Byrd v. State

• Decision Date: 14 June 1937
• Docket Number: 32618
• Court: Mississippi Supreme Court
• Parties: BYRD v. STATE

175 So. 190

179 Miss. 336

BYRD v. STATE

No. 32618

Supreme Court of Mississippi

June 14, 1937

Division A

1. INDICTMENT AND INFORMATION.

Where court allowed an indictment for murder to be "passed to the files" upon which defendant was released from custody, it was not error to later allow motion of district attorney to reinstate the murder charge, since the order passing it to the files did not constitute a dismissal of the cause.

2. CRIMINAL LAW.

Where a district attorney moved that an indictment for murder be passed to the files, the order of the court remanding the case to the files did not operate as a technical discontinuance thereof (Code 1930, sections 600, 734).

3. INSANE PERSONS.

Where indictment charging defendant with murder was, on motion of state, passed to the files, and defendant was subsequently tried under statutory proceedings for insanity, declared insane, and committed to an asylum by the chancery court, the adjudication of the chancery court did not oust the circuit court of jurisdiction to try defendant for murder (Code 1930 sections 4568-4586).

4. CRIMINAL LAW.

In prosecution for murder where defense was insanity, and a number of instructions given advised the jury that they might find the defendant not guilty because of insanity at the time of the murder, instruction as to form of verdict in case defendant was found guilty which failed to advise jury that they might find him not guilty because of insanity was not error.

5 JURY.

In prosecution for murder where a juror was qualified and accepted by both parties and upon a full panel being tendered, refusing defense permission to peremptorily challenge the juror was not error (Code 1930, section 1277).

6. CRIMINAL LAW.

In prosecution for murder, testimony that defendant fired first at deceased, then at deceased's father, then again at deceased, was properly admitted as res gestae.

7. CRIMINAL LAW.

Sufficiency of evidence to sustain conviction for murder as against a claim of insanity could not be questioned on appeal in absence of motion for new trial in the lower court.

HON. W J. PACK, Judge.

APPEAL from the circuit court of Forrest county HON. W. J. PACK, Judge.

Jim M. Byrd was convicted of murder, and he appeals. Affirmed.

Affirmed.

Earle L. Wingo, of Hattiesburg, and U. B. Parker, of Wiggins, for appellant.

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

OPINION

McGowen, J.

Appellant was tried and convicted in the circuit court of Forrest county on an indictment charging him with the murder of Clifton McLendon. He was sentenced to serve a life term in the state penitentiary, and prosecutes this appeal.

Appellant was indicted on April 21, 1933, and the next day his counsel filed a petition with the trial court stating that appellant was insane and should not be arraigned upon the indictment but that the court should impanel a jury to inquire into his mental condition. Attached to the petition as exhibits were ex parte affidavits that appellant was insane at the time and had been for some time prior thereto. On April 27, 1933, the court entered an order setting a trial for April 29, 1933, for the purpose of determining the question of the insanity of the appellant. On April 29, 1933, the court overruled a motion of appellant to impanel a jury for the purpose of determining the question of appellant's insanity, and, on the same day, after hearing several witnesses, permitted appellant to withdraw his petition for an insanity hearing, and dismissed the petition. On May 17, 1933, upon motion of the district attorney, the court ordered the case to be "passed to the files."

On November 16, 1936, the district attorney filed a motion to withdraw this case from the files and place it upon the trial docket of the court, for the reason that appellant was then mentally and physically able and ready to go to trial. The court sustained the motion, and the case was docketed for trial. The appellant was arraigned on the same day and pleaded not guilty. A special venire was ordered and venire facias issued, returnable November 23, 1936, and on that day the case proceeded to trial.

During the trial it was developed that on May 1, 1933, proceedings had been instituted before the clerk of the chancery court of Forrest county to have the appellant declared insane under article 4, chapter 108, Code of 1930, which resulted in his being adjudged a dangerous, criminally insane person. He was admitted to the Mississippi State Hospital for the Insane on the same day, and remained there two years and eight days, when he was allowed to leave unaccompanied to go to his brother's home in Texas. Appellant returned to Brooklyn in Forrest county and was arrested by the sheriff. While a habeas corpus proceeding, instituted by the appellant, was being heard by the circuit judge, this case was withdrawn from the files, and the appellant was then and there arrested by the sheriff and held for trial.

The facts of the killing reveal that, while appellant, Clifton McLendon, and his father, Joe McLendon, were engaged in an argument relative to a cow bell, appellant used insulting language toward deceased and his father, and a brother; that appellant shot Clifton McLendon and then shot the father, Joe McLendon, wounding him, and again fired at Clifton after he had fallen. Clifton died from the pistol wound in about five minutes, and a search of his body revealed that he was unarmed.

The defense offered no evidence as to the details of the homicide, but offered many witnesses who testified that appellant was insane--that he did not know right from wrong and did not appreciate the nature and quality of his acts. The evidence as to appellant's manner and actions covered a period of his life from the time he was injured in the battle of Soissons in France until after he was arrested and lodged in jail following the homicide.

The State then offered witnesses in rebuttal who testified that they had known appellant; had conversations with him and observed him from time to time; and that they were of the opinion that he was sane at the time of the homicide.

The record does not disclose that appellant made any objection to the action of the court in putting him to trial on a case which had but recently been withdrawn from the files.

The jury found the appellant guilty as charged, disagreed as to his punishment, and the court sentenced him to serve a term for life in the state penitentiary.

Appellant assigns as error and grounds for reversal:

(1) The action of the court in allowing the indictment herein to...