Davis v. State

• Decision Date: 14 January 1929
• Docket Number: 27505
• Court: Mississippi Supreme Court
• Parties: DAVIS v. STATE

119 So. 805

151 Miss. 883

DAVIS v. STATE

No. 27505

Supreme Court of Mississippi

January 14, 1929

Division A

1. CRIMINAL, LAW. Where defendant was indicted, for murder circuit court properly overruled motion to send case to chancery court to determine defendant's insanity (Hemingway's Code 1927, section 1365).

Where defendant had been indicted by grand jury, a part of circuit court, on charge of murder, circuit court properly overruled motion to transfer case to chancery court to determine whether or not accused was insane, under Hemingway's Code 1927, section 1365 (Code 1906, section 1538), since jurisdiction of defendant's person was lodged in circuit court sitting as such and not in judge thereof sitting as conservator of the peace.

2. CRIMINAL LAW Defendant's counsel's motion, was insufficient to require court to halt murder trial and conduct preliminary examination on question of defendant's insanity.

Motion of defendant's counsel was not sufficient to require court to halt murder trial and conduct preliminary examination on whether accused was unable to conduct rational defense because of insanity, but defendant should have presented affidavit or offered witnesses to prove insanity or inability to conduct rational defense.

3. CRIMINAL, LAW. Submitting issue of defendant's guilt of murder along with issue of his insanity held harmless, where jury correctly found defendant was not insane.

Court's submitting to jury trying murder case on its merits issue of guilt or innocence of defendant, along with issue of defendant's insanity at time of commission of crime and of his insanity at time of trial, held harmless, where jury correctly found that defendant was not insane.

HON Gr. E. WILSON, Judge.

APPEAL from circuit court of Rankin county, HON. G. E. WILSON Judge.

Dock Davis was convicted of manslaughter, and he appeals. Affirmed.

Affirmed.

W. E. McIntyre, for appellant.

The question of the defendant's insanity can be submitted to the court either by a motion, as we did in this case, or by a suggestion as was done at the time of the arraignment of the defendant on an indictment charging him with murder. In either event, it became the duty of the trial court to stop the proceedings and first inquire into the defendant's sanity at the time of the trial. If that issue is determined in favor of his insanity the further proceedings are stayed until the defendant recovers his sanity, but if it is determined in favor of his sanity, the court then proceeds to try the defendant under the indictment. See Hawie v. State, 125 Miss. 589, 88 So. 167; Hawie v. State, 121 Miss. 197, 83 So. 158; 2 Bishop's Criminal Law Procedure (4 Ed.), 296; 22 Cyc. 1215, et seq.; 16 C. J. 789; 14 R. C. L. 59.

Rufus Creekmore, Assistant Attorney-General, for the state.

That the ruling of the court was correct in refusing to refer this cause to the chancellor of the district, or to the chancery clerk of the county for proceedings to determine the sanity of the defendant under the sections of the code relating thereto cannot be questioned. The circuit court had acquired jurisdiction of the cause, and its jurisdiction could not be ousted by the chancery court, or any other court. This precise question has been decided by this court in Hawie v. Hawie, 128 Miss. 473, 91 So. 131; McGriff v. State, 135 Ga. 259, 69 S.E. 115; 3 Bishop on Criminal Procedure 1641; 16 C. J. 789; 14 R. C. L. 605; Youtse v. U.S. 97 F. 937; Reg. v. Berry, 1 Q. B. Div. 447; Lermo v. State (Texas 1902), 68 S.W. 684; Kansas v. Gould, 40 Kan. 258, 19 P. 739; New Mexico v. Kennedy, 15 N.M. 556, 110 P. 854; State v. Khoury, 149 N.C. 454, 62 S.E. 538; Webber v. Commonwealth, 119 Penn. 223, 4 Am. St. Rep. 634; McWilliams, 254 Mo. 512, 164 S.W. 221; Baughn v. State, 38, L. R. A. 577.

OPINION

MCGOWEN, J.

The appellant, Dock Davis, was indicted, arraigned, tried, and convicted of manslaughter, on an indictment for murder, by the circuit court of Rankin county, Miss., and by the court sentenced to serve a term of ten years in the state penitentiary, from which conviction and sentence imposed he prosecutes an appeal here.

The appellant shot and killed Jim Torrence, his brother-in-law, at the home of the father-in-law of the deceased, appellant's father, on the 3d day of August, 1927. On that day, appellant drove up in a car to the home of his father, called him out and had a conversation with him regarding the sale of thirty-two acres of land to Torrence, the deceased. The deceased was sitting on the porch of the house of appellant's father while the conversation was taking place, and, upon appellant's saying something to him, got up and walked out to the car. Appellant then said, "I understand that you have bought this land," and told him that if he moved on it he would kill him. Torrence replied, "You will just have to kill me;" whereupon appellant reached in his car, got his gun, raised it, and then Torrence said, "Dock, give me a chance, let me get my gun," and turned and started back toward the house. While he was going toward the house, appellant shot him twice, the bullets striking Torrence in the back and killing him instantly.

Appellant's only defense in the court below was that he was insane at the time of the homicide, and that he was insane at the time of the trial.

The testimony of the witnesses for the state tended to show that the appellant was sane at the time of the commission of the crime and at the time of the trial, while the testimony of the appellant's witnesses tended to show that he was insane.

Counsel for appellant, upon his arraignment, filed a written motion suggesting to the court that the appellant "is insane and unable to make a rationale defense and moves the court that the question of the defendant's sanity vel non be inquired into and determined, as was held in Hawie v. State, reported in 88 So. 167, 125 Miss. 589." The motion was signed, but not sworn to by appellant's counsel. The court overruled the motion, entering an order to that effect, and to the effect that the issue of appellant's sanity "at this time and at the time of the commission of the crime shall both be submitted to the jury at the trial of the defendant on said indictment under his plea thereto of not guilty, said plea having been entered for said defendant by his attorney."

When the case was again called for trial, counsel for appellant announced to the court that appellant was "ready for trial on the issue of insanity at this time; that he is not ready for trial under the indictment and that it would be impossible for him to announce ready because of the insanity of the defendant, who is insane to the point that he cannot make a rational defense." Thereafter proof was taken on the issues of appellant's insanity and appellant's guilt or innocence under the indictment and his plea of not guilty as entered for him by his attorney. The court instructed the jury, that, if they found, at the time of the trial, that appellant was insane to the degree that he could not make a rational defense to the crime charged against him, the jury would so find; and the jury were then instructed that it would be their duty not to consider the case in the event they found the appellant so incapacitated. The court further instructed the jury that, if he was insane at the time of the homicide, it should return a verdict accordingly, submitting the question of appellant's sanity at the present time, at the time of the commission of the crime, and his guilt or innocence under the indictment.

There are five assignments of error, two of which only are pressed, and they seem to call for an OPINION.

The first is: "The court erred in overruling the motion filed by and on behalf of the appellant, as set forth on page 3 of the record in this court, said motion praying that the case be reported to the chancellor or clerk of the chancery court of Rankin county, Mississippi, as provided in section 1300...