Brown v. State

Citation158 So. 339,173 Miss. 542
Decision Date07 January 1935
Docket Number31375
CourtUnited States State Supreme Court of Mississippi
PartiesBrown v. State.

(In Banc.)

1. CRIMINAL LAW.

Evidence on preliminary examination as to competency of confessions held to establish that confessions were freely and voluntarily given, rendering them competent.

2. CRIMINAL LAW.

Where confession had been properly admitted after preliminary examination as to its competency, failure to exclude it, in absence of request so to do, although during later progress of trial it appeared that confession was made under circumstances rendering it incompetent, held not error.

3. CRIMINAL LAW.

Reopening of case to admit further testimony is discretionary.

4. CRIMINAL LAW.

Action of court in reopening case to admit further evidence will not be reviewed in absence of abuse of discretion.

5. CRIMINAL LAW.

Permitting state to introduce finger print expert as witness after state had closed its case in chief held not error, where expert was not available when state closed its case and defendants were granted reasonable time to secure evidence in rebuttal.

6. CRIMINAL LAW.

Defendants could not obtain reversal because of testimony of rebuttal witnesses, where court on defendants' motion excluded testimony and instructed jury to disregard it and granted every request made in reference to testimony.

7. CRIMINAL LAW.

Instruction defining "murder" in exact language of statute held proper, notwithstanding it did not contain words "with malice aforethought" (Code 1930, sec. 985).

8. CRIMINAL LAW.

Cautionary instructions regarding effect of testimony concerning finger prints and dying declarations held properly refused as inapplicable.

9. CRIMINAL LAW.

Giving of cautionary instructions is discretionary.

ANDERSON, J., dissenting. ON SUGGESTION OF ERROR. (In Banc.) April 29, 1935. No. 31375.

1. CRIMINAL LAW. Admission of confessions held not error, where, on examination as to competency of confessions, defendants introduced no evidence, and it appeared without conflict from state's evidence that confessions were freely and voluntarily made. 2. CRIMINAL LAW. Where confessions had been properly admitted after preliminary examination as to their competency, failure to exclude them, in absence of request so to do, although during later progress of trial it appeared that confessions were coerced, held not error. 3. CRIMINAL LAW. Incompetency of evidence not objected to is waived, and error cannot thereafter be based thereon. 4. CRIMINAL LAW. Rule against self-incrimination is not absolute immunity, but is simply a privilege, of which accused may avail himself or not at his pleasure, and is waived unless specifically claimed (Const. 1890, sec. 26). 5. CRIMINAL LAW. Failure to exclude, in absence of request so to do, confession which was competent when admitted, because during later progress of trial it appeared that confession was coerced, held not to violate constitutional provision against self-incrimination (Const. 1890, sec. 26). 6. CONSTITUTIONAL LAW. Immunity from self-incrimination is not essential to due process (Const. Miss., 1890, sec. 14; Const. U.S., Amend. 14, sec. 1). 7. CONSTITUTIONAL LAW. Faiure to exclude confessions which were competent when admitted after introduction of evidence tending to show their incompetency, in absence of request so to do, held not to deny due process (Const. Miss., 1890, sec. 14; Const. U.S., Amend. 14, sec. 1). 8. CONSTITUTIONAL LAW. "Due process" requires merely that procedure in criminal prosecution be in accord with that applicable to all civil and criminal trials, recognized in all common-law jurisdictions, and does not result in arbitrarily depriving defendants of any constitutional or common-law right (Const. Miss., 1890, sec. 14; Const. U.S., Amend. 14, sec. 1). 9. COURTS. Court had jurisdiction of murder prosecution, where, before expiration of term, order was entered extending term for two weeks, grand jury was recalled after beginning of extended portion of term, returned indictment, and case was tried during extended portion of term, since extension order did not limit court's power during extended portion of term to dealing with such matters only as were before court when order was entered (Code 1930, secs. 473, 732.) 10. CRIMINAL LAW. Recital in caption to transcript of evidence did not control conflicting recital in record of trial as to time when murder trial commenced, as respects question whether defendants were tried before indictment was returned or homicide committed. 11. CRIMINAL LAW. Defendants could not complain for first time on appeal of grand jury foreman's failure to indorse his name on indictment. (Code 1930, sec. 1198). 12. CRIMINAL LAW. Defendants could not complain for first time on appeal that grand jury and petit jury were not sworn (Code 1930, secs. 1193, 3403). 13. CRIMINAL LAW. Murder conviction would not be reversed on ground that grand jury and petit jury were not sworn, where fact did not affirmatively appear (Code 1930, secs. 1193, 3403). 14. CRIMINAL LAW. Motion in arrest of judgment will not lie in Supreme Court, which reviews only rulings of lower court complained of in assignment of error and is confined to examination of record made in court below, and is court of appellate jurisdiction only. 15. CRIMINAL LAW. Allegations in motion for arrest of judgment and affidavits filed in support thereof, which were filed in Supreme Court, were not reviewable.

GRIFFITH and ANDERSON, JJ., dissenting.

HON. J. I. STURDIVANT, Judge.

Ed Brown, Henry Shields, and Yank Ellington were convicted of murder, and they appeal. Affirmed.

On suggestion of error. Suggestion of error overruled.

D. P. Davis and Jno. A. Clark, both of De Kalb, for appellant.

The court will notice that at no place did any of the appellants make any kind of purported confession until after having been punished.

Coffee v. State, 6 So. 493; Frank v. State, 39 Miss. 705; Peter v. State, 4 S. & M. 31; Simon v. State, 37 Miss. 388; Mathews v. State, 59 So. 842; Banks v. State, 47 So. 437; State v. Smith, 18 So. 482; White v. State, 91 So. 150-Sweat Box case, 32 So. 9; 28 So. 852; Stubbs v. State, 114 So. 827; Lofton v. State, 116 So. 435; Fisher v. State, 110 So. 361; Johnson v. State, 140 So. 683; Hathorn v. State, 102 So. 771; Ellis v. State, 3 So. 188; Harmon v. State, 150 So. 904.

In the case of Fisher v. State, 110 So. 361, which we think is very similar to the case at bar, the court reversed the lower court when the facts, in our opinion, were nothing like as strong in favor of the appellant as they are in the instant cases.

In the instant case there is not one scintilla of evidence to bear out or corroborate the guilt of the appellants other than the illegally obtained confessions.

Johnson v. State, 65 So. 218. Brewer & Hewitt, of Jackson, for appellants.

The statute does not authorize the recalling of a grand jury, the returning of an indictment, and the trial thereon at an extended term.

Beard v. McLain, 78 So. 184; Perry v. State, 122 So. 744, 154 Miss. 459; Williams v. Simon, 135 Miss. 562, 99 So. 433; Williams v. State, 126 So. 40.

The record shows that these appellants were tried before indictment, and before the occurrence of the alleged homicide, for which they were convicted, which is clearly reversible error.

The purported indictment in this cause was not endorsed, or signed by the foreman of the grand jury, and was, therefore, void.

The record does not disclose that a grand jury was ever impaneled and sworn.

Section 27, Constitution of State of Mississippi; 14th Amendment of the Federal Constitution; Sections 1193 and 3403, Code of 1930; Arbuckle v. State, 80 Miss. 15, 31 So. 437, 438; Hays v. State, 96 Miss. 153.

No petit jury was impaneled and sworn, and a trial by an unsworn jury is a trial without a jury.

Secs. 1264 and 2064, Code of 1930; Miller v. State, 84 So. 161; McFarland v. State, 70 So. 563; Hill v. State, 73 So. 66; Boroum v. State, 63 So. 297; Stark v. State, 97 So. 577; Cummings v. State, 155 So. 179.

Under the Constitution of the State of Mississippi there is no power or authority vested in a court of this state to try an accused person for a criminal offense, without indictment, according to the forms of law, by a lawfully constituted grand jury, and trial must be had by an impartial jury, which means, of course, a jury impaneled and sworn, as required by law.

Section 3403, Code of 1930; Arbuckle v. State, 80 Miss. 15.

Surely it is cruel folly for the state to contend, in a court of justice, that these negroes are to be bound by the strictest and most technical rules of practice and pleading, and this after their right to counsel has been effectively denied.

Powell v. Alabama, 77 L.Ed. 172.

The preliminary examination of Sheriff Adcock, conducted by the trial court in the absence of the jury, developed sufficient facts to show that testimony with reference to the confessions, made to Adcock, et al., should have been excluded; and the trial court committed reversible error in overruling appellants' objection to said testimony.

The action of the trial court, in admitting said testimony, denied to appellants their constitutional rights, both state and federal.

Johnson v. State, 65 So. 218, 107 Miss. 196; Ellis v. State, 65 Miss. 44; Williams v. State, 72 Miss. 117; Lee v. State, 102 So. 296; Whip v. State, 109 So. 697; Fisher v. State, 110 So. 361; Banks v. State, 47 So. 437, 93 Miss. 700; Mackmasters v. State, 82 Miss. 459; Whitley v. State, 78 Miss. 255.

The trial court, of its own motion, should have excluded the evidence as to confessions, after testimony was introduced by appellants, showing that the confessions were obtained by force and violence.

Collins v. State, 100 Miss. 441; ...

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  • Brown v. State
    • United States
    • United States State Supreme Court of Mississippi
    • 29 Abril 1935

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