Clark v. State

• Court: Mississippi Supreme Court
• Writing for the Court: STEVENS, J.
• Citation: Clark v. State, 113 Miss. 201, 74 So. 127 (Miss. 1917)
• Decision Date: 19 February 1917
• Docket Number: 19425
• Parties: CLARK v. STATE

74 So. 127

113 Miss. 201

CLARK v. STATE

No. 19425

Supreme Court of Mississippi

February 19, 1917

Division B [Copyrighted Material Omitted]

APPEAL from the circuit court of Claiborne county, HON. E. L. BRIEN Judge.

T. F Clark was convicted of an assault and battery with intent to kill and murder and appeals.

Appellant was convicted by the circuit court of Claiborne county of assault and battery with intent to kill and murder Dr. E. P. Jones. He was sentenced to a term of three years in the state penitentiary, and from this judgment prosecutes an appeal. The assault occurred at a regular meeting of the Masonic Lodge at Hermanville, and was provoked by discussion of certain charges presented by the committee on complaints and offenses against J. W. Clark, the brother of appellant. It appears that Dr. E. P. Jones, the party assaulted, had been president of the Bank of Hermanville while J. W. Clark, brother of appellant had, been cashier of this bank; that the bank had failed and gone into the hands of a receiver; that the cashier, J. W. Clark, had been indicted, once convicted by the circuit court, had appealed his case and obtained a reversal, and upon a second trial the jury had been unable to agree and a mistrial had been entered. Shortly after the mistrial upon the indictment charging J. W. Clark with embezzlement, Dr. Jones, as chairman of the committee on complaints and offenses, presented to the Masonic Lodge the report hereinafter copied in full. It appears that the Masonic Lodge building had burned, and the meeting at which the difficulty occurred, by special dispensation, was being held in the Presbyterian Church in Hermanville. The report is as follows:

"To the Worshipful Master, Wardens, and Members of

Pattona Lodge, No. 232, A. F. & A. M.:

"The committee of the above-named lodge, on complaints and offenses, having received information that Brother John W. Clark, a member of this lodge, has been guilty of un-Masonic, conduct, have investigated the same as required by rule No. 8 on Masonic discipline, and file the following specifications and charges:

"We find that prior to February 1, 1914, for a long time the said Brother John W. Clark was cashier of the Bank of Hermanville, and as such received money for deposit in said bank, and paid the same out on the checks of the depositors, and that a large number of people deposited money in said bank from time to time.

"We find that this lodge was a depositor in said bank, and that quite a number of members of this lodge were depositors in the said bank, and that a large number of women, and school teachers were also depositors in the said bank.

"We further find that on the 14th of March, 1914, the said Bank of Hermanville closed its doors, on account of lack of funds with which to do business, and has ever since been out of business.

"We find further that the reason the said bank was forced to close its doors and go out of business, was because the said John W. Clark, while cashier of the said bank, embezzled the funds of the said bank, including the deposits of all of the above-named depositors, and that the grand jury indicted him, the said John W. Clark, for embezzling the funds of the said bank to the amount of more than eighteen thousand dollars, whereby the said bank and its depositors have lost a great deal of money.

"Wherefore, we, the said committee on complaints and offenses, charge: That the said John W. Clark has been and is guilty of un-Masonic conduct, in this, that he has embezzled money belonging to the Bank of Hermanville.

"That he has and is further guilty of un-Masonic conduct, in the said embezzlement by appropriating to his own use money that was on deposit in the said bank, as the funds and property of Pattona Lodge No. 232, to the amount of one thousand dollars and some odd cents.

"That he, the said John W. Clark, was and is further guilty of un-Masonic conduct, by appropriating to his own use money that was on deposit in said bank by individual members of said lodge, thereby cheating, wronging, and defrauding brother master Masons.

"That he, the said Brother John W. Clark, was and is further guilty of un-Masonic conduct, by appropriating to his own use money that was on deposit by widows and orphans in the said bank, and thereby violating the cardinal virtues of our ancient and honorable institution, by such un-Masonic and disreputable conduct.

"And therefore your committee recommend that the said Brother John W. Clark be brought to trial on these charges.

"Very respectfully submitted, this 16th day of March, A. L. 5916, A. D. 1916."

In the regular order of business this report was read by Dr. Jones. When Dr. Jones had finished reading the report, Dr. A. L. Chapman, the professional partner of Dr. Jones and a brother-in-law of appellant, arose and addressed the lodge, urging that the charges be dropped pending a final decision by the court as to the guilt or innocence of J. W. Clark and pleading for harmony amongst all members of the lodge. Dr. Jones thereupon arose and responded to the pacific speech of Dr. Chapman and, to employ the exact language of Dr. Jones himself, stated: "I don't think there is a Mason in the sound of my voice that doesn't know he is guilty of these charges." This statement appears to have been first resented by a Mr. Torrey, who remarked: "I don't know whether I believe it or not, Doctor," and thereupon Frank Clark, the appellant, stated, "It's a lie." Dr. Jones concluded his remarks in a few words and then advanced around the stove, seems to have been between him and the place where appellant was sitting, and in going over in the direction of appellant addressed Mr. Clark and asked: "What did you say, Frank?" Clark then arose and stated, "I said that was a damn lie." Jones, still advancing, said, "You can't talk to me that way," at the same time gestulating with his right hand and pointing his index finger at appellant. The testimony is conflicting as to just how much, if any, appellant advanced towards Jones. The parties met near the seat upon which Frank Clark had been sitting, and, as they did so, appellant struck Dr. Jones in the side of the neck with a penknife and inflicted a serious wound. Jones shoved appellant back upon the seat where he had been sitting, and at that time fellow Masons interfered, separated the parties, and found that Dr. Jones had been cut. Dr. Chapman thereupon took charge of Dr. Jones and led him out of the lodge room to their office for medical attention. It appears that the church was dimly lighted by means of two coal oil lamps, one sitting upon an organ by which Dr. Jones stood to read his report, and the other stationed upon a small table in front of the master. The evidence is conflicting as to the distance between the front pew upon which Dr. Jones had been sitting and the station or seat occupied by the appellant. Witnesses estimate this distance from ten to twenty feet. It appears that Dr. Jones, instead of returning to the place where he had been sitting, proceeded toward appellant in the opposite direction and around the stove and behind the table at which the master of the lodge was sitting. There was evidence that the blood which spurted from the wound left its imprint upon the floor immediately in front of the bench on which appellant was seated.

It was the contention of the state that Dr. Jones was simply performing his Masonic duty in presenting the report, and that in approaching appellant Jones had no intention of doing Mr. Clark any bodily harm whatever, but that Jones expressly stated as a part of the res gestae, "This is no place for a difficulty." It is the theory of the defense that Dr. Jones assaulted and struck at appellant, and that appellant acted in self-defense and in apprehension of danger. It is the further contention of the defense that unnecessary remarks of Dr. Jones, assuming the guilt of John W. Clark of embezzling the funds of widows, orphans, and Masons, provoked the difficulty, and that appellant acted under the impulse of the moment and while aroused over what he regarded as an insult to his brother.

Numerous witnesses testified for and against the defendant, and the court submitted to the jury the issue of intent to kill and murder. The small knife used by appellant on this occasion was introduced in evidence and transmitted with the record of this appeal for the inspection of the justices of this court. The knife is a small, one-bladed, rather worn, and weak-backed instrument. The principal point relied upon by appellant is the alleged error of the court in submitting to the jury the question of intent to murder, it being the contention of appellant that no malice or deliberation whatever is shown by the proof.

Complaint is made also of the language and conduct of the district attorney in cross-examining some of the witnesses, and especially to the following questions and answers propounded to one of the witnesses for the defense:

"Q. You mean turn loose a man that cuts another man's throat? Is that your idea of justice? Cut another man's throat after he had called him a liar twice in a Masonic Lodge and you want to turn him loose; is that your idea of justice? (Objection. Overruled. Exception.) Witness: Repeat that please. Q. Your idea of justice is to let a man cut in the Masonic Lodge--you are a Mason? A. Yes, sir. Q. For a man to go in a Masonic lodge and another brother Mason prefer charges which it was his duty to do and he was required to do, and he makes charges not against one man but against his brother in an orderly, respectful, and perfectly proper manner, and his brother jumps up and calls him a liar twice, he says, 'what did you say, Frank?' and he calls him a liar again, and, because he walks over to...