Cummins v. State
| Decision Date | 08 November 1926 |
| Docket Number | 25555 |
| Citation | 110 So. 206,144 Miss. 634 |
| Court | Mississippi Supreme Court |
| Parties | CUMMINS v. STATE. [*] |
1. CRIMINAL LAW. Denial of change of venue held not error where evidence on motion was conflicting and voir dire examination was not shown, and defendant failed to exhaust his peremptory challenges.
It is not reversible error to overrule a motion for a change of venue where the evidence upon the motion is conflicting where the voir dire examination of the jury is not shown, and where the defendant fails to exhaust his peremptory challenges.
2. CRIMINAL LAW. Error in instructions referring to indictment for elements constituting rape held cured by defendant's instructions fully defining offense; instructions are to be construed together; instructions, which taken as a whole fairly charge law of case, are sufficient; in prosecution for rape, instructions taken as whole held sufficient.
While it is improper for the state in its instructions to the jury in denning an offense, to refer to the indictment for the elements constituting the offense, such error is cured by the defendant procuring instructions fully defining the elements of the offense. The instructions are to be construed together, one as supplementing or modifying the others; and if, taken as a whole, they fairly charge the law of the case that is sufficient.
APPEAL from circuit court of Yazoo county, HON. W. H. PORTER, Judge.
Marvin Cummins was convicted of rape, and he appeals. Affirmed.
Judgment affirmed.
Jones & Womack for appellant.
I. We recognize the latitude accorded courts in awarding a change of venue but in a case like the one here, where prejudice exists in the public mind, the court should accord to the defendant a more elastic rule than would prevail in other cases. In the case here it is shown that the defendant had no people residing in the county and no friends; on the other hands, the testimony on this motion shows that the prosecutrix had an influential family connection.
The organic law guarantees to every defendant a fair and impartial trial and when it is doubtful that such a trial can be had in the venue of the offense, the person on trial for his life is asking no more than the rights accorded to him by law when he requests that he have a trial in some other county; and there is no reason for a refusal, except the small additional cost. Eddins v. State, 70 So. 898.
The affidavit presented by the defendant under section 1242, Hemingway's Code, presents a prima-facie showing for a change of venue. Magness v State, 60 So. 8. The newspapers of the county, going into nearly every home in the county, gave out new stories of the circumstances assuming the guilt of the defendant of a most horrible crime, and influenced the public in a large measure and affected the verdict doubtless.
Threats of lynching were heard and prevailed upon the streets of Yazoo City. While the demonstrations shown in the case of Brown v State, 83 Miss. 646, 36 So. 73, appear somewhat more demonstrative and violent, still so far as the matter of the selection of a jury, there would be little difference between the case here and the case cited. See, also, Tennison v State, 78 Miss 708, 31 So. 421.
The motion to change the venue in this case seems to us to be supported by the following cases: Staffold v. State, 76 Miss. 708, 24 So. 314; Tennison v. State, 79 Miss. 708, 31 So. 421; Brown v State, 83 Miss. 645, 36 So. 73; Anderson v. State, 92 Miss. 656, 46 So. 65; Eddins v. State, 70 So. 898.
II. The last instruction asked for by the state is palpably incorrect. This instruction endeavors to state that if the defendant obtained the consent of the prosecutrix by fear, or accomplished his purpose by force, or by the use of intimidations and force accomplished his purpose, and the jury should so believe beyond a reasonable doubt, he is guilty. The language used leaves the question as to the cause of such fear, or the producing cause of fear on the part of the prosecutrix, to any fear, from any source, whether from the defendant or from a cause not projected by the defendant. The instruction as given does not qualify the statement of the law as to the "fear" on account of which she was caused to yield herself to the acts of the defendant.
If this instruction had stated that the defendant by means of threats, and by an exhibition of an ability to carry such threats into execution, to kill or injure the prosecutrix and thus by means of such threats and exhibition of ability to carry the threats out overcame her will and by these means gained her consent and had carnal knowledge of her, then the instruction would have embraced all the elements going to make up a proper charge; but from the instruction here many of the necessary elements going to make up the offense, which he undertakes to charge, are left out and the court erred in granting this instruction for the state.
J. A. Lauderdale Assistant Attorney-General, for the state.
I. The motion for change of venue. On the trial of the motion the state introduced fourteen witnesses. These witnesses were selected from different parts of the county, nearly every community in the county being represented by one or more witnesses. All of these witnesses testified that the defendant could get a fair and impartial trial in Yazoo county; that a fair and impartial jury could be selected in the usual way; that there was no bias, prejudice, or ill will against the defendant; that the people of the county had not pre-judged the case against the defendant; that they knew of nothing that would prevent a fair and impartial trial being had between the state and the defendant. At least, two of these witnesses testified that the comments they had heard with reference to the case were more favorable to the defendant than to the state.
The defendant introduced six witnesses, all of whom lived in Yazoo City. Three of these witnesses testified that appellant could get a fair and impartial trial; two did not know the sentiment of the people. The record does not show the voir dire examination of the jurors. It does not appear that any peremptory challenges were exercised. No objections nor exceptions were made and reserved to any juror nor to the panel.
This court determines the question not alone on the testimony introduced on the motion but from the completed trial and it should have the benefit of the examination of these jurors in determining this question. So far as the record shows every juror was qualified, fair and impartial. Indeed, it may be that not a man on the jury ever heard of the case until he was called as a juror. Long v State, 133 Miss. 33; Jones v. State, 133 Miss. 684; Wallace v. State, 108 So. 810.
II. Counsel for appellant contend that the last instruction granted is erroneous. I do not think so. The instruction is a correct announcement of the law; it follows the language of the statute. However, if I am mistaken in this, the error is cured by instructions Nos. 7, 9 and 10, granted to the defendant. Upton v. State, 108 So. 287.
The judgment of the trial court ought to be affirmed.
Argued orally by H. F. Jones, for appellant, and J. A. Lauderdale, Assistant Attorney-General, for the state.
Marvin Cummins, the appellant, was indicted, tried, and convicted of rape upon the person of Jennie Lou Vaughn, a female about fifteen years of age, and was sentenced to life imprisonment in the state penitentiary therefor. When the cause was called for trial, the appellant filed a motion for a change of venue, in which he alleged that the population of Yazoo City was about seven thousand; that the population of the entire county was about forty thousand; that there were two newspapers published in Yazoo City with a general circulation in the city and county, one having about two thousand two hundred subscribers, and the other two thousand five hundred subscribers, and that each carried an account of the occurrence with its comments thereon unfavorable to the defendant; that the defendant was arrested on the evening of July 26, 1925, the date of the crime, and as a matter of precaution, was placed in jail outside of Yazoo county; that shortly after his arrest a petition was circulated in Yazoo City, requesting the circuit judge to hold a special term of court for the purpose of trying the defendant; and that this petition was signed by some (the record does not disclose the number of people who signed said petition). It further alleged that, on the day set for the preliminary hearing before the justice of the peace, a crowd of some...
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