Butler v. State, 38649

• Decision Date: 08 June 1953
• Docket Number: No. 38649,38649
• Citation: 217 Miss. 750,65 So.2d 244
• Parties: BUTLER v. STATE.
• Court: Mississippi Supreme Court

Page 244

65 So.2d 244

217 Miss. 750

BUTLER v. STATE.

No. 38649.

Supreme Court of Mississippi.

June 8, 1953.

Womack & Womack and James T. Bridges, Belzoni, for appellant.

J. P. Coleman, Atty. Gen., by George H. Ethridge, Asst. Atty. Gen., for appellee.

HOLMES, Justice.

The appellant, Johnnie Butler, and her son, J. C. Butler, were jointly indicted in the Circuit Court of Humphreys County for the murder of Ora Butler, who was the daughter-in-law of the appellant Johnnie Butler, and the wife of the said J. C. Butler. A severance was applied for and granted, and the appellant, Johnnie Butler, was tried at the July 1952 term of the Circuit Court of Humphreys County and convicted of murder. The jury disagreed as to her punishment and she was accordingly sentenced to imprisonment in the state penitentiary for life. From this conviction, she prosecutes this appeal.

On Motion to Strike

The original transcript of the record in this case was filed in this Court on October 10, 1952. At the February 1953 term of the Circuit Court of Humphreys County, the district attorney filed a petition praying a correction in the transcript of the notes of the court reporter taken on the original trial of said cause. It was set forth in said petition that the office of the attorney general had called to petitioner's attention the fact that the original transcript of the evidence showed that Dr. J. J. Kazar, a witness for the state, testified that the house in which the deceased died was located in Holmes County, and that upon an examination of the stenographic notes of the court reporter taken on the original trial of said cause, it appeared that the witness Kazar stated that the house in which the deceased died was located in Humphreys County, and that the original transcript of the court reporter's notes was, therefore, in error. Accordingly, the petitioner prayed a hearing on said petition upon due notice to the appellant. Notice of the time fixed for the hearing of said petition was duly given to the appellant and the appellant and her attorney appeared at the hearing thereof, and at the conclusion of the hearing the trial judge ordered that the original transcript of the evidence filed in this Court be corrected so as to show that the witness Kazar testified that the house in which the deceased died was located in Humphreys County. Accordingly, a transcript of the testimony and proceedings on the hearing of said petition was filed in this Court on February 9, 1953 as an amendment to the original transcript. On January 10, 1953, the appellant filed in this Court her assignment of errors. On February 19, 1953, the appellant filed a motion to strike the amendment to the original transcript. This case was argued and submitted to this Court on May 4, 1953.

It is the contention of the appellant that after the filing of the original transcript in this Court, this Court acquired exclusive jurisdiction of the record in the cause and that the application to correct the transcript should have been made to this Court and that the trial court was without power or authority to correct the same. This contention of the appellant is contrary to the previous decisions of this Court. In the case of Brown v. Sutton, 158 Miss. 78, 121 So. 835, 837, the Court said: 'Every court of record has general authority over its own records. The power of such a court to correct its records so as to make them speak the truth is inherent. The records of a court can be corrected or altered only by the court itself; and another court has no authority to make such corrections, even though it has appellate jurisdiction over the court whose records are sought to be corrected.' In the case of National Box Co. v. Bradley, 171 Miss. 15, 16, 154 So. 724, 157 So. 91, 95 A.L.R. 1500, the Court held that the application for the correction of the court reporter's transcript of the trial proceedings should be made before the submission of the case to this Court. The error referred to and appearing in the court reporter's original transcript is fully established without dispute and the application for correction having been timely made, that is to say, having been made before the submission of the case to this Court, the trial court had the power to order the correction and properly did so. We are accordingly of the opinion that the motion to strike should be, and it is, overruled.

On the Merits

The parties involved in the series of events which culminated in the death of the deceased are related, as are also the two principal witnesses for the state who testified that they saw the appellant inflict the mortal blows upon the deceased. The deceased was the wife of J. C. Butler, the son of appellant who was jointly indicted with the appellant. The deceased, at the time of her death, was 16 or 17 years of age and had been married to J. C. Butler about a year and a half. The appellant, J. C. Butler, the deceased Ora Butler, and Rosella Butler, another daughter of the appellant, all lived in the same house. The case as made by the state was substantially as follows:

Throughout a period of time preceding the death of the deceased, the deceased was subjected to constant mistreatment by the appellant. This mistreatment on the part of the appellant consisted in whipping the deceased, depriving her of proper nourishment, requiring her to occupy a room in the house, the door of which was nailed off from the remainder of the house, excluding her from eating her meals with other members of the household, and subjecting her to continuous abuse. In the early afternoon of the day of the difficulty which resulted in the death of the deceased, the deceased wanted some flour to make bread and appellant became angry with her and struck her. The deceased then ran out of the house and into the chicken house pursued by the appellant with a shovel. Appellant followed the deceased into the chicken house and struck her on the head with the shovel some four or five times and left her lying in the chicken house. This occurred about 2 or 3 o'clock in the afternoon, and she remained in the chicken house until about 5 or 5:30 o'clock. It was raining and cold and the clothing of the deceased became thoroughly wet. She was thought by the appellant to be dead. About 5:30 o'clock two young men who had come to the house picked her up and carried her into one of the shed rooms of the house, placing her in the doorway with her body inside of the room and her feet partially outside of the doorway. An undertaker was sent for and came in an ambulance about 9:45 P.M. that night. When the undertaker and his assistant arrived, they discovered that the deceased was still alive and placed her in the ambulance on a cot and covered her with a sheet. They placed her in the ambulance because there was a heater in the ambulance and it was warm there. Dr. J. J. Kazar of Tchula was called and he arrived shortly after the ambulance had arrived. He examined the deceased and found that there were fresh lacerations on her upper legs. He made no thorough examination of the head of the deceased. He administered adrenalin and stayed with her until she died some four or five hours later, at about 2:30 a. m. Her death occurred on April 20 or April 21, 1952, and thereafter on or about July 11, 1952, the sheriff had the body disinterred and Dr. Kazar performed an autopsy. Dr. Kazar gave it as his opinion as a result of the autopsy that the cause or her death was a severe concussion resulting from a blow on her head with some blunt instrument. He had previously, about a week following the death of the deceased, signed and filed a death certificate showing that the cause of death was exposure and that the place of death was in Holmes County, Mississippi. After performing the autopsy, however, and as a result of his examination of the deceased, he expressed the firm opinion that the cause of death was concussion resulting from a blow on the head with a blunt instrument. He also testified that the place of death instead of being in Holmes County as shown on his death certificate was in fact in ...