Carter v. State

• Decision Date: 06 June 1927
• Docket Number: 26341
• Citation: 147 Miss. 171,113 So. 177
• Court: Mississippi Supreme Court
• Parties: CARTER v. STATE. [*]

113 So. 177

147 Miss. 171

CARTER v. STATE. ^[*]

No. 26341

Supreme Court of Mississippi

June 6, 1927

Suggestion of Error Overruled June 21, 1927.

(In Banc.)

1 HOMICIDE. Evidence held to sustain conviction for murder. Evidence in prosecution for murder held sufficient to sustain conviction.

2. CRIMINAL LAW. Supreme court cannot pass on qualifications of jurors where names of jurors comprising completed jury do not appear in record.

Where names of jurors comprising completed jury do not appear in judgment of court or elsewhere in record, supreme court cannot pass on qualifications of jurors as shown by the voir dire examination, since it is impossible to tell from record what jurors tried case.

3 JURY. Knowledge that codefendant had been previously tried and convicted would not disqualify prospective juror.

Knowledge that codefendant had been previously tried, convicted and sentenced to be hanged would not disqualify a prospective juror, who was otherwise qualified.

4. CRIMINAL LAW. Capacity of ten-year-old boy to testify cannot be raised for first time on motion for new trial.

Lack of qualification of ten-year-old boy to testify cannot be raised for first time on a motion for new trial, but must be raised while witness is on stand, so that court may have opportunity of inquiring into and passing on it while testimony is being given.

5 HOMICIDE. Malice is implied from intentional killing.

Malice is implied from any intentional killing which the law does not make justifiable or excusable.

6. HOMICIDE. Motive held established by testimony relative to rifling deceased's pockets after he was shot.

Motive for murder held sufficiently established by testimony of witness relative to defendant's rifling pockets of deceased after he was shot down and rendered helpless.

7. CRIMINAL LAW. Defendant in murder prosecution, failing to request manslaughter instruction, cannot, on appeal, complain of failure to give such instruction.

Defendant in murder prosecution cannot complain, on appeal, of failure to give manslaughter instruction if evidence had warranted it, where he failed to request such instruction.

8. CRIMINAL LAW. Defendant cannot complain of court's adjourning without opportunity for testimony on motion for new trial, where record fails to show offer.

Defendant cannot complain of court's adjourning without giving him opportunity to offer testimony in support of motion for new trial, where record fails to show that he offered any evidence in support thereof, or requested further time or opportunity therefor, or made known to court his purpose or desire to offer such testimony.

HON. T. E. PEGRAM, Judge.

APPEAL from circuit court of Chickasaw county, HON. T. E. PEGRAM, Judge.

James Carter was convicted of murder, and he appeals. Affirmed.

Judgment affirmed.

L. P. Haley, for appellant.

Appellant was a boy fifteen years old who was jointly indicted with White McAllister for the murder of Randle Logan. The sole witness for the state who saw the killing was a negro boy of ten years. This infant of ten years was not instructed by the court or any one before testifying as to the nature and meaning of an oath and the consequences that might result from his testimony.

No malice was proved by the state. No malice aforethought was shown. 1 Wharton's Criminal Law (11th Ed.), The burden of proof never shifts in a criminal case. Hampton v. State, 54 So. 722.

We think the instructions for the state are improper and inadequate, especially the instruction defining degrees of punishment. This instruction should have set out a definition of manslaughter, but it did not. 1 Wharton's Criminal Evidence (10th Ed.), page 669.

On the question of the jurors on voir dire examinations, we submit a few authorities that appear to us to be conclusive that this case ought to be reversed and remanded. Klyce v. State, 79 Miss. 652; Fugate v. State, 82 Miss. 189; Murphy v. State, 92 Miss. 203.

J. A. Lauderdale, Assistant Attorney-General, for the state.

I. Counsel for appellant argues that the state failed to prove malice. The record shows that this defendant and another hunted for deceased and when they found him, they engaged him in conversation and then shot and killed him, without justification, excuse or mitigating circumstances. Under these facts the law implies malice. This law is so well settled I do not deem it necessary to cite authority.

Counsel also argues that the state failed to prove motive. Where the crime is proved by an eye-witness, as it was in the case at bar, it is unnecessary to prove motive in order to make out a case of murder. However, in this case the state proved that after appellant and McAllister had murdered the deceased, they robbed his person. This robbery was the motive for the crime.

II. Joe Crumpton testified that his mother said he was ten years of age. No objection was made to this testimony. No motion was made to exclude the same. The court did not qualify him as a witness. Counsel now complain that this witness was allowed to testify without being qualified by the court. See Peters v. State, 106 Miss. 333.

The competency of this testimony was a judicial question to be determined by the court, if questioned by counsel for the defendant. It was not so questioned, and it was not incumbent upon the court to determine it prior to its introduction.

III. Counsel for appellant now complains that the appellant did not have a fair and impartial jury in the court below. The law is well settled that a defendant is entitled to a jury of twelve men who are fair and impartial. It is equally well settled that he is not entitled to any particular man or men on the jury. From the record in this case it is impossible to tell what jurors tried this case. It does not appear from the record that any juror objected to by counsel for defendant tried this cause. Donahue v. State, 107 So. 15.

IV. Counsel for the appellant complains that the court erred in not granting an instruction defining manslaughter and authorizing the jury to find the defendant guilty of manslaughter. Even though the testimony was such that it would justify the court in granting a manslaughter instruction, the defendant cannot now complain. He did not request such an instruction. See Tatum v. State, 107 So. 418; Grady v. State, 109 So. 728.

OPINION

COOK, J.

In the circuit court of the Second judicial district of Chickasaw county, the appellant, James Carter, and White McAllister were jointly indicted for the murder of Randle Logan. A severance was granted, and this appellant was tried and convicted, and was sentenced to suffer the death penalty, and from this conviction and sentence he has prosecuted this appeal.

The state offered two witnesses, Willie Logan, the wife of the deceased, and Joe Crumpton, who testified as to the identity of the deceased's assailants and the facts of the killing. The witness Willie Logan testified that her husband came home about 6 o'clock p. m., and went immediately to his barn where Joe Crumpton, who worked for him, was engaged in feeding the stock; that she was in their dwelling house preparing supper; that the appellant and White McAllister, who were well known to her, came to the house inquiring for her husband; that she told them where he was, and as they started in that direction her husband and Joe Crumpton came upon the scene; that they spoke to her husband and told him that they wanted to see him; that he told them to come with him to the hogpen, a short distance from the house, and they all proceeded in that direction; that in a few minutes she heard several pistol shots; that she started to the scene of the shooting and met Joe Crumpton, who informed her that they had shot her husband, and that she found her husband dead.

The witness Joe Crumpton, a boy, testified that he knew the appellant and White McAllister well, and had known them for some time; that he was working for Logan, and was with him just prior to and at the time of the shooting; that as he and Logan were going from the barn to the hogpen with corn for the hogs they met the appellant and McAllister near the dwelling house, and they all proceeded together to the hogpen; that White McAllister asked Logan when he was going to pay him for those clothes, and Logan replied, "Saturday morning;" that McAllister said, "Damn you, no, you won't; you will pay me right now," and thereupon shot Logan twice; that he then asked the appellant what to do, and the appellant replied, "Let him down," and at once drew his pistol and began shooting Logan; that when Logan fell, the appellant snatched the deceased's pocketbook from his hip pocket and both he and McAllister then fled.

The witness Willie Logan admitted, on cross-examination, that immediately after the homicide she told certain persons that she did not know who was with McAllister, but she testified that at the time she made this statement she was hysterical, nervous, and excited; that the appellant lived only about a half mile from her, and she had known him well for a long time; and that she recognized him when he came to her home just a few moments before the shooting. The witness Joe Crumpton testified, on cross-examination, that shortly after the homicide he told the officers that he did not know who killed the deceased, but he explained this by saying that he was then afraid to tell it, but that later in the night he informed them that the appellant and White McAllister killed him, and thereupon the officers arrested the appellant.

The defense interposed in the court below was an alibi. Several witnesses testified that they were with the appellant at the time...