Byrd v. State

Decision Date24 November 1969
Docket NumberNo. 45559,45559
Citation228 So.2d 874
PartiesLawrence BYRD v. STATE of Mississippi.
CourtMississippi Supreme Court

Sullivan & Sullivan, Hattiesburg, for appellant.

A. F. Summer, Atty. Gen., by Guy N. Rogers, Asst. Atty. Gen., Jackson, for appellee.

JONES, Justice:

Section 2006, Mississippi Code of 1942 Annotated (1956) defines the crime of arson first degree as follows:

Any person who wilfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels or procures the burning of any dwelling house, whether occupied, unoccupied or vacant, or any kitchen, shop, barn, stable or other outhouse that is parcel thereof, or belonging to or adjoining thereto, whether the property of himself or of another, shall be guilty of arson in the first degree, and upon conviction thereof, be sentenced to the penitentiary for not less than two nor more than twenty years.

Appellant was indicted under this section following the words of the section by using 'or'. In other words, the crime was charged in the disjunctive rather than the conjunctive. A demurrer was filed to the indictment, and the district attorney, with permission of the court, then amended by striking out the word 'or' and writing in the place of it 'and' so as to charge the various acts in the conjunctive.

A demurrer and a motion to quash was filed to the amended indictment on the ground that the original indictment was not amendable.

Section 2449 of the Mississippi Code of 1942 Annotated (1956) provides for the amendment of indictments in cases of formal defects. It will be noted that the amended indictment did not change the crime charged and did not add any new elements thereto. As stated in 42 C.J.S. Indictments and Informations § 240, page 1250 (1944):

The test of whether an accused is prejudiced by the amendment of an indictment or information has been said to be whether or not a defense under the indictment or information as it originally stood would be equally available after the amendment is made and whether or not any evidence accused might have would be equally applicable to the indictment or information in the one form as in the other; if the answer is in the affirmative, the amendment is one of form and not of substance, * * *.

This is the rule that has been adopted by our Court. Kelly v. State, 239 Miss. 683, 124 So.2d 840, 85 A.L.R.2d 1199 (1960); Gillespie v. State, 221 Miss. 116, 72 So.2d 245 (1954); Hearn v. State, 219 Miss. 412, 69 So.2d 223 (1954); Perciful v. Holley, 217 Miss. 203, 63 So.2d 817 (1953); Mays v. State, 216 Miss. 631, 63 So.2d 110 (1953); Osser v. State, 165 Miss. 680, 145 So. 754 (1932); Sauer v. State, 166 Miss. 507, 144 So. 225 (1932).

The case of Lenoir v. State, 237 Miss. 620, 115 So.2d 731 (1959) involved child desertion where the statute provided for various acts constituting desertion and non-support, the said various acts being connected by the disjunctive 'or'. The indictment charged a violation of Section 2087 by the use of the conjunctive word 'and'. A question was raised as to the indictment in that case, and the Court said:

It is a general rule that where a statute denounces as an offense two or more distinctive acts, things, or transactions enumerated therein in the disjunctive, the whole may be charged conjunctively and the defendant found guilty of either one. Section 1798, Vol. 4, Wharton's Criminal Law and Procedure; 27 Am.Jur., Indictment and Information, Sec. 104. This Court seems to have followed this general rule in cases involving other statutes. Cf. State v. Sam, 154 Miss. 14, 122 So. 101; Sauer v. State, 166 Miss. 507, 144 So. 225; Turner v. State, 177 Miss. 272, 171 So. 21; Brady v. State, 128 Miss. 575, 91 So. 277; State v. Clarke, 97 Miss. 806, 52 So. 691; Coleman v. State, 94 Miss. 860, 48 So. 181, and West v. State, Miss., 49 So.2d 271. 237 Miss. at 623-624, 115 So.2d at 732.

The court did not err on this ground.

The appellant moved that the State be required to elect the offense on which appellant would be tried, and also demurred to the amended indictment, both of which were overruled. A motion was made to quash the indictment. It was alleged that appellant was summoned before the grand jury and that he should be granted immunity under the constitutional clause providing against self-incrimination.

It was stipulated, however, that while the appellant was summoned before the grand jury, he answered in response to the first question propounded to him that he claimed his rights under the Fifth Amemdment, and he was thereupon immediately excused. He did not testify to one fact. Consequently there is no error in refusing to quash the indictment because of his appearance before the grand jury.

It is argued that partiality was evident in the trial as a whole. This argument is without any substantial basis. The trial covered three full days and approximately one thousand pages of transcript. Complaints that the judge urged dispatch and gave his reasons sometimes for his ruling on objections and insisted on proceeding does not manifest any partiality. Such things occur in every case of any length, and we have found no evidence in this record that would justify our holding that impartiality was lacking. The above questions are raised by the appellant and are discussed here because, as to them, it is unnecessary to discuss the actual facts shown on the trial.

This is a companion case to that of Smith v. State, 223 So.2d 657 (Miss.1969) and involved the burning of the residence of one Vernon Dahmer in which he and his family were sleeping; the burning being done at midnight on January 10, 1966, near Hattiesburg, Mississippe. The Smith case, supra, will give an 'overall picture' of the situation and the question here is whether the evidence was sufficient to connect appellant Byrd with the said offense. He was not actually present at the burning.

Two witnesses in this case testified that the appellant was present at two meetings of the Ku Klux Klan near Laurel, Mississippi. It was stated that one of these meetings was held on property belonging to Byrd, but there was a conflict as to this. At the first meeting, it was testified that Sam H. Bowers, the Imperial Wizard, spoke and was vehement in his condemnation of Vernon Dahmer and said that something had to be done about him. He wanted to burn him out or kill him, such acts being designated by Numbers 3 and 4. It was suggested that a 'dry run' first be made by the property for reconnaissance purposes. Byrd said that he could not go because of back trouble he was having. The 'dry run' was gone through and there was another meeting in another part of the county where the matter was further discussed, and Byrd was present. Although no one could testify as to what he said, witnesses did state that he made some remarks, but they could not understand them except for the statement about the condition of his back.

It is shown for one of the meetings that Byrd drove one of those who was to go on the run to that party's filling station in the filing station operator's car and then carried the car home with him where it was left with the keys in it, available to the owner who secured it the next morning before Byrd arose.

The Federal Bureau of Investigation obtained a statement from Byrd as to his connection with the matter, which statement consists of twenty-two typewritten pages. When the statement was objected to, a hearing was had by the judge out of the presence of the jury in which it was determined by the judge that the statement was given voluntarily and not as the result of any threats, force, or other wrongful inferences. The Court therefore overruled the objection to the statement and admitted it into evidence. Thereupon an objection was made to the introduction of the entire statement on the ground that there were statements therein that were inadmissible. The objection was likewise overruled. Because of the length of the statement, we only copy herein portions thereof. The man, Giles, mentioned in the statement, was shown by the evidence to be the owner of the car; the tires of which were shot and the car was abandoned on the side of the road.

I have been a member of the White Knights of the Ku Klux Klan of Mississippi (WKKKKOM) in Jones County, Mississippi, for approximately three years. I was Treasurer for the complete Jones County organization of the Klan for a Period of time and then was appointed County Senator by Sam Bowers, Imperial Wizard, WKKKKOM.

In connection with the Dahmer burning which occurred on the early morning of January 10, 1966, I wish to furnish the following information:

Sam Bowers called a special meeting on a Thursday night either two or three weeks prior to the time Dahmer's house was burned. My first knowledge of this meeting was when Billy Moss, a service station attendant at Laurel and a fellow member of the WKKKKOM, came to my home this Thursday night and asked if I could get away to go with him to a meeting. I went with Moss in Moss' Chevrolet Corvair to the meeting place, which was held on Masonite land in the Bogue Homa Swamp northeast of Laurel, Mississippi, within a few miles of my farm.

Bowers opened the meeting by relating that something had to be done about that Dahmer 'nigger' in Forrest County, whom he described as the 'big NAACP nigger there.' Bowers said the Forrest County Klan unit had not done anything about Dahmer, * * * Bowers said that he was going to take the Dahmer matter into his own hands and that Dahmer had to be stopped, and said, 'I want good men who are willing to stop him.'

* * * Nix assured the group that as the State Investigator for the Klan he had investigated the Dahmer matter and that Dahmer had to be done away with.

One of the members present, possibly Sessum, asked what was going to be done to Dahmer. Bowers replied, 'That will be decided when the run is made.' I interpreted this to mean they would make a dry run by Dahmer's place and at...

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17 cases
  • Whittington v. State
    • United States
    • Mississippi Supreme Court
    • March 16, 1988
    ...error. The evidence of guilt is this case was ample and we find no reversible error in the record. 215 So.2d at 872. In Byrd v. State, 228 So.2d 874 (Miss.1969), Justice R. L. Jones, speaking for the Court, The State was granted an instruction that the jury did not have to know that the def......
  • Lester v. State
    • United States
    • Mississippi Supreme Court
    • April 10, 1997
    ...has failed to show prejudice in the form of a defense becoming unavailable as a result of the amended indictment. Byrd v. State, 228 So.2d 874, 875-76 (Miss.1969) (holding that if the evidence and defenses are the same for the amended indictment and the original indictment, then the change ......
  • Graham v. State
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    • Mississippi Supreme Court
    • February 25, 2016
    ...be equally available under the amended indictment." Givens v. State, 730 So.2d 81, 87 (¶ 20) (Miss.Ct.App.1998) (citing Byrd v. State, 228 So.2d 874, 875–76 (Miss.1969) ). ¶ 26. At the close of trial, the court instructed the jury that it could find Graham guilty of sexual battery if it fou......
  • Bingham v. State, 53757
    • United States
    • Mississippi Supreme Court
    • June 1, 1983
    ...for error. The test for determining whether an accused has been prejudiced by an amendment to an indictment is stated in Byrd v. State, 228 So.2d 874 (Miss.1969): Section 2449 of the Mississippi Code of 1942 Annotated (1956) provides for the amendment of indictments in cases of formal defec......
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1 books & journal articles
  • Amending Indictments in Colorado: Rule 6.8, Colo. R. Crim. P
    • United States
    • Colorado Bar Association Colorado Lawyer No. 6-5, May 1977
    • Invalid date
    ...181. 24. 42 C.J.S. Indictments and Informations§ 240 at 1250. 25. See Shelby v. State, 246 So.2d 543 (Miss. 1971); Byrd v. State, 228 So.2d 874 (1969); Price v. State, 437 P.2d 330 (Alaska 1968); Commonwealth v. Binkiewicz, 342 Mass. 740, 175 N.E.2d 473 (1961). 26. Ex Parte Bain, 121 U.S. 1......

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