Bond v. State

Citation91 So. 461,128 Miss. 792
Decision Date08 May 1922
Docket Number22069
CourtUnited States State Supreme Court of Mississippi
PartiesBOND v. STATE

1. CRIMINAL LAW. Supreme court in reviewing refusal of change of venue will review all the testimony.

In reviewing the action of the circuit court in refusing defendant's application for a change of venue the court will review all of the testimony in the case, and will judge from it whether or not a fair and impartial trial was had.

2. JURY. Special venire summoned as provided by statute not quashed except for fraud; special venire not quashed because sheriff who summoned veniremen was related to deceased special venire not quashed because half of those summoned were related to deceased.

Where a special venire was summoned as provided by section 2715, Code 1906 (section 2208, Hemingway's Code), it will not be quashed except for fraud. Where the testimony shows that the veniremen were summoned by a deputy sheriff, the fact that the sheriff was related to the deceased is no reason to quash the venire. Neither will the venire be quashed because about half of those summoned were related to the deceased.

3. CRIMINAL LAW. Where two officers were killed during same shooting affray, testimony as to killing of one was admissible in prosecution for murder of the other.

Where the testimony shows that shortly before the killing two men jointly indicted agreed that if one of the deceased and any revenue officers attempted to arrest them they would either kill them or be killed, and that when the revenue officers appeared upon the scene the shooting immediately began participated in by five men, and lasting but a short while and where both officers were killed, in the trial of a defendant charged with the killing of the first officer shot down, evidence of the shooting of, both men is admissible, as is also testimony of the nature, description, and character of the wounds sustained by the officers who was last killed. The entire affray constituted but one transaction, in which the unlawful agreement to kill both officers was carried out.

ETHRIDGE AND ANDERSON, JJ., dissenting.

HON. J. D. FATHEREE, Judge.

APPEAL from circuit court of Greene county, HON. J. D. FATHEREE, Judge.

Henry A. Bond was convicted of murder, and he appeals. Affirmed.

Judgment affirmed.

A. E. Anderson and Cephus Anderson, for appellant.

H. C. Holden, Assistant Attorney-General, for the state.

No brief found in the record for either side.

SYKES, J. ANDERSON, J., concurs in the foregoing opinion. ETHRIDGE, J. dissenting.

OPINION

SYKES, J.

The appellant, Henry A. Bond, Mancey Kelly, John Adams, and Will Morris were jointly indicted for the murder of J. F. Green. By the same grand jury these defendants were also jointly indicted for the killing of Lawrence Dunham. The defendants all joined in a motion for a change of venue from Greene county. This motion was finally overruled, and Mancey F. Kelly was tried and convicted of the murder of Lawrence Dunham, and sentenced to be hanged. An appeal was prosecuted to this court and the judgment of the lower court was affirmed. 90 So. 490. On that appeal the motion for a change of venue which was made by all the defendants was presented to the court, and after a most careful consideration the judgment of the lower court was affirmed.

Immediately after the trial of Kelly for the killing of Dunham this appellant was put on trial for the killing of Green, and in this trial the motion for change of venue was renewed. By agreement of counsel on both sides the testimony introduced upon the first motion was considered as a part of the testimony upon this motion for a change of venue. In addition thereto the appellant, Bond, made affidavit that, for reason of prejudice and ill will, he could not get a fair and impartial trial in Greene county. And a supporting affidavit to the same effect was filed by two other persons. Another motion was also filed for a change of venue by the appellant, in which he alleged further that the men who were killed were members of large and prominent families, and that a number of the veniremen summoned to try Kelly were related by blood or marriage to Dunham and Green; that the sheriff of Greene county, Webb Walley, is a relative of the deceased Dunham, and that, because the jury boxes were exhausted, the court ordered the sheriff upon an open venire to summon eighty men; that the members of this special venire were within the hearing of the courtroom, and heard parts of the argument of counsel in the Mancey Kelly case, and that Kelly was convicted of murder and sentenced to be hanged; that during the argument of the Kelly case in the courthouse and courtyard were numerous relatives of the two dead men, and that for these additional reasons the appellant's case was prejudiced in the public mind, and he could not get a fair and impartial trial. The record shows that when the appellant asked for a special venire the jury boxes were practically exhausted, and that the court ordered a special venire issued by the clerk directed to the sheriff to summon eighty jurors, as is provided by section 2715, Code of 1906 (section 2208, Hemingway's Code); that the sheriff himself did not personally summon this venire, but it was done by a deputy. A motion to quash this special venire was made by the defendant. He alleges in this motion that the sheriff, Webb Walley, is kin to the deceased Dunham; that the venire was returnable the day that the Kelly case was argued before the jury, and that the veniremen who were out in the courthouse yard heard parts of the argument of the Kelly case; that there were relatives and friends of the two dead men in the courtyard at the time, and that these relatives and friends were mixing and mingling with the veniremen; that the special venire was not selected from the county generally, but from certain special sections of it; and that a large number of them were related to the two dead men. Additional testimony upon the motion for a change of venue was introduced by both sides, which testimony was also considered on the motion to quash the venire.

The chancery clerk testified that he was serving his second term in that office, and had been tax assessor for twelve years; that there are one thousand, two hundred or one thousand, four hundred voters in Greene county, and that in his judgment, Bond could get a fair and impartial trial in the county, considering the county as a whole, and the method in which jurors are drawn; that the people at large had not heard the facts connected with the case, and did not know enough about it to disqualify them; that the special venire drawn in this case had been excluded from the courtroom during the trial of the Kelly case, and had not heard any of the testimony. He testified that there had been a big crowd present during the trial of the Kelly case, but numbers of the citizens of the county had not been there.

The circuit clerk testified that the defendants had a number of relatives in the county; that he believed Bond could get a fair and impartial trial; that he based this opinion upon the public sentiment; knowing the people as he did, that de did not think the majority of the people knew before the meeting of court what men had been arrested for this killing; that as circuit clerk he saw and talked to a great many men in the county; that he had heard no expressions of ill will or prejudgment of Bond's case except by some of the relatives of the dead men, but that the general run of citizens had not done so; that the two dead men had a number of relatives in the county. The circuit clerk also testified about issuing the open venire in this case to be executed by the sheriff as above set out.

Several other witnesses were introduced by the state who testified that there had been no prejudgment of this case, and that they believed the defendant could get a fair and impartial trial. The sheriff also testified that his deputy summoned the venire in the Bond case; that he had nothing to do with it personally, except that he told the deputy to get good men; that he was related to the deceased Dunham. He also testified that a large crowd attended the trial of Kelly.

The defendant introduced several witnesses who were summoned on the venire to try Bond. A number of these were kin to either the deceased Dunham or Green. Some of them testified that they were in the courthouse yard during the argument of the Kelly case, and could occasionally hear a part of the argument. Some of these had heard the case discussed, but a number of them testified that they had not heard anybody say that his mind was made up as to the guilt or innocence of Bond. None of these witnesses heard all of the argument of any lawyer, and none of them testified that he formed an opinion as to the guilt or innocence of Bond from these arguments. Some of these witnesses had formed and expressed an opinion as to the guilt or innocence of the defendant.

Without going into detail into all of this testimony, it is sufficient to say that the vast majority of witnesses who testified stated that there was no ill will against the defendant, and had been no prejudgment of his case; that they believed he could get a fair and impartial trial in Greene county.

In the impaneling of the jury it developed that nearly half of the eighty men were related by blood or marriage to either Green or Dunham, and about four of them were related to either Bond or Kelly. The venire of eighty men was exhausted, and the two regular juries were called and exhausted; then twenty additional veniremen were summoned, and the jury was completed from them. The ratio of relationship to the two dead men continued in about the same proportion as it did in the examination of the special venire. Not...

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13 cases
  • Fisher v. State
    • United States
    • Mississippi Supreme Court
    • November 15, 1926
    ...Vincent J. Brocato and T. S. Ward, for appellant. I. The court erred in overruling appellant's motion for change of venue. Bond v. State, 128 Miss. 792, 91 So. 461; Keeton v. State, 132 Miss. 768; Tennison State, 79 Miss. 713, 31 So. 422; Saffold v. State, 76 Miss. 258; Cavanah v. State, 56......
  • Mackie v. State
    • United States
    • Mississippi Supreme Court
    • April 6, 1925
    ...v. State, 62 Miss 289; Regan v. State, 87 Miss. 422. See also in this connection, Long v. State, 96 So. 740, 133 Miss. 33, and Bond v. State, 91 So. 461. IV. The WITNESSES MAGGIE AND WALTER BOLIAN WERE COMPETENT AND WERE PROPERLY PERMITTED TO TESTIFY. Appellant urges that the lower court er......
  • Anderson v. State
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