Conn v. State, 46774

• Decision Date: 10 April 1972
• Docket Number: No. 46774,46774
• Citation: 260 So.2d 471
• Parties: J. M. CONN, Jr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 471

260 So.2d 471

J. M. CONN, Jr. v. STATE of Mississippi.

No. 46774.

Supreme Court of Mississippi.

April 10, 1972.

Crawley & Ford, David E. Crawley, Jr., Kosciusko and Louisville, for appellant.

A. F. Summer, Atty. Gen. by Karen Gilfoy, Sp. Asst. Atty. Gen., Jackson, for appellee.

PATTERSON, Justice:

J. M. Conn, Jr. was indicted and tried in the Circuit Court of Winston County for the murder of his wife. He was found guilty of manslaughter and sentenced to serve twenty years in the state penitentiary. From this sentence he appeals.

A summary of the facts, not contradicted in essential detail, is that on the evening of May 8, 1969, the appellant shot and killed Gloria Russell Conn, his wife, and one Clurry Freshour. Prior to this tragedy the wife of the appellant, accompanied by her four children, had visited in the home of Mrs. O'Neil Freshour some seventeen miles distant from her home. While there, they visited, popped corn and watched a movie on television. At about 9:30 p.m. Mrs. Freshour returned Mrs. Conn and her children to the Conn home. At the request of her husband who was ill, Mrs. Freshour was accompanied on this automobile trip over rural roads by her brother-in-law, Clurry Freshour. They arrived at the Conn Home, which was dark, about 10:30 p.m. Mr. Freshour accompanied Mrs. Conn and some of her children, if not all, into the kitchen of the home which was adjacent to the carport. This area was illuminated by the lights from the automobile. Freshour carried with him the popcorn popper and some soiled clothing of the children. Immediately after the lights were turned on in the kitchen, the appellant appeared from the rear of the house with a shotgun, stepped into the kitchen, and without conversation killed his wife and Freshour. Immediately thereafter, he left the kitchen, inquired the identity of Mrs. Freshour, who remained seated in the automobile, and directed her to remain until the sheriff arrived. The oldest daughter of the appellant hastened to the nearby home of her grandparents and summoned the sheriff. During the interval before the sheriff's arrival the appellant remained under the carport and refused Mrs. Freshour entry to the kitchen to ascertain the condition of his victims.

The sheriff arrived thereafter and upon entering the house found the dead bodies of Mrs. Conn and Mr. Freshour, both of whom had been killed by shotgun blasts. His investigation revealed that the appellant's automobile was parked to the rear of the Conn home where it could not be observed from the driveway to the carport. In response to inquiry as to whether the appellant made any statement, he testified: 'Well, the first thing I said was, Junior what in the world have you done done, and he immediately said, well, I caught them together in there and said well, I shot them both.' This statement was later repeated by the appellant in the presence of his attorney after he had been advised of his constitutional privileges.

The appellant's version of the affair was that he had departed his place of employment in Houston, Texas around noon of May 8, feeling ill from a diabetic condition and overwork, and had driven approximately 550 miles to his home in Winston County without pause other than to refuel his automobile and refresh himself with a soft drink or coffee. He testified that when he reached his destination, none of his family was found to be present. He thereupon drove his automobile to the rear of the house to wash bugs from the windshield. While so engaged, he observed some deer nearby and obtained his gun to shoot them. He followed the deer for a short distance, but failing to obtain a shot, was returning to his house when the following occurred:

A. . . . I was down there on the creek which is about-well, it's better than four hundred feet down there. It's back of the house. So when I saw their car and their lights drive on up, you know, in the yard then I come on to the house and I walked on in the house and I come up to the back of the house there, well, about the time I got, oh, I was, when I was coming through the carport there, I heard my son in there a crying and I said, my God, he's got another one of them headaches. He has migrane headaches and I just walked on in there where they was and he was standing there watching them a crying.

Q. Now then, as you walked in around the corner of the carport and toward the kitchen door, how were you walking?

A. Well, I was just poking along. I wasn't in no hurry, wasn't in no hurry. I was just walking normal.

Q. Do you mean you were walking normally?

A. Yes, sir, just you might say-well, I was give out. I was just poking along, just walking along. I was not leaping like no kangaroo.

Q. All right, now just tell us what happened?

A. Well, when I walked on in, I walked in the kitchen door, and when I walked in the house, I closed the door behind me. I just had the doorknob, I don't guess I ever turned the doorknob aloose, and when I walked in through the door and there they stood. Clurry 'Bulldog' Freshour hugging and kissing with his hand on my wife's bottom and I guess then that's when I-my kids was a screaming and a crying and that's when they was shot.

Q. Do you remember shooting them, Mr. Conn?

A. No, sir, I did not know when they was shot. I mean I didn't-well it seemed just like well you'd just walked up to something and your head flopped off. It just burnt you up. It burnt me up instantly.

Q. Do you remember pointing the gun at anyone?

A. No, sir, if I could remember such as that I wouldn't have ever pointed no gun at anybody.

The appellant also testified that on two previous occasions he had suffered a mental lapse or 'blank' spells. The first occurrence, at an unspecified time, was recalled as follows: 'I was in shock or something and I didn't know what I was doing and they caught me and put me in the hospital.' The next occasion occurred approximately two months prior to May 8 when the appellant requested a friend to take him home and while enroute, forgot where he lived and was only able to recognize his home by observing his wife and children in the yard. These episodes were evidently related to verify the appellant's sole defense, a mental 'blackout' at the time of the shooting.

The first assignment of error is that the court erred in not granting the appellant a continuance when one of his witnesses, a medical doctor, did not appear to testify though he had been timely subpoenaed. The witness, Dr. James R. Giffin, who had testified with regard to the appellant's mental condition at a previous trial, advised the attorneys for the defendant the evening before he was to testify the following day that he was ill and would not be able to appear. This information was related to the trial judge upon court convening the following morning prior to the formal motion for a continuance. The judge directed the sheriff to call and ascertain the witness's condition. The call was made and the sheriff reported to the court that he was advised that the witness had made his medical rounds at the hospital that morning and that 'he had left town to keep from seeing lots of patients on his day off.' The defense attorneys then conceded that the witness's testimony would be the same as that formerly given by him; whereupon the judge advised them that they would be permitted to introduce the former testimony and refused to continue the case which was then in progress. The appellant contends the mere reading of a prominent physician's testimony to the jury is not as effective as the witness personally testifying and therefore argues...