Armstrong v. State

• Decision Date: 07 October 1968
• Docket Number: No. 44638,44638
• Parties: James McArthur ARMSTRONG v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 589

214 So.2d 589

James McArthur ARMSTRONG v. STATE of Mississippi.

No. 44638.

Supreme Court of Mississippi.

Oct. 7, 1968.

Rehearing Denied Oct. 28, 1968.

Smith & Smith, Corinth, for appellant.

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

RODGERS, Justice:

Appellant, James McArthur Armstrong, twenty-four years of age, was indicted and tried on a charge of murder in the Circuit Court of Alcorn County, Mississippi. He was convicted of manslaughter, and after defendant's motion for a new trial was overruled, and final judgment entered, the court sentenced the defendant to serve a term of twenty years in the state penitentiary. The defendant appealed to this Court.

The facts and circumstances leading up to appellant's conviction are as follows. Mr. Massengill, a bachelor, lived on the east side of U.S. Highway 45, approximately halfway between Corinth and Booneville, Mississippi. He had lived at this place for several years with his sister; however, his sister had recently been transferred to a nursing home because of illness, and on May 16, 1966, the date of his death, he was living alone. He was sixty-six years of age.

On the morning of May 17, 1966, two of his sisters, Mrs. Mildred Lusk and Mrs. Ethel Wren, came to visit him at his home in Rienzi. They discovered his body on the floor in his bedroom, and immediately went across the street to the Bethlehem Truck Stop and notified George Mason and Robert Lyons. The police officers were notified immediately, and since the defendant was absent from his place of employment at the service station as a service station attendant, and since the officers were told that Massengill's car had gone down the highway, the highway patrolmen and officers in the adjacent counties were notified by the authorities to be on 'lookout' for James McArthur Armstrong. The sheriff of Prentiss County received the call and went to the home of a relative of James Armstrong, where Armstrong was found and taken into custody. He was then taken to the Bethlehem Truck Stop, where he was turned over to Sheriff Wilbanks of Alcorn County.

After the defendant was arrested, the sheriff of Prentiss County asked him if he killed Mr. Massengill, and he said, 'I did.'

A large crowd had gathered at the truck stop, and the sheriffs of Prentiss and Alcorn Counties were apprehensive for the safety of the prisoner; nevertheless, an investigator for the highway patrol took the defendant to the scene where the body of the deceased had been found. The defendant again confessed to the highway patrol officers that he killed the deceased with an iron pipe. He stated that he took the automobile belonging to the deceased, and drove it to a nightclub and persuaded a young woman to go with him. He said he threw the pipe and a pistol belonging to the deceased out of the automobile into Tuscumbia Bottom. The officers took the defendant to the place where he claimed to have thrown the pipe and pistol. A search was made for the weapons, but they were not found. He told the officers where they would find the automobile belonging to the deceased. The officers recovered the automobile and obtained fingerprints from it was proved to be the fingerprints of the defendant.

Later the defendant confessed to another highway patrol officer in the presence of several other officers. The defendant gave the officer a shirt which had blood on it. The county attorney took a statement from the defendant on a tape recorder, but the recorder did not properly record, and the statement was inaudible. The county attorney then took a written statement from the defendant.

An objection was made to the introduction into evidence of various statements, whereupon the trial judge proceeded to hear the evidence out of the presence of the jury. The officers testified in each instance (except as to the first statement to the sheriff of Prentiss County) that the officers had advised the prisoner that he was not required to make a statement and that if he made a statement it could be used against him in a court of law; that he was entitled to have a lawyer; and that if he could not employ a lawyer the State would furnish him one. They testified that he said he did not want a lawyer, and that his statement was freely and voluntarily given.

The defendant took the stand and admitted that he made the statement. He admitted that he was not threatened nor promised any immunity by the officers, but said he did not remember that the officers had warned him as to his constitutional rights. He said that he made the statements because his wife and baby had been threatened, because he was afraid, and because he had blood on his shirt.

After the trial judge, in the absence of the jury, had heard all of the testimony with reference to the admissibility of the confession, he ruled that the confession to the sheriff of Prentiss County was inadmissible, because the prisoner was not warned as to his constitutional rights. He would not permit the introduction of the confession made at the truck stop because of the attitude of the crowd gathered there, nor would he permit the introduction of the confession taken the same night at the courthouse. The court did, however, permit the confessions made the next morning and the next afternoon. These confessions were permitted to be given in evidence to the jury. The testimony of the young lady who accompanied the defendant was admitted in evidence. She testified that the defendant told her that he hit the deceased with an iron pipe and that he was dead. Defendant also told Mr. and Mrs. Strickland that he had 'hit Mr. Massengill with an iron pipe.'

The testimony in this case is overwhelming, and yet, taking all the evidence as a whole, the jury could very well, as reasonable men, reach a conclusion that the entire facts with reference to the death of Mr. Massengill had not been revealed.

The defendant said that he went over to take a note from a negro to Mr. Massengill, and found that Mr. George Mason had just hit Mr. Massengill with a tire tool; that Mr. Mason threatened the defendant's wife and child, and told him to take Mr. Massengill's automobile and leave; and that Mr. Mason was angry with Mr. Massengill about a rental check. He said he got the blood on this shirt while trying to get the key for the automobile from Mr. Massengill's pocket. He said he ran away because he was afraid. He was corroborated in part of his testimony as to the note given to him to be delivered to Massengill and also as to the controversy between Mr. Massengill and Mr. Mason with reference to the government rental check.

We are of the opinion that there is ample testimony to sustain the verdict of manslaughter returned by the jury.

I.

We are convinced that the ruling of the trial judge with reference to the admission of the confession and the testimony was correct. In fact, the admissions of the defendant on the preliminary hearing on the witness stand were sufficient to permit the introduction of the confessions admitted in evidence by the trial judge.

The mere fact that one has once confessed to an officer who did not warn him of his constitutional rights does not preclude the admission of a later confession which was freely and voluntarily given, after proper warning, unless it appears that the second confession was brought about as the result of having given the first confession, or under the same influence which caused the first confession. White v. State, 129 Miss. 182, 91 So. 903, 24 A.L.R. 699 (1922).

This Court held as early as 1844, in the case of Peter v. State, 12 Miss. (4 S. & M.) 31 (1844), that there was a presumption of law that a confession obtained by the influence of a threat or a promise, once made, continues to operate unless it is shown that a subsequent confession was not made under the influence of the previous threat or promise. This rule has been carefully guarded by this Court through the years. ¹

On the other hand, where it is shown that a subsequent confession was made after proper warning and was free from the influence which might have prompted the former confession, such subsequent confession is admissible in evidence. Simmons v. State, 61 Miss. 243 (1883). We are convinced that the confessions admitted into evidence in the instant case were freely and voluntarily given, because the prisoner was properly warned of his constitutional rights. We therefore hold that the confessions were properly admitted in the evidence by the trial judge. We do not consider the holding of the Court in Clewis v. State of Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967), to be contrary to our holding under the facts shown in the case now before this Court.

II.

The trial judge asked the members of the special venire the question, 'Are you opposed to the death penalty under any circumstances?' Several members of the prospective panel answered, 'Yes, sir'; whereupon, the trial judge excused the veniremen from serving as jurors without the consent of the defendant. The attorney for the defendant objected to this procedure and moved the court for a new trial. The trial court overruled the objection and all the veniremen who were opposed to the death penalty were released.

The proper method of bringing the death penalty to the attention of the special veniremen is for the trial judge to inform them that they have been summoned as veniremen in a capital case and that a verdict of guilty could result in the infliction of the death penalty. The judge should then ask them if any member of the panel has any conscientious scruples against the infliction of the death penalty, when the law authorizes it, in proper cases, and where the testimony warrants it. If there are those who say that they are opposed to the death penalty, the trial judge should then go further and ask those veniremen, who have answered in the affirmative, whether or not they could, nevertheless,...