Opinion
No. 36297.
April 14, 1947. Suggestion of Error Overruled May 19, 1947.
1. CRIMINAL LAW.
In prosecution for murder of designated victim, defendant's confession to such homicide was not inadmissible because it related the murders of victim's wife and 9-year-old child as well, all of which killings took place as part of the same transaction.
2. HOMICIDE.
The test of defendant's sanity is whether defendant had sufficient mental capacity at time of commission of homicide to distinguish between right and wrong as to particular act regardless of whether defendant is partially insane.
3. HOMICIDE.
In murder prosecution, where witness was not asked whether defendant had sufficient mental capacity to distinguish between right and wrong as to particular act charged, testimony that defendant was eccentric, passionate, excitable, and of low mentality was insufficient to raise real issue of defendant's sanity.
4. HOMICIDE.
Evidence authorized conviction of murder as against defense of insanity.
5. CRIMINAL LAW.
Where objections to improper argument by district attorney were sustained and jury was instructed to disregard the objectionable comments, in the absence of a motion for mistrial made in trial court, Supreme Court could not reverse conviction because of improper argument.
APPEAL from the circuit court of Lauderdale county. HON. JESSE H. GRAHAM, J.
Gilbert Cameron and Cecil Rogers, all of Meridian, for appellant.
The appellant's plea to the indictment at the time of the arraignment was not guilty by reason of insanity. This plea put the trial judge on notice of the defense of this action and brought forceably to his attention an ultimate question as to whether or not he should proceed with the cause on its merits or whether he should suspend proceedings and inquire into the mentality of the appellant.
The testimony of the State was without contradiction to the effect that the appellant was insane at the time of the commission of the offense. This testimony elicited from the State's eyewitness put the trial judge on notice concerning the mentality of the appellant at the time of the commission of the offense and the trial judge should have of his own motion suspended all proceedings and made inquiry touching the sanity of the appellant at the time of the commission of the offense.
Upon the entry of the plea to the indictment and upon the State's witness thus testifying, the burden was upon the State to show beyond a reasonable doubt that he was sane at the time of the commission of the offense. It is quite clear that in the absence of any contradictory proof touching the appellant's mentality at the time of the commission of the offense that this burden was in no wise met by the State and reversible error was committed by the court in submitting this question to the jury for the reason that there was no issue made by competent testimony.
Cunningham v. State, 56 Miss. 269; Carter v. State, 198 Miss. 523, 21 So.2d 404; Elmore v. State, 143 Miss. 318, 322, 108 So. 722; Wallace v. State, 143 Miss. 438, 108 So. 810; Keeton v. State, 175 Miss. 631, 645, 167 So. 68.
On the question as to the argument of the district attorney, it is respectfully submitted that this argument was directly in the face of the court's instructions and the appellant should not be denied the right to insist that prejudicial error was thereby committed merely because the appellant did not again ask the court to declare a mistrial. This record will show that the appellant's counsel practically exhausted himself throughout the trial of this case in making numerous motions to withdraw the case from the jury and to declare a mistrial. The appellant should not be denied the benefit of exception to the district attorney's argument simply because he did not again ask that a mistrial be declared. The trial judge by instructions had told the jury that the appellant was on trial for the death of one individual, whereas the district attorney repeatedly insisted in the face of the court's instruction that he was on trial for the death of all three of the individuals mentioned in the record. Nothing could have been more damaging to the appellant's case than these remarks of the district attorney.
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
Assignments of error which are not argued do not require review and are waived.
Coleman v. State, 198 Miss. 519, 23 So.2d 404.
Appellant contends that the court erred in overruling the motion to quash the special venire. From the record it appears that a special venire of sixty men were summoned and of these sixty, according to appellant's motion, only seventeen were in attendance. The court committed no error in overruling the motion.
Harrison v. State, 168 Miss. 699, 152 So. 494; Code of 1942, Sec. 1795.
Throughout the trial of this cause counsel for appellant registered many objections as to subsequent offense, and he now argues that the court erred in permitting to be shown separate and distinct prior offenses. However, a re-examination of the facts, which are fully supported by the confession of appellant, and which are not denied, shows that the shooting of the deceased the first time, at most, could only have been an assault with intent to kill and murder and that during the interim of ten to fifteen minutes the deceased was living and that when appellant returned to deceased's home to carry out his stated purpose, according to the testimony of his brother-in-law Pringle, to kill all of the family, he first killed deceased's wife, then the nine year old child, then the wounded Shermon Harper. This killing was all one continuous transaction.
See Mackie v. State, 138 Miss. 740, 103 So. 379.
Appellant contends that he was prejudiced by the argument of the district attorney. To this argument a special bill of exception was taken and allowed by the court, and excerpts from the argument filed. A reading of the bill of exceptions shows that the court sustained the objection of counsel for appellant to the argument of the district attorney and, on counsel's request, instructed the jury to disregard the argument. Counsel for appellant is in no position to complain about the argument as our Court has held in a number of cases that one cannot gamble with the verdict; that it was his duty when the court sustained his objection to the argument of counsel, if he thought his client was prejudiced, to make a motion for a mistrial. This he did not do. Therefore, under the circumstances the court did all that it was asked to do, sustained the objection to the argument and instructed the jury to disregard it.
Floyd v. State, 166 Miss. 15, 148 So. 226.
The appellant next contends that this conviction cannot be upheld for the reason that the appellant was insane at the time of the commission of the offense and also at the time of the trial. Upon arraignment the appellant entered a plea of not guilty by means of insanity. With all deference to counsel, I submit that this amounts to no more than a plea of not guilty or not guilty by reason of self-defense. Our Court has held that an oral suggestion of insanity or motion suggesting insanity was insufficient to raise the question in the absence of proof.
Skinner v. State, 198 Miss. 505, 23 So.2d 501; Keeton v. State, 175 Miss. 631, 167 So. 68; Davis v. State, 151 Miss. 883, 119 So. 805.
The only testimony in this case that would have any tendency whatsoever to show that the appellant was not a normal human being was brought out on the cross-examination of the first State witness, Lou Ellen Pringle, who was the sister of appellant, whose testimony, in substance, was that her brother, the appellant, was stupid, slow to learn, crack-brained, etc., and that when he was drinking whiskey it was almost impossible for anyone to control him. Neither the court nor the district attorney evidently thought this testimony credible as no evidence was offered specifically to the contrary. However, both the State and the appellant obtained a number of instructions to the jury dealing with the sanity of appellant. In the Davis case, supra, the Court held that it was not error to submit the issue of appellant's guilt along with the issue of his insanity where the jury correctly found that defendant was not insane. Counsel argues, however, that there was no issue as to his insanity as the State offered no evidence. The answer is that the State had a right and did rely upon the presumption of sanity in the absence of a plea of not guilty by plea of insanity.
Cunningham v. State, 56 Miss. 269, 275, 21 Am. Rep. 360.
Every man is presumed to be sane, and, in the absence of testimony engendering a reasonable doubt of sanity, no evidence of the subject need be offered; but whenever the question of sanity is raised and put in issue by such facts, proven on either side, as engender such doubt, it devolves upon the State to remove it, and to establish the sanity of the prisoner to the satisfaction of the jury, beyond all reasonable doubt arising out of all the evidence in the case.
Temple v. State, 165 Miss. 798, 145 So. 749; Pullen v. State, 175 Miss. 810, 168 So. 69; Wood v. State, 197 Miss. 657, 20 So.2d 661; Cunningham v. State, 56 Miss. 269, 275, 21 Am. Rep. 360.
No evidence of appellant's mental condition with reference to insanity was observed by the trial court.
See Carter v. State, 198 Miss. 523, 21 So.2d 404.
All of his words and acts show that he fully realized that he was committing a serious crime; that he tried to conceal it and to deceive and mislead the officers who were endeavoring to solve it.
Wood v. State, 197 Miss. 657, 20 So.2d 661.
After trial and conviction, motion was filed to defer sentence until appellant's sanity could be determined. This motion was overruled by the court; also motion for a new trial was filed, which was likewise overruled. the fortieth ground in the motion for a new trial again raised the question of sanity of appellant; likewise, the forty-first ground. No proof, affidavits or witnesses were offered in support of this motion.
See Young v. State, 150 Miss. 787, 117 So. 119; Reed v. State, 143 Miss. 686, 109 So. 715.
I submit that there could be no defense to a crime of this character unless it was insanity and there was no credible evidence offered which even tended to show that the appellant was insane at the time of the offense or at the trial. If there was any, then this question was submitted to the jury by a large number of instructions both on the part of the State and the appellant and their verdict is final.
Argued orally by C.B. Cameron, for appellant, and by R.O. Arrington, for appellee.
The appellant was convicted of the murder of Sherman Harper, and sentenced to death. Harper and appellant resided about one fourth of a mile apart. On Sunday afternoon, January 20, 1946, appellant was at Harper's home when an argument, offensive on the part of Harper, arose, whereupon appellant went to his home, procured a shotgun and returned. The quarrel was renewed in Harper's front yard and grew in intensity. Appellant was followed by his sister and her husband, and, when they arrived, they sought to quell the disturbance and so did Harper's wife, but without success. Harper's wife then brought to the door a shotgun, and when Harper started in the direction of the front steps and towards his wife in the door, appellant shot and wounded him; but Harper made his way nevertheless into the house where his wife, assisted by appellant's brother and his brother-in-law, laid the wounded man on a pillow, and the two men immediately left in a truck to seek aid and to notify officers of the law.
After shooting Harper, appellant immediately departed and went into a pasture a short distance away. When the two men started for help they met appellant at a distance from the Harper's house of about "two town blocks," and he stated to them that he was going back and "get all them sons of bitches." He did go back; kicked open the back door; wounded Harper's wife, and then turned upon the nine-year-old daughter, following her under the bed where he shot her at such close range as to sever her head from her body. Seeing that the wife was not dead, he shot her head off. During this time the wounded man, Harper, was protesting and threatening to kill appellant, whereupon appellant said he had as well finish him too, and he fired the gun so close to Harper's head and neck as to produce a result similar to that upon the other two victims. He slew all he found there.
The above facts, as to all that happened before appellant reached the house on his return for the slaughter, were shown by witnesses other than by appellant's confession. What he did on his return is shown by the officers, who a few hours later examined the place, and the bodies, and by appellant's confession. The officers failed to find appellant immediately, but about eleven or twelve o'clock that night, he came, or was brought, to the police station at the county seat, when he denied that he had done the killing but averred that his brother had done it. The next morning, however, his mother, his sister, his two brothers, and his brother-in-law appeared at the jail, and, in their presence, he made a full and detailed confession and went with an officer to the scene of the crime, and there re-enacted it.
There was no objection or suggestion that the confession was not entirely free and voluntary, and none that the actions of the appellant in returning to the scene with the officer were not free and voluntary. The objection to the confession was that it involved the commission of other crimes than that of the murder of Sherman Harper for which he was being tried; and throughout the trial appellant made the same objections as to any testimony which brought into view the murder of the wife and child. All these objections were correctly overruled by the trial judge, and no other authority is necessary on that point than Mackie v. State, 138 Miss. 740, 103 So. 379.
Appellant's main contention, and the one most earnestly urged by his counsel, is that enough was shown in the cross-examination of appellant's sister, who had been introduced as a witness by the State to raise a doubt as to appellant's sanity, and that the State proceeded nevertheless without any effort, preliminary or otherwise, to remove that doubt. The sister testified that appellant, who was between nineteen and twenty years old at the time of the trial, had entered public school at five years of age and continued therein until sixteen years old and had never in all that time advanced beyond the first grade. That he has never been "bright"; that "he just always had funny ways, crazy like"; that he would never associate with other children, and would say nothing to anybody unless first spoken to; that he was difficult to control; that sometimes his mother could do something with him but at other times she couldn't; that his mother as he grew to be a lad took him with her when she went to work "because she knew how he was, always kind of crack brained." The witness said further that sometimes appellant would listen to her, the sister, and that she had "kept him out of lots of trouble just talking to him, but that at times she could do nothing with him." She said that when he became angered, he would sometimes go into what she termed as "fits" and that in such frenzies he would strike members of the family "with sticks and things," but she added that after he had "come back to himself he would cry and be sorry for it." She said, too, that when he was drinking he was worse — "just make him crazy," and there was evidence that on this afternoon appellant had been drinking some, but not so much as to be obviously drunk. This witness said also that for about two or three years next before the homicide, appellant had been working at Mr. Baum's sawmill and that deceased also worked at that mill.
This is the only witness who testified on the question of appellant's sanity, and she was not asked whether he had sufficient mental capacity at the time to distinguish between right and wrong as to the particular act; and this has been the test in this state from Bovard v. State, 30 Miss. 600, on down to the present. And this test prevails although the defendant is partially insane. Hoye v. State, 169 Miss. 111, 119, 152 So. 644. In Garner v. State, 112 Miss. 317, 73 So. 50, it was said that although the defendant is shown to be eccentric, passionate and excitable, this would not be enough to raise a real issue as to his sanity, and that mere frenzy and ungovernable passion is not insanity within the meaning of the law. And this was all that was shown in the present case, except that here the proof further shows a case of low mentality; but low mentality, if still sufficient to meet beyond a reasonable doubt the affirmative of the test mentioned in the opening of this paragraph, is not insanity in the criminal law.
The jury was sufficiently instructed by several charges granted, at the request of the appellant, that they should acquit if from the testimony or the want thereof they entertained any reasonable doubt whether at the time of the homicide he was able to distinguish right from wrong. Work in and around a sawmill is no place for an imbecile, or even a half-wit, and where it is shown, as here, that the accused so worked for more than two years next before the time of the homicide, it would require more than was shown in this case to raise a doubt in the minds of a jury whether he had sense enough to discriminate between right and wrong in a case which would so remarkably challenge his sensibilities, as was the case here; and there are other features in the record which additionally support the conclusion of the jury on this issue as evidenced by their verdict.
Earnest complaint is made of improper argument by the district attorney wherein he persisted in comments contrary to the instructions and admonitions of the court. The special bill of exceptions shows that upon every objection to such argument the court sustained the objection and stated to the jury that they must pay no attention to the objectionable comments. Appellant, however, made no motion for a mistrial on account of the argument — in the absence of which we cannot reverse. Floyd v. State, 166 Miss. 15, 148 So. 226. See also Brush v. Laurendine, 168 Miss. 7, 150 So. 818.
We have considered all the assignments which have been argued and do not find enough in them to form a sound basis for reversal.
Affirmed, and Friday, May 23, 1947, is fixed as the date for the execution.