Opinion
No. 40480.
April 22, 1957.
1. Homicide — corpus delicti — amply established by evidence.
In homicide prosecution, corpus delicti was amply established, and the jury was warranted in believing that deceased came to his death through a criminal agency, and at the hands of the accused.
2. Criminal law — autopsy — motion of accused for an autopsy — properly denied.
Where decedent had suffered approximately 21 wounds and had had his skull cracked, and considerable blood had been found at scene of assault, no autopsy was necessary, and Trial Court committed no error in denying motion of the accused for an autopsy.
3. Juries — mistrial — action of Trial Judge in excusing selected juror on ground of critical illness in family — proper under circumstances.
Action of Trial Judge in excusing, out of presence of defendant, one of ten jurors who had been finally accepted, both by State and defendant, did not require granting of mistrial or that of a new panel of twelve jurors be tendered to defendant before he exhausted his one remaining peremptory challenge; and Trial Judge, who had excused juror on ground of critical illness in family, did not err in overruling defendant's motion for such relief and instead allowing him one additional peremptory challenge.
4. Juries — laws with reference to empanelling of jurors directory — appellate review.
The laws with reference to empanelling of jurors are directory, and no reversible error was committed by action of Trial Court complained of in this instance.
Headnotes as approved by McGehee, C.J.
APPEAL from the Circuit Court of Holmes County; ARTHUR JORDAN, Judge.
P.P. Lindholm, Lexington; J.A. White, Durant, for appellant.
I. Where, in a capital case, being tried with a special venire, after both the State and defendant had passed on and accepted ten jurors, and Court having then adjourned for the day, and defendant, being in custody in jail, and neither defendant or his counsel being present, or waiving any rights, it was reversible error, for the Trial Judge, sitting in a cafe, across the street from the courtroom, to order the sheriff to release one of the said ten accepted jurors, for a stated "sickness in the family" excuse; the defendant not only not waiving any rights, but on reconvening of the Court the next morning, entered objection to the action of the Trial Court, and to further procedure with trial, and amply disclosing prejudice to defendant's case. Warfield v. State, 96 Miss. 170, 50 So. 561; Sherrod v. State, 93 Miss. 774, 47 So. 554, 20 L.R.A. (N.S.) 509; Watkins v. State, 110 Miss. 438, 70 So. 147; Thomas v. State, 117 Miss. 532, 78 So. 147, Ann. Cas. 1918E 371; Pool v. State, 120 Miss. 842, 83 So. 273; Odom v. State, 172 Miss. 687, 161 So. 141; Hamburg v. State, 203 Miss. 565, 35 So.2d 324; Sims v. State, 209 Miss. 545, 47 So.2d 849; Willette v. State, 219 Miss. 793, 69 So.2d 407; Secs. 14, 26, Constitution 1890; Sec. 2519, Code 1942.
II. Under the State's own proof, the killing of the deceased, Vaudrell "Bud" Shanks, by appellant, without authority of law, and not in necessary self-defense, in the heat of passion, without malice, with a dangerous weapon, to-wit: an ordinary wooden bed slat, in an attempt to get the two drunks, deceased and his brother, Ernest Shanks, off his bed and out of his house at 2 o'clock in the morning, was no more than manslaughter, and it was prejudicial error for the Trial Court to refuse appellant's requested instruction that told the jury that they could not convict appellant of murder. Williams v. State, 127 Miss. 851, 90 So. 705; Sec. 2226, Code 1942.
III. It was prejudicial error for the Trial Court to overrule appellant's motion for a new trial, on the point that R.L. Kealhofer, a non compos mentis, adjudicated as such by a legal jury in October, 1933, and a ward of the Chancery Court of Holmes County, Mississippi, from that date up to and through the trial of the case at bar, was sworn in and acted as bailiff to the jury in the case at bar, without knowledge of said adjudication in either the appellant or his trial counsel, until after the jury verdict, herein. Secs. 159, 241, 250, Constitution 1890; Sec. 437, Code 1942.
IV. Where the State had two witnesses, A.L. Gibson, an experienced undertaker and embalmer, and Andrew P. Smith, the sheriff of the county, who could, and did, give exhaustive detailed testimony as to the number, location, and extent of the wounds on the body of deceased, it was prejudicial error for the Court to allow, over the objections of defendant, the gruesome and inflammatory photographs and pictures of the deceased as he lay dead on the bed at appellant's home. Coleman v. State, 218 Miss. 246, 67 So.2d 304; West v. State, 218 Miss. 397, 67 So.2d 366; 20 Am. Jur., Sec. 729 p. 608; 32 C.J.S., Sec. 709 p. 611.
J.R. Griffin, Asst. Atty. Gen., Jackson, for appellee.
I. The Court did not err in overruling the appellant's motion to discharge the jury and enter a mistrial; the appellant assigning as reason for said motion that the Court discharged a juror at a time when ten jurors had been accepted by both sides and the eleventh juror had been accepted by the State. Jefferson v. State, 52 Miss. 767; Parker v. State, 201 Miss. 579, 29 So.2d 910; Sullivan v. State, 155 Miss. 629, 125 So. 115; Mississippi S.V. RR. Co. v. Brown, 160 Miss. 123, 132 So. 556; Secs. 1764, 1796, 1798, Code 1942.
II. The State met the burden of proof imposed upon it. Howard v. State, 212 Miss. 722, 55 So.2d 436; Ceary v. State, 204 Miss. 299, 37 So.2d 316; Jones v. State, 228 Miss. 458, 88 So.2d 91; Jackson v. State, 228 Miss. 604, 89 So.2d 626; Freeman v. State, 228 Miss. 687, 89 So.2d 716; Sec. 3902, Code 1942.
III. There was no error in admitting the photographs into evidence. Jones v. State, 228 Miss. 296, 87 So.2d 573; Wheeler v. State, 219 Miss. 129, 63 So.2d 517, 68 So.2d 868, 70 So.2d 82; Price v. State (Miss.), 54 So.2d 667; Ceals v. State, 208 Miss. 236, 44 So.2d 61; Hancock v. State, 209 Miss. 523, 47 So.2d 883; Willett v. State, 224 Miss. 829, 80 So.2d 836; West v. State, 218 Miss. 398, 67 So. 366.
The appellant, James Upshaw, was indicted for the murder of one Vaudrell (Bud) Shanks. He was tried and convicted, and was sentenced to serve a life term in the state penitentiary.
Both the deceased and the accused were white men, approximately 40 years of age, and had not entertained any illwill toward each other prior to the occasion of the homicide. In fact, their previous acquaintance was merely casual.
The assault made by the accused, James Upshaw, on Bud Shanks occurred on the night of October 9, 1956, between 12:00 and 2:30 A.M. at the home of the accused, where he lived alone, near the small village of Richland in Holmes County. The deceased, Bud Shanks, had been severely beaten by the accused with a bed slat, but his death did not occur until up in the forenoon of October 10, 1956, after he had been found at or near his pickup truck in front of the home of the accused.
It was shown by the testimony of Ernest Shanks, brother of the deceased, as a witness for the State, that the witness and Bud Shanks had traveled in the latter's Ford pickup truck from their home about 15 to 20 miles west of Richland to the home of accused; that the journey took approximately 3 hours while they were both drinking "moonshine" corn whiskey from a gallon jug or glass bottle, containing at the time a remnant of about one and one-half pints of such whiskey; that when they arrived at Gage's store at Richland they continued drinking their whiskey and also drank some beer; that at about 4:00 o'clock that afternoon Ernest Shanks drove Bud's pickup truck to the accused's home, leaving Bud at the said store, drunk; that the accused not having then returned home from work, later arrived and found the witness asleep in the truck parked in front of the house of the accused; that the accused upon learning that Bud Shanks was still at Gage's store drunk, took the pickup truck and went alone to the store and brought Bud back with him to his house; that thereafter the accused and the witness went to the home of a negro tenant by the name of Percy (Rock) Wade where they ate their supper, and from where the negro brought a meal to Bud at the home of the accused; that later in the night they decided to get another gallon of whiskey, which was located and procured by the negro who was accompanied on the errand by the accused and the witness Ernest Shanks, the said Bud Shanks remaining at the home of the appellant; that after drinking from this second gallon jug or glass bottle of moonshine corn whiskey until after midnight, the witness and Bud Shanks lay down on the only bed in the house of the accused until the latter procured the bed slat from a stack of bed slats on the floor in the room, and said to his three visitors, "You s____ o____ b____ (plural), get the hell out of here and go home."
Since there had been no previous ill-feeling indicated between the parties, the jury was warranted in reasonably believing that the accused, who had been sitting on the floor with the negro while the Shanks brothers were continuing to occupy the bed of the accused, became exasperated and wanted his bed since it was then far past midnight and he had been at work on the day before and evidently intended to go back to work during the following day. At any rate, the accused, according to the testimony of the witness Ernest Shanks, suddenly began beating the witness with the bed slat, with the result that both the witness and the negro immediately left the scene, went to the home of the negro and went to bed.
Before leaving the scene the witness Ernest Shanks says that as he was leaving the home of the accused he saw him through the window beating Bud Shanks with the same bed slat. The action of the witness is somewhat unexplainable, except on the basis of fear and the injuries that he had just received, since he knew that his brother Bud Shanks was a disabled war veteran, weighing about 110 pounds and had bad eyesight, and was incapable of coping alone with his assailant.
On the next morning at about 9:00 o'clock the negro suggested to the witness that they should go to the home of the accused and see what had happened to Bud Shanks. Upon arriving at the home of the accused they found Bud Shanks sitting beside his truck, with his head against the wheel thereof, and helpless. The witness had observed his said brother going out of the house toward the truck as the witness was leaving there the night before, and had seen the accused continuing to beat him with the bed slat on the way out to the truck.
Thereupon the witness and the negro carried Bud Shanks into the house of the accused and placed him on the latter's bed. The witness then sent the negro to get a doctor and a constable, and the witness then departed into the woods where he remained until the second morning after the assault, and was then informed by the negro that his brother Bud Shanks was dead. The accused was absent from his home when Bud was discovered in a helpless condition at his truck in front of the home of the accused on the next morning after the assault, and it may be assumed that the accused had gone on about his work earlier that morning.
The sheriff listed the multiple wounds found on the body of the deceased when he examined him at the place of business of the undertaker. A physician made a sufficient examination of the body on the next morning after the assault to be able to testify that whoever inflicted the wounds was the person who had killed Bud Shanks. According to the testimony of the sheriff and the undertaker the deceased had suffered approximately 21 wounds inflicted by a blunt instrument, his skull had been cracked and considerable blood was found at the scene of the assault. In other words, the victim had been brutally and remorselessly beaten and left to die.
The accused did not testify at the trial in his own behalf nor did he introduce any other witnesses to testify for any purpose in his behalf.
(Hn 1) Clearly the corpus delicti was amply established, and the jury was fully warranted in believing that Bud Shanks had come to his death through a criminal agency, and the jurors were amply warranted in believing from the circumstances and the testimony of the witness Ernest Shanks that the man came to his death at the hands of the accused. No autopsy was necessary under the facts hereinbefore set forth. An inquest was had and the verdict of the jury was that Bud Shanks had come to his death at the hands of some person to the jurors unknown. (Hn 2) We are therefore of the opinion that no error was committed in denying the motion of the accused for an autopsy.
One of the grounds assigned for a reversal of the case is that after 10 jurors had been finally accepted to try the case the court adjourned until the next morning; that thereupon the circuit judge and the district attorney went across the street from the courthouse into a cafe to get something to eat before leaving for their respective homes. While there the sheriff came in and reported that Jack Barwick, one of the 10 jurors who had been finally accepted, both by the State and the defendant, had received word that his child was critically ill and that his presence was needed at home. Of course neither the defendant nor his counsel were present at that time, the defendant being in jail and the attorney being enroute from Lexington to his home at Durant. The circuit judge agreed with the sheriff for the juror to be excused for the reason stated. On the next morning when the defendant and his counsel learned that only 9 of the 10 men were left on the jury panel the attorney moved that the court enter a mistrial or that a new panel of 12 jurors be tendered the defendant before he exhausted his one remaining peremptory challenge The trial judge overruled the motion but allowed the defendant one additional peremptory challenge, leaving him two that had not been exercised. (Hn 3) We think that the judge did the only humane thing that was left for him to do under the circumstances. If the defendant and his attorney had been present at the time Mr. Barwick was excused, there would have been no valid objection that they could have rightfully urged against the action taken by the trial judge under the circumstances.
(Hn 4) We think that under Section 1764, Code of 1942; Parker v. State, 201 Miss. 579, 29 So.2d 910; Sullivan v. State, 155 Miss. 629, 125 So. 115; Mississippi S.V.R. Co. v. Brown, 160 Miss. 123, 132 So. 556; and Section 1796, Code of 1942, the laws with reference to empanelling of jurors are directory, and that therefore no reversible error was committed by the action of the trial court complained of in this instance. The judge was not passing on the qualifications of or empanelling this juror, who had already been adjudged to be qualified as a member of the jury panel, but was merely exercising his statutory right to excuse the juror because of the serious illness of a member of his family.
We do not think that any of the other errors assigned are well taken. Therefore the case should be affirmed.
Affirmed.
Lee, Arrington, Ethridge and Gillespie, JJ., concur.