Smith v. State, 44322

• Decision Date: 24 April 1967
• Docket Number: No. 44322,44322
• Citation: 198 So.2d 220
• Parties: Will Allen SMITH v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 220

198 So.2d 220

Will Allen SMITH v. STATE of Mississippi.

No. 44322.

Supreme Court of Mississippi.

April 24, 1967.

Suggestion of Error Overruled May 22, 1967.

Prewitt, Bullard & Braddock, Vicksburg, for appellant.

Joe T. Patterson, Atty. Gen., by Guy N. Rogers, Asst. Atty. Gen., Jackson, for appellee.

INZER, Justice.

Appellant, Will Allen Smith, was indicted, tried and convicted of the crime of murder in the Circuit Court of Warren County. He was sentenced to serve a life sentence in the state penitentiary. From this sentence he appeals to this Court. We reverse and remand for a new trial because of an erroneous instruction.

The evidence in this case establishes that at about 2:30 p.m. on June 10, 1965, appellant shot and killed Mildred Mae Glidewell. Mrs. Glidewell was a waitress in a cafe known as 'Eat-A-Minute' in Vicksburg. Appellant and Mrs. Glidewell were on very friendly terms. In fact, it appears that they had planned to be married when she obtained a divorce from her husband. Appellant has secured the services of an attorney to represent her in such an action.

A short time before appellant shot and killed Mrs. Glidewell, he went to the cafe where she was working. Charles Pettway a friend of his, was in the cafe when appellant entered. They had a Coca-Cola together, and then walked outside the cafe. After a brief conversation with his friend, appellant went back into the cafe for a short time. He came back out, and talked with Pettway for a time. He then reached into his car, which was parked in front of the cafe, and removed therefrom a paper bag. He hurried back into the cafe. After entering, appellant removed a pistol from the bag and said, 'Mildred, I hate to do this.' He then shot Mrs. Glidewell five or six times. Appellant left the cafe and drove to the Warren County Courthouse, where he was arrested. After his arrest he made some statements to Chief of Police Sills. Appellant was having difficulty breathing, and was upset and crying. Sills asked him if he had talked with a lawyer, and Sills said that appellant stated to him, 'that he did not want to talk to a lawyer, that he wanted us to take him and put him in the electric chair.'

After further questioning Chief Sills became concerned about appellant's physical condition and caused him to be taken to a Vicksburg hospital where he was examined and observed by Dr. Karl Hatten. Dr. Hatten did not find anything physically wrong with appellant, but was of the opinion that he should have a psychiatric examination. Dr. Hatten tried to make arrangements to send appellant to the hospital at Whitfield, but when the hospital authorities discovered that he was charged with a criminal offense they would not accept him without a court order. Appellant was then lodged in jail where he remained until he was tried.

Appellant's defense was insanity. In support of that defense he introduced the testimony of two phychiatrists. They were Dr. Charles Rodney Smith and Dr. Andrew John Sanchez, Jr., both of whom practice their profession in the city of New Orleans, Louisiana.

Dr. Smith examined appellant on four separate occasions, and testified that in his opinion appellant was suffering from a major, medical psychiatric disorder which be labeled as a chronic, undifferentiated, type of schizophrenia. He was of the opinion that because of this disorder, at the time of the killing appellant was not capable of distinguishign right from wrong. He was also of the opinion that because of this condition appellant was a menace to society and should be confined to a mental institution.

Dr. Sanchez examined appellant on two occasions, and it was his opinion that the appellant was suffering from a major medical disorder which he diagnosed as schizophrenia chronic undifferentiated type, and because of this disease appellant was unable to distinguish right from wrong at the time he killed Mrs. Glidewell. He also thought appellant's condition was such that he was a menace to society, and that he should be confined to a mental institution. The State did not offer any expert medical proof, but relied upon lay testimony to prove that appellant was sane. This evidence was sufficient to make it a question for the jury to determine whether the State had met the burden of proving beyond a reasonable doubt that appellant could distinguish right from wrong at the time he shot and killed Mrs. Glidewell.

Before we discuss the erroneous instruction, there is one other error assigned by appellant which should be noticed. Appellant urges that the trial court was in error in failing to sustain appellant's plea of former jeopardy. He was indicted at the July 1965 term of court and his trial was set for July 19, 1965. On this date all the jurors were selected except an alternate juror. On the following day, after the alternate juror had been selected and before any evidence had been introduced, the state made a motion for a mistrial. The basis of this motion was that one of the bailiffs assigned to take care of the jury had overheard one of the jurors express an opinion that the appellant was insane. The trial court conducted a hearing on the motion, and after taking testimony, sustained the motion for a new trial. Prior to the trial at the next term of court appellant filed a plea of former jeopardy.

Mississippi Constitution article 3, section 22 provides:

No person's life or liberty shall be twice placed in jeopardy for the same offense; but there must be an actual acquittal or conviction on the merits to bar another prosecution.

We have held in a number of cases that there must be an actual conviction or acquittal on the merits to support the plea of former jeopardy. Harris v. State, 158 Miss. 439, 130 So. 697 (1930); Lovern v. State, 140 Miss. 635, 105 So. 759 (1925); Conwill v. State, 124 Miss. 716, 86 So. 876 (1920).

The trial court has the power and the duty to order a mistrial in case of legal necessity for so doing. It is clear from the testimony developed in the hearing that the trial judge was justified in sustaining a motion for a new trial. It was in the interest of justice that he do so.

However, appellant urges that the action of the trial court in sustaining the motion of the State for mistrial denied appellant due process by virtue of the provisions of the fourteenth amendment of the United States Constitution. We find no merit in this contention. In Brock v. State of North Carolina, 344 U.S. 424, 73 S.Ct. 349, 97 L.Ed. 456 (1952), the Supreme Court of the United States said in upholding a North Carolina decision which overruled a plea of former jeopardy that:

The question before us is whether the requirement that the defendant shall be presented for trial before a second jury for the same offense violates due process of law as required of the State under the Fourteenth Amendment. The question has been here before under different circumstances. In Palko v. State of Connecticut, supra (302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288), the defendant was first tried for murder in the first degree and was found guilty of murder in the second degree. Pursuant to a statute of Connecticut, the State appealed and obtained a reversal for errors of law at the trial. The defendant was retried, convicted of murder in the first degree, and sentenced to death. An appeal of this Court raised the question whether or not the requirement that he stand trial a second time for the same offense placed him twice in jeopardy, in violation of due process.

This Court held that the State...