Donahue v. State

Decision Date08 February 1926
Docket Number25190
Citation107 So. 15,142 Miss. 20
CourtMississippi Supreme Court
PartiesDONAHUE v. STATE. [*]

Suggestion of Error Overruled Feb. 22, 1926.

(In Banc.)

1 JURY. Opinion of juror formed on rumor does not disqualify him if he is fair and impartial.

Under section 2685, Code of 1906 (Hemingway's Code, section 2177), an opinion formed on rumor does not disqualify if the juror, in the opinion of the court after full examination, is found to be fair and impartial.

2. CRIMINAL LAW. Judgment of circuit court as to qualification of juror is prima facie correct.

The judgment of the circuit court as to the qualification of the juror is prima facie correct, and, unless this court, viewing a completed trial from the record, is satisfied that the jurors were not fair and impartial, the action of the trial court will be upheld.

3. JURY. Trial judge should resolve all doubts as to juror's fairness impartiality, and freedom from bias and prejudice in favor of accused.

In the examination of prospective veniremen in a criminal case where such jurors have an opinion formed on rumor which they testify would yield readily to the evidence, the trial judge should resolve all doubts in his mind as to their fairness impartiality, and freedom from bias or prejudice in favor of the accused person.

4. CRIMINAL LAW. Confession to officer made voluntarily is admissible against accused.

Where a person arrested for crime makes a confession to the officer having him in custody without any threat or inducement or expectation of favors shown, such confession is admissible in evidence, although the officer did not specifically state to the accused that such statement would be used against him.

5 HOMICIDE. Dying declaration admissible only when declarant has abandoned all hope of recovery; improper admission in evidence of dying declaration, to prove corpus delicti, held not ground for reversal.

Before dying declarations are received in evidence, the trial judge should be satisfied beyond all reasonable doubt that the declarant realized that he was in extremis when he made the statement. The declarant in such case must have abandoned all hope of recovery. But, where a dying declaration is improperly admitted to prove the corpus delicti the court will not reverse a conviction, where the defendant voluntarily took the stand and testified that he did the killing, and relates in detail the facts in reference thereto, where such facts, so related, show the defendant guilty of murder.

6. HOMICIDE. Erroneous admission in evidence of dying declaration, in death penalty case, is not ground for reversal, when fixing of penalty at imprisonment on new trial improbable.

The court will not reverse a case of conviction of murder carrying the death penalty because of an error in admitting a dying declaration, where the facts in evidence show that it is highly improbable that the jury on a new trial would fix the penalty at imprisonment for life.

HON. J. I. STURDIVANT, Judge.

APPEAL from circuit court of Kemper county, HON. J. I. STURDIVANT, Judge.

Patrick Donahue was convicted of murder, and he appeals. Affirmed.

Judgment affirmed.

L. P. Spinks, for appellant.

I. We are met at the very threshold with the proposition that of the twelve men who tried this defendant, nine of them said on their voir dire they had formed or expressed, or both, an opinion as to the guilt or innocence of the defendant. Many of the talesmen stated that they could not give the defendant a fair trial but that he would have to prove himself innocent. We submit that the voir dire examination of juror Watts as developed does not show that he was an impartial juror within the meaning of the law and that his opinion was not a mere impression, but an opinion that would combat evidence offered to overthrow it.

The record shows that the court had some little trouble in procuring a jury and it strikes us that in the effort to hasten the trial, the form of questions propounded led the jurors into committing themselves to their ability to try the case fairly and impartially. We submit that when a man is on trial for his life, no effort or patience should be spared in obtaining a jury, shown beyond every reasonable doubt to be fair and impartial. We submit further that when a juror evidences any hesitancy or doubt as to his ability to give the defendant a fair and impartial trial he should be excused; and when in reply to questions propounded to him the question of his fairness was here in doubt it would have been the better policy to ask the jury the direct question as to whether the opinion was a fixed opinion, which was not done by the court and the district attorney, but rather they, by the form of the questions, may have led the jurors into committing themselves to their ability to try the case fairly and impartially.

Section 26, Constitution of 1890, guarantees to every person accused of crime a trial at the hands of an impartial jury. Nelms v. State, 13 S. & M. 500, 53 Am. Dec. 94; Cotton v. State, 31 Miss. 504; Mabry v. State, 14 So. 267.

Since the enactment of section 2177, Hemingway's Code, this court has uniformly held that this statute was not meant to infringe upon the guarantees of section 26 of the constitution, but was meant to give the trial court some discretion in accepting on the jury, men of intelligence who had formed mere impressions or opinions, transitory in their nature. Jeffries v. State, 21 So. 526; Klyce v. State, 31 So. 339; Sheppric v. State, 31 So. 416; Fugitt v. State, 33 So. 942; Gammons v. State, 37 So. 609; Cook v. State, 43 So. 618. Therefore, section 2177, Hemingway's Code, does not make a juror competent merely because he takes oath that he can be fair and impartial, and it is still the duty of the trial court to see that a man is not tried for his life by a jury that is not fair and impartial.

It is clearly apparent here that the accused was not tried by the jury guaranteed to him by the constitution. Nine of the twelve jurors on their voir dire stated they had opinions, opinions that it would take evidence to remove, evidence that was good, positive, certain, definite. In other words these nine jurors in their own mind entertained a doubt as to their competency.

II. Coming now to discuss the admissibility of the dying declaration as testified to by Dr. Bell, we submit that the decisions in this state are uniform in holding that before the declaration is admissible, it must be shown beyond every reasonable doubt that same was made by the dying man under the sense of impending dissolution, or imminent death. Fannie v. State, 58 So. 2; Wilkerson v. State, 98 So. 770; Hany v. State, 92 So. 627; McNeal v. State, 76 So. 625; Lea v. State, 103 So. 368. Dr. Bell testified that the declarant asked and begged to be taken to a hospital; that he, the witness, told him that he could not be helped at any hospital in the world, that he was going to die. When pressed as to whether the dying declaration was made before or after the witness told him he would not get well, the witness replied that he did not know. We submit, under the authorities cited above, that it was not shown beyond reasonable doubt that the declarant at the time of the dying declaration had abandoned all hope.

III. As to the admissibility of the alleged confessions, while two different confessions were testified to, and by different witnesses, the same rule of law is applicable to the admissibility of each. The "confession" to C. M. Gully was not shown to have been free and voluntary and uninfluenced by external causes. Here the accused, in response to questions put to him by one of several officers, had stated that he came to Meridian in a particular way; was later confronted with another man who contradicted him as to how he came; was locked up in cell with officers around him; and after all this made the statements asked to be considered as confessions. A confession to be admissible must be freely and voluntarily made, without any inducement or without any threats and without fear. Carouthers v. State, 83 So. 809; Johnson v. State, 65 So. 218; Jones v. State, 98 So. 150.

In this case the defendant made no confession until trapped by being with Gus Lang, who stated he brought the defendant to Meridian. Being thus trapped, and with some confusion in his mind as to just what might happen, being surrounded and questioned by the officers of the law, he made a confession.

As to the confession made to the witness by Earl Temple, we submit that it was incompetent because it was, in a sense, wormed out of the defendant while in jail by the witness, an officer of the law.

We further submit that each of the confessions were inadmissible because the corpus delicti had not been proven independent of the confession. Bolden v. State, 54 So. 241, and cases there cited.

In conclusion, please allow it to be said that if the defendant was not tried by a fair and impartial jury as required by the constitution, the question of his guilt or innocence does not enter. Jones v. State, 52 So. 791. It is true that he took the stand and virtually admitted his guilt. So did the defendant in the Jones case. It is true that in this case there is no probability that any jury would render a verdict other than guilty on the evidence. But a jury fully and completely without bias and prejudice, unswayed by passion, might not hang him. If he was not tried by a jury fair and impartial under the constitution, then there was no trial in truth and in fact and he ought to have a new trial.

Rush H. Knox, Attorney-General, for the state.

I. From a careful reading of this voluminous record, I fail to find a motion to challenge a juror about whose competency there was the slightest question. In...

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