Armstrong v. State

• Citation: 174 So. 892,179 Miss. 235
• Decision Date: 07 June 1937
• Docket Number: 32671
• Court: Mississippi Supreme Court
• Parties: ARMSTRONG v. STATE

174 So. 892

179 Miss. 235

ARMSTRONG v. STATE

No. 32671

Supreme Court of Mississippi

June 7, 1937

Division B

Suggestion Of Error Overrruled July 1, 1937.

APPEAL from the circuit court of Jefferson Davis county HON. HARVEY MCGEHEE, Judge.

Dudley Armstrong was convicted for assault with intent to murder and he appeals. Affirmed.

Affirmed.

King & Berry, of Mendenhall, for appellant.

We respectfully submit that the lower court was in error in allowing the bullet to be introduced in evidence as an exhibit to witness McRainey's testimony over the objection of appellant for the reason that the same was not properly identified. A thing to be introduced into evidence must first be identified before it is competent. Just the broad, bare statement that he got it out of the car is wholly insufficient to identify it as being the same bullet that was fired out of the rifle that it is alleged that the appellant shot. So we say that the introduction of this bullet was incompetent evidence and therefore inadmissible against the accused over his objection and is of itself a reversible error.

Before a view may be had by the jury, it is necessary to make a showing that such view is essential in the interest of justice. That showing was not made in the case at bar.

National Box Co. v. Bradley, 171 Miss. 15, 154 So. 724; Great A. & P. Tea Co. v. Davis, 171 So. 550.

A request that a view or inspection be permitted should not be made in the presence of the jury because an objection to the request made in the presence of the jury might prejudice the jury against the objector.

64 C. J. 90.

And when such a request is made improperly in the presence of the jury and the court does not then and there at once overrule it because thus improperly made, and the other party does not immediately announce anything as to whether he will or will not join in the request, the judge should, of his own motion, retire the jury, and if he does not, the opposite party must request the retirement, and if upon that request the court still fails to retire the jury and the party then makes his objection to the view, the failure to retire the jury will constitute reversible error, if the evidence be strongly conflicting, whether the order for the view is made or is not made--this because the judge has compelled the party to make his objection in the presence of the jury to his injury as aforementioned.

Under no circumstances can the State in the trial of criminal cases make such a request after the State has rested its case, even though the above rule has been complied with. In this case the defendant himself was on the stand before the request was made and that being in the presence and hearing of the jury. The State had already presented its case in chief and to allow the district attorney to make a request after the defendant had begun to put on his testimony we say constitutes a reversible error if the above requirements had been met for the reason that it was made out of time.

We most respectfully submit that the lower court was in error in refusing peremptory instruction requested by appellant for the reason that the State wholly failed to make out a case as required by law with sufficient and competent evidence. No man should be convicted on mere probability of guilt. A defendant is never, under any circumstances, under any phase of any case, required to satisfy the jury of his innocence. It is sufficient if the evidence taken as a whole, whether introduced by the State or by the defendant, leaves the question of his guilt in reasonable doubt.

Pollard v. State, 53 Miss. 410; Cunningham v. State, 56 Miss. 269; Hawthorne v. State, 58 Miss. 778; Smith v. State, 58 Miss. 867; Bishop v. State, 62 Miss. 289; Ingram v. State, 62 Miss. 142; Dawson v. State, 62 Miss. 241; Byrd v. State, 123 So. 867.

W. D. Conn, Jr., Assistant Attorney-General, for the State.

After the shooting an officer, McRainey, went to the truck where it had been abandoned by the Williamsons immediately after the shooting. He found a spent bullet within the door and fished it out. It had been in his possession from that time until the time it was offered in evidence as an exhibit to his testimony. With this identification the State offered it in evidence and the defendant objected on the ground that it had not been sufficiently identified. The identification was, we submit, sufficient.

Davis v. State, 170 Miss. 78, 154 So. 304.

In the case at bar, appellant admitted firing a .32 caliber bullet into the truck occupied by the Williamsons and in view of his testimony along this line, it is inconceivable how the introduction of this bullet could have prejudiced the defendant, even if the State were forced to concede that it had been improperly identified, a thing which we do not concede.

Appellant assigns the action of the court in overruling his motion for a mistrial as error and in his argument here relies principally upon the case of National Box Co. v. Bradley, 171 Miss. 15, 154 So. 724. In that case the court has laid down certain rules which it says must govern views and inspections by the court. In summing up, the court said this: "But, in order to constitute reversible error, as regards the matter of procedure, the objecting party must (1) make the request for the retirement of the jury, and (2) he must object to the view. The controlling point is that the party must have been obliged, in order to make his objection at all, to make it in the presence of the jury. Until the objecting party has requested the retirement of the jury, any previous failures to conform to the rules of practice above stated will be considered as breaches of propriety, but not as reversible error."

In the case at bar, the defendant did not request the court to retire the jury, but he made his objection to the view in the presence of the jury. The State, by making its motion for a view of the truck in the presence of the jury, violated, perhaps, the proprieties of practice, but, under the above case, his action in this respect will not constitute reversible error.

Both appellant and his counsel were present in the court and knew what was being done and if they, or either of them, deliberately failed or refused to go with the court, appellant has no one to blame but himself. Under such circumstances, this situation should be classed as a temporary absence of an accused at his trial and there being no objection to proceeding in his absence, he should be held to have waived his right to be present under such circumstances.

Pool v. State, 120 Miss. 842, 83 So. 273; Roney v. State, 167 Miss. 827, 150 So. 774.

The State submits that it was not error for the court to allow an inspection of the truck under the circumstances reflected by this record.

Argued orally by Ovie L. Berry, for appellant, and by W. D. Conn, Jr., for the State.

OPINION

Ethridge, P. J.

Appellant, Dudley Armstrong, was indicted, tried, and convicted, in the circuit court of Jefferson Davis county, on a charge of assault with intent to kill and murder one Jackie Williamson, and was sentenced to serve a term of five years in the state penitentiary, from which this appeal is prosecuted.

The evidence on behalf of the State and that on behalf of the defendant was conflicting. According to the testimony of Jackie Williamson, he and his nephew went to the home of the appellant for the purpose of collecting a debt secured by a lien on a car owned by appellant, and were informed that he was not there; they made a second visit and received the same information. Jackie Williamson made inquiries in the neighborhood and was informed that appellant was at home, and with his nephew Jackie Williamson returned to the home of appellant a third time, and both testified that Jackie Williamson was unarmed. As they drove up to the home of appellant, he called out something which Jackie Williamson says he did not understand, but the nephew...