Bounds v. State

• Decision Date: 02 January 1973
• Docket Number: No. 47047,47047
• Citation: 271 So.2d 435
• Parties: Charley Albert BOUNDS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 435

271 So.2d 435

Charley Albert BOUNDS v. STATE of Mississippi.

No. 47047.

Supreme Court of Mississippi.

Jan. 2, 1973.

A. S. Scott, Jr., William A. Stewart, Jr., Laurel, for appellant.

A. F. Summer, Atty. Gen., by J. B. Garretty, Special Asst. Atty. Gen., Jackson, for appellee.

RODGERS, Presiding Justice.

The appellant, Charley Albert Bounds, a Negro, was indicted along with two other Negro man and one white man for forcibly raping a twenty-year-old white woman. The appellant was tried separately at the September, 1971 term of the circuit court for the Second Judicial District of Jones County, Mississippi. However, these proceedings ended in a mistrial when the court discovered that the jury had not been specially sworn to try the issues. Upon a retrial at the October term of court, the jury returned a verdict of guilty and fixed punishment at life imprisonment in the state penitentiary.

Around midnght on September 1, 1971, the prosecutrix, a young married woman separated from her husband, and one Thomas Johnson, parked in a lover's lane, a short distance from the Rahaim Ball Park in Laurel, Mississippi. Soon after the couple had parked, a car occupied by five men drove up and stopped directly behind the prosecutrix's car, thereby blocking the pair's exit. One of the Negrose forced Johnson out of the car and held him at gunpoint while he, two other Negroes, and a white man alternately reped the prosecutrix.

There is ample direct evidence to support the charge against the appellant, and the weight of the evidence is not at issue in this case. However, the appellant urges that this case be reversed due to alleged procedural irregularities.

First, the appellant contends that the trial court committed reversible error in overruling the appellant's plea of former jeopardy. During the first trial of this case, the court declared a mistrial because the jury had not been specially sworn to try a capital case. See Mississippi Code 1942 Annotated Section 2507 (1956). Thus, the appellant argues that a second trial placed him in jeopardy twice for the same offense. However, the appellant's contention is not well taken.

It is a well settled rule of law that:

'In order for a plea of former jeopardy to avail, it must appear that the defendant was actually acquitted or convicted in a former trial 'on the merits' of the crime for which he is again sought to be convicted.' Lovern v. State, 140 Miss. 635, 639, 105 So. 759 (1925). See also State v. Pace, 210 Miss. 448, 454, 49 So.2d 710, 711 (1951); State v. Moor, 1 Miss. 134, 139, Walker, 134, 139 (1823); Miss.Const.1890, Art. 3, § 22.

Since the error of failing to properly swear the jury was discovered before a verdict was rendered, no jeopardy attached to the appellant's first trial, and he could be properly tried a second time.

Second, the appellant argues that the trial court erred in announcing in open court that the defendant would have to subpoena Paul Craven of the Laurel Police Department, the policeman who transcribed the appellant's confession, if the defendant intended to examine Officer Craven. It is the appellant's contention that the state was obligated to present Officer Craven in order to satisfy the requirement of the Sixth Amendment of the United States Constitution as to an accused's right to be confronted by the witnesses against him. The appellant asserts that since the defendant questioned the use of the word 'rape' in a confession, the state had the burden of proving that the defendant used the word 'rape' and understood its meaning. However, the appellant's reasoning is not supported by the law.

The general rule setting forth the requirements for the admission of confessions, is stated as follows:

'Extrajudicial confessions of the accused in a criminal case, if satisfactorily shown to have been made voluntarily, without improper inducements, and not in violation of his constitutional rights to counsel and to remain silent, are universally recognized as being admissible in evidence against him, subject to the requirement of corroboration and proof of the corpus delicti.' 29 Am.Jur.2d Evidence, § 526, pp. 577-578 (1967).

See also Anderson, Wharton's Criminal Evidence, Vol. II, § 360, pp. 68-69 (1955); McCormick, Handbook of the Law of Evidence, §§ 110-111, pp. 229-233 (1954).

The voluntariness of the confession was established by testimony of the appellant as well as the interrogating police officers. Further, the prosecution presented evidence independent of the confession which tended to establish the corpus delicti. Under these circumstances, the oral confession of the appellant is admissible where it was also reduced to writing by a police stenographer, read to the accused, and signed by the accused, thereby acknowledging its correctness. 23 C.J.S. Criminal Law § 833, pp. 237-239 (1961). The appellant cannot, therefore, complain of the prosecution's refusal to call the police stenographer Craven since the state was under no duty to produce all of the witnesses present when the confession was given. Such a duty exists only...