Brown v. State

Decision Date29 April 1935
Docket Number31375
Citation158 So. 339,173 Miss. 542,161 So. 465
CourtMississippi Supreme Court
PartiesBROWN et al. v. STATE

January 7, 1935

APPEAL from circuit court of Kemper County 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.

Affirmed. The 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; Butler v. State, 112 So. 685; Fisher v. State, 110 So. 361.

It is the settled law of this state that where evidence as damaging as this is admitted, and later excluded by the court, the admission thereof is nevertheless reversible error, in that the minds of the jurors are most likely to be influenced by same, despite the fact that the court instructs them to disregard it.

Ward v. State, 78 So. 782; Mooney v. Holohan, Warden of San Quentin Penitentiary, 79 L.Ed. 347.

A conviction, coercive in nature, is in the category of what is termed a fraudulent judgment.

Powell et al. v. Alabama, 77 L.Ed. 158.

Due process of law is denied to a defendant unless there is a law creating the offense, a court of competent jurisdiction, accusation in due form, notice and opportunity to answer the charge, trial according to the settled course of judicial proceedings, and a right to be discharged unless found guilty.

Twining v. New Jersey, 53 L.Ed. 97, 111; Frank v. Mangum, 237 U.S. 309, 326, 59 L.Ed. 969; Cooley, Constitutional Limitations (8 Ed.), 736, 739; Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; Powell v. Alabama, 287 U.S. 45, 77 L.Ed. 158; Nielsen case, 131 U.S. 176, 33 L.Ed. 118; McRae v. State, 8 Okla.Crim. 483; State v. Guerringer, 265. Mo. 408, 178 S.W. 65; State v. Dixon, 253 S.W. 746; Mooney v. Holohan, 79 L.Ed. 347, Advance Sheet No. 6.

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.

State v. Griffin, 129 S.C. 200, 124 S.E. 81, 35 A.L.R. 1227; Carlisle v. State, 114 So. 475; People v. Winchester, 185 N.E. 580; Posell v. Herscovitz et al., 130 N.E. 69; Commonwealth v. Belenski, 176 N.E. 501; Robb v. Connolly, 111 U.S. 624, 637; Vaughn v. State, 30 So. 669; Jarvis v. State, 34 So. 1025; Bradley v. State, 48 S.E. 981, 121 Ga. 201; Davis v. State, 70 N.W. 984, 51 Neb. 301; People v. Bartley, 108 P. 868, 12 Cal.App. 773; People v. Decker, 127 N.Y.S. 1059, 143 A.D. 590, 26 N. Y. Cr. R. 75; State v. Snealy, 107 P. 389, 18 Wyo. 341; State v. Frost, 234 P. 1021, 134 Wash. 48; People v. Hayek, 220. N.W. 790, 243 Mich. 546; State v. Boloff, 4 P.2d 326; People v. Winchester, 185 N.E. 580, 352 Ill. 237.

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

The confessions were qualified as having been freely and voluntarily made and were submitted to the court. The defendants cross-examined the witness, but did not change the voluntary character of such confessions. On preliminary inquiry the defendants offered no proof of the involuntariness of such confessions. It was their duty at that time to introduce such proof, if any there was.

Ellis v. State, 65 Miss. 44, 3 So. 188; Lee v. State, 137 Miss. 329, 102 So. 296; Perkins v. State, 160 Miss. 720, 138 So. 357; Weatherford v. State, 164 Miss. 888, 143 So. 853.

The matter of reopening a case is left to the sound discretion of the trial court and the action of a trial court in reopening a case will not be reviewed in the absence of a showing of an abuse of that discretion.

Baird v. State, 146 Miss. 547, 112 So. 705; Morris v. State, 148 Miss. 680, 114 So. 750; Richardson v. State, 153 Miss. 653, 121 So. 284; State v. Martin, 102 Miss. 165, 59 So. 7.

Appellants urge that it was reversible error for the court to sustain the objection of the district attorney. The witness was relating, or attempting to relate, a conversation he had with the deceased, late in the afternoon before he met his death sometime during the night. In the first place the testimony has all the earmarks of being hearsay, which would make it objectionable. In the second place, the record does not show what the witness answer would have been, and, therefore, this court has nothing to review.

Reece v. State, 154 Miss. 862, 123 So. 892; Mooreman v. State, 131 Miss. 662, 95 So. 638; Tucker v. State, 103 Miss. 117, 60 So. 65; Lebarron v. State, 107 Miss. 663, 65 So. 648; Temple v. State, 165 Miss. 798, 145 So. 749.

It is not error for the trial court to refuse a cautionary instruction.

Watkins v. State, 134 Miss. 211, 98 So. 537; Cheatham v. State, 67 Miss. 335, 7 So. 204, 19 Am. St. Rep. 310.

The order of the circuit court extending the term has been sent up to this court in compliance with the writ of certiorari issuing out of this court. On its face it appears to be regular and shows a substantial compliance with Section 732 of the Code.

An extended term of court is not a special term; it becomes simply a part of the regular term fixed by law.

Perry v. State, 154 Miss. 459, 122 So. 744; Watson v. State, 166 Miss. 194, 146 So. 122.

In Hays v. State, 93 Miss. 670, 47 So. 522, this court said that a trial court does have the power to reconvene the grand jury during the term.

Kyzar v. State, 125 Miss. 79, 87 So. 415; Bell v. State, 118 Miss. 140, 79 So. 85.

The defendants have repeatedly represented to this court that they were tried during the first week of the extended term and have particularized the days which have elapsed between the time of the commission of the crime up to the day of the trial. Testimony on oath shows that all the events surrounding this homicide occurred...

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9 cases
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2 books & journal articles

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