersby v. State, 147 So. 481; Houston v. State, 117 Miss. 311; Patty v. State, 126 Miss. 94; Wesley v. State, 153 Miss. 357; Walters v. State, 153 Miss. 709; Gray v. State, 158 Miss. 226.
W.H. Maynard, Special Agent, for the State.
Appellant's motion for a peremptory instruction should not have been granted.
The appellant's and his witnesses' version of the killing was not reasonable; said testimony was contradicted in material particulars by credible witnesses for the State; and said testimony was substantially contradicted by the physical facts.
McGehee v. State, 138 Miss. 822, 104 So. 150; Grady v. State, 144 Miss. 778, 110 So. 225; Smith v. State (Miss.), 147 So. 482.
From the authorities cited and the facts of the instant case, it seems too clear for argument that the lower court did not err in overruling appellant's motion for a peremptory instruction. All the facts of the record serve to substantiate our position that the Kelly and Weathersby cases are not contrary to that contention.
Trial court's action in allowing indictment to be carried into jury room was not error.
This indictment was a part of the record in the trial of State of Mississippi v. Ben Turner and the court was well within its province in allowing said indictment to be taken by the jury.
Section 584 of the 1930 Code of Mississippi.
Argued orally by W.C. Eastland, for appellant, and by W.H. Maynard, for the State.
There are a number of assignments of error in regard to the details of the trial, but upon examination of them we have concluded that no one of them, separately considered, constitutes reversible error. Nor do we think that the peremptory instruction should have been given. There was enough evidence, although barely enough, to escape that instruction. But the motion for a new trial should have been granted on the assigned ground that the verdict is contrary to the great or overwhelming weight of the evidence.
The case is weak on all its facts, the prosecution hangs on slender threads, whereas the evidence for the defendant is of cogent and consistent strength throughout, with corroboration upon every material issue. When there has been a conviction on such a record, it is our duty to examine the transcript in the minutest detail, and, far removed as we are from the influences and forces which sometimes operate in mysterious ways in and around a local trial, we must with an impartial solicitude seek to ascertain whether or not there was something, not according to the law of the land, which may have turned the verdict upon such slender and attenuated testimony. We find several such indications in this record, but we will mention only one of the several occurrences, since the one we select for mention will give an insight into what happened.
The indictment was returned in this case on March 21, 1933. At the same term and on April 5, 1933, the defendant was put to trial. The defendant was not separately indicted, but jointly with him and in the same indictment every one of the witnesses to the homicide was indicted; and not only, but another person, Milo Moten, was also included in the joint indictment, all for murder. Milo Moten was not even present, and his only offense was that he had been in the company of the defendant earlier in the evening, and hearing of the homicide went to the dead body in a short while thereafter. It is manifest from this record that substantially all the facts that could be ascertained are shown in this transcript, and the facts show that there could not have been before the grand jury which returned this indictment a shred of evidence which would authorize the indictment as to Willie Hall and Milo Moten, if that evidence had been scrutinized by the grand jury with even a casual concern for the right.
The institution of the grand jury among our forefathers had as its greatest object the security of the subject against unfounded persecutions and arbitrary oppressions by the crown and those acting in the name of the crown. And it has been retained in all our constitutions in this country in the faith and hope that here it will ever remain as a means of protection against arbitrary and unfounded accusations and persecutions, whether of official oppression or private enmity. And thus the law is that grand jurors must not return indictments without evidence, and an indictment without substantial evidence is an assault, not only upon the rights of the citizen, but is a blow at constitutional government. Every person with the qualifications to be drawn on a grand jury knows and understands the fundamental truth of the above observations.
How then did Willie Hall and Milo Moten come to be indicted jointly with this defendant, since there was and is no evidence against them? The answer must be that it was to discredit them as witnesses and to cripple the defendant in making his defense. And since there was an influence moving in and around that courthouse of sufficient potentiality to get this improper thing done, shall we not have good and just reason to apprehend as a probability that the same influence was still in force at the same term of court when the petit jury came to the box, when we see other indications of unjust action, and when we see that a verdict of guilty was returned upon evidence so weak as this transcript carries?
Without further comment, we add only that we are not satisfied to allow this conviction to stand on this record, there being sufficient in it from many angles to introduce the probability that the verdict was not the true and impartial finding of an uninfluenced jury.
Reversed and remanded.