Clark v. State

• Decision Date: 02 October 1950
• Docket Number: No. 37562,37562
• Citation: 48 So.2d 127,209 Miss. 586
• Parties: CLARK v. STATE.
• Court: Mississippi Supreme Court

Page 127

48 So.2d 127

209 Miss. 586

CLARK v. STATE.

No. 37562.

Supreme Court of Mississippi, Division B.

Oct. 2, 1950.

Dyer & Campbell, Greenville, for appellant.

John W. Kyle, Attorney General, Geo. H. Etheridge, Jackson, for appellee.

COLEMAN, Commissioner.

The appellant was convicted in the Circuit Court of Washington County of the crime of manslaughter, and was sentenced to the minimum penitentiary term of two years.

About 9:30 A.M. on November 30, 1948, a policeman, who had been called to Jeu Sing's grocery store in Greenville, found the aged Chinese fully conscious, standing behind a counter in the store. He was bleeding from his left ear. A sweet potato, estimated to weigh four or five pounds, lay on the floor nearby. The officer took the old man to a doctor, who examined him and dismissed him. That same afternoon the police were again summoned to the store, but found it locked. They broke open the door. Jeu Sing was lying on the kitchen floor in an unconscious condition. He was taken to the hospital and died without regaining consciousness.

The undisputed testimony of an eminent physician in Greenville was that death had been caused by 'an injury to the brain or blood vessels supplying the brain--hemorrhage', that this injury was inflicted by 'some blunt instrument, something that did not break the skin'; and that the injury could have been caused 'by a sweet potato thrown by an eighteen year old man' or 'by a fall such as hitting the side of a refrigerator' or like object. Jeu Sing made a statement to the police officer on the occasion of the first call, but because it was neither a part of the gestae nor a dying declaration the statement was not admitted in evidence.

On the morning of March 5, 1949, three months after the death of Jeu Sing, the appellant, eighteen years of age, picked up some chewing gum in a Chinese store, ran from the scene, and was arrested for that offense. While in custody, he was questioned with reference to the death of Jeu Sing, and, according to the testimony of four policemen, freely and voluntarily confessed that he killed the deceased by striking him a blow on the head with the sweet potato found on the floor of the store. He said that he had made a small purchase, there was some misunderstanding about the change he received, and Jeu Sing cursed him as he was leaving, whereupon he seized the sweet potato from a convenient bin, hurled it at the old merchant, and struck him on the side of the head. In fact, there were two confessions, both of like import, one made on the afternoon of the arrest, and another made the next morning.

It must also be noted that after his arrest, the appellant was taken to the store by the officer and there re-enacted the crime. He noted voluntarily that the cash register had been moved since the day that he struck the deceased. Two of his fellow-inmates in the county jail testified that he had told them he killed the deceased with a sweet potato, although the defendant testified in contradiction that he told them he was in jail for burning a barn.

As to the voluntary character of the confessions, the trial judge heard evidence, both for the State and for the appellant, outside the hearing and presence of the jury, as required in the case of English v. State, 206 Miss. 170, 39 So.2d 876. The Court held the confessions to have been freely and voluntarily given, and admitted them. Appellant testified that he gave and signed the written confessions, but claimed that he did so because one of the police officers threatened to blow his brains out if he did not confess. The exact language which the appellant attributed to the officer was: 'Come here, Alex. If you don't say you killed that Chinaman, I will blow your damned brains out.' In addition to this, the defendant produced several witnesses who swore that on the day of Jeu Sing's death, the defendant was picking cotton with them in a field considerably distant from Greenville.

Appellant assigns three separate grounds for the reversal of the conviction:

I. It is contended that the proof aliunde the confession was insufficient to establish the corpus delicti.

The facts of this case, already stated, are not the same, as but they are identically analogous to, those in Phillips v. State, 1944, 196 Miss. 194, 16 So.2d 630, 631. This is one of the most recent decisions of the Court on this question, and was a case in which the death penalty was inflicted. We quote: 'Our Court and others are committed to the principle that where there is substantial evidence tending to prove the corpus delicti, although not sufficient to prove it beyond a reasonable doubt, the confession is admissible for that purpose.' This Court has adhered to this principle in no less than nine reported cases. See Citations, Mississippi Digest, Criminal Law, k535(2). Also see reference in Greenlee v. State, 188 Miss. 387, 195 So. 312, to the holding in Heard v. State, 1882, 59 Miss. 545, that the reason for requiring proof of corpus delicti aliunde confession is to satisfy the mind that it is a real and not an imaginary crime which has been confessed.

The circumstances under which Jeu Sing was found, his condition when found, the testimony of the doctor as to the cause of death, all show that here was no confession to an imaginary crime. Appellant earnestly contends that aliunde the confessions it would be just as reasonable to assume that deceased fell over an exposed pipe, located in the store, or fell against some other object. On the other hand, reasonable men would conclude that had the deceased merely fallen accidentally, the police would not have been called.

II. The second contention is that the confessions were not shown to have been freely and voluntarily made.

The testimony as to the voluntary character of the confessions is voluminous. All the officers who were present or who had anything to do with it were placed on the witness stand and were very vigorously examined. They denied all use of threats, coercion, or hope of reward, and there is no testimony of anything of this kind, except that of the defendant already referred to.

Appellant makes the point that he was not warned that his confessions would be used against him. A free and voluntary confession made by an accused while under arrest is admissible, although accused had not been warned that what he says may be used against him. The numerous citations to this effect are collected in Mississippi Digest, Criminal Law, k518(1). Included is the case of McGee v. State, Miss., 40 So.2d 160, appeal dismissed and certiorari denied by the United States Supreme Court, 338 U.S. 805, 70 S.Ct. 77, 94 L.Ed. ----.

Unless the trial court's decision that confessions were voluntarily made, and therefore could be introduced in evidence, was manifestly wrong, the Supreme Court will affirm his action. Moore v. State, 207 Miss. 140, 41 So.2d 368. Appeal dismissed and certiorari denied, 338 U.S. 844, 70 S.Ct. 93, 94 L.Ed. ----. The long line of prior Mississippi cases consistently agreeing with this holding, are listed in Mississippi Digest, Criminal Law, k1158(4).

It is interesting to note, and in point here, that the murder of which Moore was convicted, and for which he was sentenced to suffer death, was committed on January 27, and he was not taken into custody, for investigation as to other offenses, until March 8 following.

Examination of the testimony of the officers in the case now before us, subjected to vigorous cross-examination, fails to reveal any reason that would permit us to say that the trial judge was manifestly wrong in holding the confessions in this case to have been voluntarily made.

Appellant cites us to Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224, but the facts in this case are not analogous to those alleged...