Diddlemeyer v. State, 45779

• Decision Date: 20 April 1970
• Docket Number: No. 45779,45779
• Citation: 234 So.2d 292
• Parties: Harold DIDDLEMEYER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 292

234 So.2d 292

Harold DIDDLEMEYER v. STATE of Mississippi.

No. 45779.

Supreme Court of Mississippi.

April 20, 1970.

Rehearing Denied May 11, 1970.

Thomas B. Sumrall, Gulfport, for appellant.

A. F. Summer, Atty. Gen., by Guy N. Rogers, Asst. Atty. Gen., and Samuel H. Wilkins, Wm. Edward Ellington, Special Asst. Attys. Gen., Jackson, for appellee.

INZER, Justice:

Appellant Harold Diddlemeyer was indicted, tried and convicted in the Circuit Court of Harrison County for the crime of murder and was sentenced to be imprisoned in the State Penitentiary for life. From this conviction and sentence he appeals and we affirm.

The evidence on behalf of the State establishes that about 8 a.m. on December 16, 1967, the body of Harry Bennett was found just outside the Gallery Apartments where Bennett resided. He had been shot several times. Edgar Roush, a resident in the apartment building, testified that about 3 a.m. on that morning he heard a noise which sounded like fire crackers shooting. He went to the window of his apartment and looked out but saw nothing.

The police found six empty casings of .32 caliber bullets at the scene of the crime. They had been fired from a .32 caliber automatic. An autopsy revealed that at least five bullets entered the body of Bennett. One bullet entered his neck and went through his head. Two bullets entered the left flank and two the left hip. The doctor testified that one of the bullets went through the right ventricle of the heart and in his opinion had caused instant death.

On March 21, 1968, appellant was incarcerated in the Duval County Jail in Jacksonville, Florida. He called the sheriff's office and stated that he wanted to talk to a detective. In response to his call Sgt. Richard Elian, an employee of the sheriff's office, was sent to the jail. Appellant informed Elian that he had a confession that he wanted to make. Elian then advised him of his constitutional rights and appellant told him that either on December 15 or December 16, 1967, he had shot and killed Harry Bennett in Gulf-port. He also told Elian that a friend, whose name he would not divulge, had hired him to do the killing and that his friend had furnished him with a small caliber gun with which to do the shooting. He also stated that this friend had carried him to Bennett's residence where they waited until Bennett came home. Appellant said that he had been paid $500 for doing the job.

Elian sent a teletype message to the Mississippi State Highway Patrol asking if there had been a murder of a person by the name of Harry Bennett around December 16, 1967. Later that same day Junie Tiblier, chief deputy sheriff of Harrison County, contacted Elian and requested that he ask appellant certain specific questions about the killing. Elian then asked the questions and furnished Tiblier with the answers. On March 23, 1968, Tiblier, Leslie Montgomery, chief administrator for the Police Department of Biloxi, and Detective Leroy Bourgeois went to Jacksonville for the purpose of investigating the murder of Bennett. These men and Sgt. Elian went to the jail where appellant was incarcerated. Appellant was acquainted with the Mississippi officers and they all knew him. Appellant was again advised of his rights and before making any statement he read and signed the statement to the effect that he had been advised of his 'Miranda rights'. He then told the officers that he had shot Harry Bennett some five or six times with a small caliber gun furnished him by a friend who had employed him to do the shooting and he had been paid $500 for doing the job. Mr. Montgomery wrote out the detailed statement made by appellant and with the assistance of the appellant prepared a sketch of the place where the shooting occurred. After reading the statement prepared by Montgomery, appellant signed it.

Appellant testified in his own behalf at the trial and although he admitted he had told the sheriff's office in Jacksonville, Florida, that he wanted to see a detective and at his request Elian came to the jail, and that he told Elian that he had shot Bennett and had been paid to do the killing, he denied that there was any truth in his statement to this effect. He also admitted that he signed the statement written by Mr. Montgomery setting out the details of the killing. He stated that his confession was untrue and that he had not shot Bennett and denied that he was in Biloxi on the date that Bennett was killed. When asked by his attorney why he had made the confession appellant stated:

Well, at the time I made this confession I was on escape from Mississippi State Penitentiary. I got arrested in Florida for armed robbery, a policeman got shot-I didn't have anything to do with the shooting-but anyway, we were sitting around the jail, locked up; myself and four other guys were talking one day, and this guy I was telling about this Harry Bennett murder case, and we just kept talking and one thing lead to another and he said-why don't you confess to it, maybe you can get out of these charges here because I was facing 20 years there, and I got a bad record, as all of you all will find out later, and so he said-why don't you confess to the murder charges and maybe they will send you back to Mississippi and this will be over with. He said they figure they got a good case against you if you confess, and you stand a chance of going to the gas chamber for murder, so I thought about it and decided I would do it, that is why I confessed to it, but I did not kill Harry Bennett.

He also stated that he had learned of the murder through newspaper articles and that is how he knew the details contained in his confession.

Appellant assigns as error nine grounds for reversal, but his brief does not conform to his assignment of errors and some of the errors assigned are not briefed. We will only discuss those errors assigned and briefed, which in our opinion merit discussion.

Point I.

Appellant contends under Point I of his brief that the denial of appellant's motion for a continuance constituted a general denial of due process of law and also constituted abuse of discretion on the part of the trial court. Appellant concedes that whether a continuance is granted is a matter that rests in the discretion of the trial court, but contends that the trial court abused its discretion in this instance. With this we cannot agree. All appellant's motions for continuance, except one, were made after the special venire was drawn. Mississippi Code 1942 Annotated Section 2506 (1956) provides as follows:

Application for continuance in capital cases shall not be entertained after the drawing of a special venire, except for causes arising afterward, unless a good excuse be shown for not having made the application before.

The motion for continuance filed prior to the time of the drawing of the special venire dealt with the drawing and make-up of the special venire and the court was amply justified in overruling this motion for continuance. The only motion filed after the drawing of the venire that merits discussion is the motion for continuance in order that appellant could secure the presence of a witness who resided in Jacksonville, Florida. The motion stated that this witness had advised appellant's attorney by telephone that she saw appellant in Jacksonville, Florida, at about 1:30 a.m. on December 15, 1967. Appellant requested that the cause be continued to the next regular term of court so that appellant could secure the presence of this witness. Appellant requested that the State procure the attendance of this witness at State expense. There is nothing in the record to indicate that appellant made any effort to have this witness voluntarily appear and testify. Neither did he attempt to procure an affidavit from her to support his motion for a new trial. In King v. State, 251 Miss. 161, 168 So.2d 637 (1964) we set out the well-established rules with regard to the requirements that must be met by defendant when he seeks to put the trial court in error for failure to grant a continuance due to the absence of the witness. There we said among other things:

Capital cases are required to be tried during the term in which the indictment is returned, unless good cause is shown to the contrary. See Dean v. State, 234 Miss. 376, 106 So.2d 501 (1958); Mississippi Code Annotated section 2518 (1942).

The last line in Mississippi Annotated Code section 1520 (1942) is as follows: 'A denial of the continuance shall not be ground for reversal unless the Supreme Court shall be satisfied that injustice resulted therefrom.'

The granting of a continuance is largely within the sound discretion of the trial court, and a judgment will not be reversed because the continuance is refused unless there has been an abuse of sound discretion. Woodruff v. State, 220 Miss. 24, 70 So.2d 58 (1954); Gatlin v. State, 219 Miss. 167, 68 So.2d 291 (1953). (251 Miss. at 170, 171, 168 So.2d at 640).

Under the circumstances of this case the trial court was justified in overruling the motions for continuance and its doing so did not deny appellant due process and we cannot say any injustice resulted therefrom.

Point II.

Under this point appellant urges that denial to appellant compulsory process for the attendance of out-of-state witnesses constitutes a denial of due...