Davis v. State

• Court: Mississippi Supreme Court
• Writing for the Court: Smith, C. J.
• Citation: Davis v. State, 170 Miss. 78, 154 So. 304 (Miss. 1934)
• Decision Date: 23 April 1934
• Docket Number: 31129
• Parties: DAVIS v. STATE

154 So. 304

170 Miss. 78

DAVIS v. STATE

No. 31129

Supreme Court of Mississippi

April 23, 1934

Suggestion Of Error Overruled May 21, 1934.

(In Banc.)

1. CRIMINAL LAW.

In murder prosecution, empty cartridge shell found at scene of fatal shooting, and which fitted pistol found in room where accused was arrested, held admissible.

2. CRIMINAL LAW.

In murder prosecution, introduction of pistol and evidence that it was found between mattresses of bed in room where accused was arrested held admissible, though officers searched room after taking accused outside the house; it not appearing that contents of room were changed between the arrest and the search.

3. CRIMINAL LAW.

In murder prosecution, evidence held to show that confession was voluntary and not coerced, rendering it admissible.

4. CRIMINAL LAW.

Instruction that if jury believed certain facts which constituted murder verdict must be, "We, the jury, find the defendant guilty as charged," held not erroneous because prohibiting jury from fixing defendant's punishment at life imprisonment, when considered with another instruction that they could fix punishment at death or life imprisonment.

5 HOMICIDE.

Instruction otherwise correct, that jury should not hesitate to convict because they are "unable" to say outside of evidence that accused might have been innocent of murder, held not prejudicial to accused.

6. HOMICIDE.

Instruction that, if jury believed accused was guilty of murder, the law will be as fully satisfied with punishment at life imprisonment as with death penalty, held properly refused.

ANDERSON, J., dissenting.

HON. W. H. POTTER, Judge.

APPEAL from circuit court of Hinds county HON. W. H. POTTER, Judge.

Pearlie Davis was convicted of murder, and he appeals. Affirmed.

Affirmed.

Ross R. Barnett and D. C. Enochs, both of Jackson, for appellant.

The objection to the first instruction here complained of is, that the court told the jury, if they found the defendant guilty, it was their sworn duty to inflict the death penalty.

To off-set the highly prejudicial effect of the first instruction for the state, the appellant sought, but was refused, the instruction that in the event the jury should find the defendant guilty, the law would be as fully satisfied with a penalty of life imprisonment as of death.

Mathison v. State, 87 Miss. 739, 770, 40 So. 801-812; Spain v. State, 59 Miss. 19.

By the third instruction for the state the court instructed the jury that "if you find the defendant guilty as charged you may return either one of the following verdicts," the first of which is the one the court instructed the jury, by the instruction complained of, it was their sworn duty to return, which in the third instruction of the court for the state the jury was advised carried the death penalty. This instruction is error.

The appellant denies he made any confession. But we submit, if he did, it could not have been free and voluntary.

Ammons case, 80 Miss. 592, 32 So. 9.

This court has held repeatedly that it is error to give instructions where there is no evidence on which to base them, or where they are inapplicable to the facts.

Hogan v. State, 46 Miss. 274; Co-operative Association v. McConnico, 53 Miss. 233; Kinnarie v. Gregory, 55 Miss. 612; Adams v. Power, 48 Miss. 450; Phillips v. Cooper, 50 Miss. 722.

And this, although they are correct in the abstract.

Parker v. State, 55 Miss. 414; Bowman v. Roberts, 58 Miss. 126; Railroad Co. v. Minor, 69 Miss. 710.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

The state procured an instruction which told the jury that if they believed certain facts beyond all reasonable doubt, that their verdict would be: "We, the jury, find the defendant guilty as charged." This was not error.

Mackie v. State, 138 Miss. 740, 103 So. 379.

Instruction number two known as the "hunting for doubts" instruction was not erroneous.

It is the same as the one considered in Powers v. State, 151 So. 730.

It is not correct to say that the state is indifferent as to which of the two verdicts may be given. It has denounced the penalty of death against murder; it permits the jury to say that another penalty shall be substituted for that prescribed by law as the appropriate one.

Borowitz v. State, 115 Miss. 47, 75 So. 761.

Appellant is not in position to complain of an unlawful search.

Cofer v. State, 158 Miss. 493, 130 So. 511; Polk v. State, 142 So. 480; Lee v. City of Oxford, 134 Miss. 647, 99 So. 509; Barton v. State, 165 Miss. 355, 143 So. 861; Millette v. State, 148 So. 788; Monette v. Toney, 119 Miss. 846, 81 So. 593; Love v. State, 142 Miss. 602, 107 So. 667; Reynolds v. State, 136 Miss. 329, 101 So. 485; Carter v. State, 145 So. 739.

Argued orally by Ross R. Barnett and D. C. Enochs, for appellant, and by W. D. Conn, Jr., for appellee.

Smith, C. J., Anderson, J., dissenting.

OPINION

Smith, C. J.

This is an appeal from a death sentence on a conviction of murder.

The deceased, Raftakes, was a small retail merchant doing business in the city of Jackson. On November 19, 1933, while he, his wife, Mary Raftakes, his daughter, and Pearl White, a nurse, were in Raftakes' place of business, according to the evidence, the appellant entered therein; Mary and the nurse then left the building, and according to the evidence of Mrs. Raftakes, the appellant asked the deceased to change a dollar for him. The deceased went to his cash drawer, in which there was forty-five dollars, and opened it, whereupon the appellant drew a pistol, shot Raftakes, took the money from the cash drawer, and departed. Mary and the nurse, who were only a short distance away, heard the shot, returned immediately to the store of Raftakes, arrived while the appellant was still there, saw Raftakes on the floor and the appellant with the pistol in his hand taking the money. Other witnesses saw the appellant leave the building. When the police officers arrived on the scene some time after the homicide, they found an empty pistol cartridge on a counter near where the deceased was killed. Thereafter, on, the same day, they arrested the appellant in the city of Jackson, in a room in a dwelling house occupied by the appellant and another. When the appellant was arrested he was taken outside the house, and three of the officers then went back to the room without the appellant, searched it, and found an automatic pistol between the mattresses of the bed therein, which appeared to have been recently fired, and which the empty cartridge found at the place of the homicide fitted. The chief of police testified that some time before the trial of the case was begun, he went into the courtroom, and the appellant, who was there, called him, saying he wanted to talk to him. Whereupon, he carried the appellant to a room adjoining the courtroom, who, among other things, then said to him, without any inducement whatever being held out to him so to do, that he was showing Raftakes the pistol and "it went off and killed him;" that he took the money, but did not know why he did so; and that he hid the pistol between the mattresses in the room where he was arrested.

The appellant denied making any confession to the chief of police, and his evidence, if true, established an alibi.

The assignment of errors complains of the introduction in evidence of the empty cartridge, the pistol and where found, the confession, and in the granting of two instructions for the state, and the refusal of the one instruction requested by the appellant.

The empty cartridge shell was clearly admissible in evidence.

We will not pause to inquire into the validity of the contention of the attorney-general that the objection to the introduction of the pistol, and the evidence of where it was found, was not seasonably made, for the evidence was admissible, even though we should hold that the objection thereto was seasonably made. The search was made immediately after, and as an incident to, a lawful arrest. That the appellant was not in the room when the search was made is of no consequence, for its does not appear that the contents of the room were, or might have been, changed in the interval between the appellant's arrest and the search. Cf. Millette v. State, 167 Miss. 172, 148 So. 788.

The ground of the objection to the confession is that it was coerced. In support of this, evidence was introduced...