Dixon v. State

• Decision Date: 17 October 1932
• Docket Number: 30089
• Citation: 164 Miss. 540,143 So. 855
• Court: Mississippi Supreme Court
• Parties: DIXON v. STATE

143 So. 855

164 Miss. 540

DIXON v. STATE

No. 30089

Supreme Court of Mississippi

October 17, 1932

APPEAL from the circuit court of Humphreys county.

(In Banc.)

1 JURY.

Court properly refused to permit defendant to peremptorily challenge juror who had already been accepted by both state and defendant (Code 1930, section 1277).

2. CRIMINAL LAW.

Officer's exhibition of pistol held not "duress" rendering inadmissible statement made by armed suspect while arrest search, and disarming of suspect were in progress.

3 HOMICIDE.

Permitting question regarding what became of money taken off deceased held not reversible error, where defendant confessed he received part of money taken from deceased by another.

4. CRIMINAL LAW.

In murder prosecution, admitting bloody checks, sufficiently identified, found on floor near body, held not error.

5. CRIMINAL LAW.

Admitting money which circumstances tended to identify as having been in defendant's possession on night of homicide held not prejudicial error.

6. CRIMINAL LAW.

In murder prosecution, admitting package of money taken from defendant when arrested held not prejudicial, although testimony was uncertain regarding whether contents were same as when turned over to person taking them.

7. CRIMINAL LAW.

Witness not expert, examining discoloration on clothing when fresh, could testify it was blood.

8. HOMICIDE.

Granting instruction on murder and refusing instruction on manslaughter held proper under evidence showing groceryman was killed by person entering store burglariously.

HON. S. F. DAVIS, Judge.

HON. S. F. DAVIS, Judge.

Will Dixon was convicted of murder, and he appeals. Affirmed.

Affirmed.

John B. Gee, of Midnight, for appellant.

It is prejudicial error for the court to refuse defendant the right of challenge until his peremptory challenges are gone and before the jury is sworn to try the issue.

Section 1277, Code 1930; State v. Hunter, 118 Iowa 686, 92 N.E. 872; Fountain v. West, 23 Iowa 9, 92 Am. Dec. 405; State v. Peel, 23 Mont. 358; 35 C. J. 373.

Admission of confessions made under duress and fear --and not free and voluntary are unlawful and prejudicial and unfair to the extent of reversible error.

Ammons v. State, 80 Miss. 582; Corpus Juris, p. 728, sec. 1493; Maxwell v. State, 40, So. 615; Simon v. State, 37 Miss. 288; Whip v. State, 109 So. 697.

If the State is going to be permitted to introduce articles of evidence before identification with the crime or defendant upon the theory that later a witness will be introduced to identify the articles, the jury will get the damaging evidence, and, perhaps, never get the witness to identify it, to the great damage and prejudice to the defendant's rights in the case.

We respectfully submit the court erred in permitting the money (currency), and the checks to be introduced as evidence against this defendant and over his objection, and that the court erred in permitting the witness to testify that the money and checks bore marks that were made by "blood."

Corpus Juris, 618.

Spectacular exhibitions may be framed for the purpose of arousing prejudicial emotions, and all such improprieties should be thwarted or suppressed. The product of real evidence should not be permitted to exaggerate, and should not be allowed through cunning presentation to stir up passion or to unduly excite sympathy or pity, and so lead the jury to act upon sentiment instead of proof.

State v. Moore, 182 Ala. 38, 62 So. 184.

It is respectfully submitted that with the defendant entitled to all of the presumptions to be in his favor, it must be presumed that he was lawfully on the premises, he was not the aggressor in the fracas, and that such wounds as he inflicted upon the deceased, if any, was done after the attack of deceased upon the defendant, and that he was free from any felonious or unlawful intent. Hence the manslaughter instruction was proper and should have been granted for the defendant, the refusal of which was error.

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

Appellant complains of the action of the trial court in refusing to allow him to peremptorily challenge juror, Overby. A full panel acceptable to the State had been tendered defendant, who peremptorily challenged five of them. Thereafter, the state again presented a full panel to defendant, who attempted to challenge one of those whom he had previously accepted, but the trial judge refused to allow him to challenge him thus.

Under the statute, a full panel should be passed on and accepted by the state, and tendered to the defendant. He should then be required to peremptorily challenge all those of the panel so presented he desires. The state should then fill the panel, and again present it to the defendant, who should then be allowed and required to continue his challenge from those added by the state until he has exhausted those to whom he objects, within the limits of his challenges, when the state should again fill the panel, and present it to the defendant, and thus proceed until a jury is secured.

Gibson v. State, 70 Miss. 554, 12 So. 582; Funderburk v. State, 75 Miss. 20, 21 So. 658; Gammons v. State, 85 Miss. 103.

Appellant complains of the action of the court in not excluding the confession of appellant on the ground that the confession was not free and voluntary, but was obtained under duress. This is a question of fact to be determined by the trial court in the first instance, and in the absence of a showing that the court was manifestly wrong in allowing the confession to come in, this court will not reverse on this ground.

Tyler v. State, 131 So. 417; Durham v. State, 131 So. 422; Whittaker v. State, 142 So. 474.

The fact that the confession was made to officer having him in custody would not in and of itself render it admissible.

Jackson v. State, 140 So. 683; Thomas v. State, 124 So. 766.

The papers, checks, etc., which were submitted by the state, come in the same category as the money, and even if these papers were not properly identified as having come from the body of the deceased, or connected with the killing in any way, and was error to introduce them, still in view of the subsequent action of defendant or his counsel in asking that they be handed the jury for examination, error, if any, became and was harmless, and, therefore, in view of the numerous holdings of the court, this case will not be reversed on this ground alone.

Comings v. State, 142 So. 19; Wexler v. State, 142 So. 501.

The statute defining murder when committed in the commission of certain felonies provides that it shall be murder regardless of the design to effect death. There is no element of manslaughter in this case, and it was proper to give the instruction that is here complained of.

It was certainly not error to refuse the manslaughter instruction requested by the defendant.

Burnett v. State, 92 Miss. 826.

A motion for new trial, based on facts not known during trial, must be supported by affidavits of both accused and counsel showing ignorance of the matter which they charge is newly discovered, or this motion must be supported in like manner by oral proof in open court.

Grady v. State, 130 So. 117; Robertson v. State, 128 So. 772; Magee v. State, 122 So. 766.

OPINION

Cook, J.

The appellant was jointly indicted with Robert Woodward on a charge of the murder of Joe Rustici. There was a severance, and upon the separate trial of the appellant, he was convicted and sentenced to be hanged.

The facts upon which the conviction was based, as they appear from the record, are substantially as follows: Joe Rustici, who was sixty-eight years old, owned and operated a grocery store in Silver City, in Humphreys county, Mississippi. Adjoining this store-room, and opening into it, were a bedroom and kitchen used and occupied by him. Several years prior to the homicide the appellant had been employed by Rustici as a servant in and around the store and premises, and still had free access to all parts of the building, but, at the time of the homicide, the defendant, Robert Woodward, had succeeded him as the servant and attendant of the deceased. On the night of the homicide, the appellant, Robert Woodward, and a woman, Annie Laurie Bridges, were in and around the store and in the kitchen, where they prepared and ate supper. There were also several white men in the store when the, proprietor was ready to close, and all these parties went out in front of the store. Rustici closed the front door of the store and went into his bedroom. Robert Woodward and Annie Laurie Bridges went a short distance down the street and sat in the window of a vacant building, while the white men and the appellant stood conversing in front of the store about fifteen minutes. The white men then entered an automobile and drove away, leaving the appellant in front of the store.

The following morning the deceased was found lying dead in the storeroom in a pool of blood. There were many wounds and bruises on his body, the skull was crushed in several places, and his jaw and one of his shoulders broken. The furnishings of the storeroom were in confusion, and there was a large quantity of blood on the floor of the room. Near by were two twine-holders, one made of iron and the other of glass, and both were covered with blood. The iron twine-holder weighed about two and one-half pounds, while the glass one was slightly heavier. The pockets of the deceased's clothing were turned inside out, and the disorder in the rooms of the building indicated that they had been ransacked.

Adeline Wheeler, at whose home the appellant and Annie Laurie Bridges were staying, testified that at ten minutes after eleven o'clock, Robert Woodward was at her...