Eaton v. State

• Decision Date: 11 April 1932
• Docket Number: 29814
• Court: Mississippi Supreme Court
• Parties: EATON v. STATE

140 So. 729

163 Miss. 130

EATON v. STATE

No. 29814

Supreme Court of Mississippi

April 11, 1932

Division B

1. CRIMINAL LAW.

Ruling out defendant's questions to jurors as to effect on them of federal government's participation in prosecution held not prejudicial error (Code 1930, section 2030).

2 WITNESSES.

Defendant's motion for subpoena duces tecum to produce notes of evidence taken by federal officers investigating killing, for purpose of impeaching witnesses, held properly denied as not stating facts expected to be proved (Code 1930 section 744).

3. CRIMINAL LAW. Instruction that, if defendant shot with deliberate design at moment to kill deceased, he was guilty of murder, held not prejudicial error as assuming that he fired fatal shot.

Every conceivable feature of defendant's defense was presented by other instructions, some of which plainly stated that question whether defendant fired fatal shot was for jury.

4 HOMICIDE.

Evidence of conspiracy to kill officer held sufficient to justify instruction that, if defendant fired at deceased or abetted killer, he was guilty of murder.

HON. THOS. A. JOHNSON, Judge.

APPEAL from circuit court of Prentiss county, HON. THOS. A. JOHNSON, Judge.

Ruey Eaton was convicted of murder, and he appeals. Affirmed.

Affirmed.

E. K. Windham, of Booneville, for appellant.

The trial court erred in overruling the motion for subpoenas duces tecum to issue to Ray Ligon, United States Marshal, and Houston Wood, official Court Reporter for the United States District Court for the Northern District of Mississippi, requiring them to produce the records and proceedings of the investigation into the alleged killing of Clyde Rivers, which investigation was held in the town of Booneville by the state and federal authorities immediately following the death of the said Rivers.

The court in which any action or suit is pending may on good cause shown, and after notice of the application to the opposite party, order either party to give to the other within a specified time, and on such terms as may be imposed, an inspection and copy, or permission to take a copy, of any books, papers or documents in his possession or under his control, containing evidence relating to the merits of the action or proceeding, or of the defense thereto, etc.

Section 744 of the Mississippi Code of 1930; Knox v. L. N. Dantzler Lumber Company, 114 So. 873.

The subpoena duces tecum will issue in a proper case to compel the production of books or records, when necessary to promote the ends of justice.

Assurance Society v. Clark, 80 Miss. 471, 31 So. 964; Robertson v. Greenwood Lumber Co., 90 So. 487.

The trial court erred in sustaining objections to certain questions propounded to the jurors on their voir dire examination.

A juror who might feel that his liberty would be jeopardized in case he voted for an acquittal of appellant, would not be competent to pass upon so great an issue as presented in the trial of this case, neither would be a juror who would be influenced because of the fact that the deceased was a federal officer, or because the federal government was assisting in the prosecution of this case.

We think the questions requested to be propounded to the jurors in this case were as pertinent as those sought in the case of Hale v. State, 16 So. 387.

16 R. C. L., page 246, section 63.

The trial court erred in granting the following instruction for the state:

The court instructs the jury that malice aforethought mentioned in the indictment does not have to exist in the mind of the slayer for any given length of time, and if at the very moment of the fatal shot the defendant, Ruey Eaton, shot with a deliberate design to take the life of Clyde Rivers, and not in necessary self defense, real or apparent, then it was as truly malice, and the act was as truly murder, as if the deliberate design had existed in the mind of Ruey Eaton for minutes, hours, days or weeks, or even years.

This instruction assumes as a fact that appellant fired the fatal shot, and that the only question for the jury to determine was whether or not he fired same "with a deliberate design to take the life of Clyde Rivers and not in necessary self defense, real or apparent." No witness claimed that appellant fired any of the shots; appellant denied having fired any of them.

King v. State, 23 So. 766; Stringer v. State, 38 So. 97; Cunningham v. State, 39 So. 531; De Silva v. State, 47 So. 464; 14 R. C. L. pages 738, 739 and 740; People v. Buckner, 3 A.L.R. 1323; McAndrews v. People, 24 A.L.R. 655; Karnes v. Commonwealth, 4 A.L.R., 509; State v. Bonning, 25 A.L.R. 879.

The trial court erred in granting the state's instruction:

"The court instructs the jury that if you believe from all of the evidence in this case, beyond a reasonable doubt, that at the time Clyde Rivers was killed that Ruey Eaton either fired one of the shots which struck him, or fired one of the shots at him, or in any way aided or abetted the person or persons who did the killing of the said Rivers, then, and in that event, the said Ruey Eaton is as guilty as though he himself had fired the shot which caused said Rivers' death."

Crawford v. State, 97 So. 534.

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

The prosecution in the lower court proceeded on the theory that the persons jointly indicted on this murder charge, the appellant and his brothers, Clovis, Dell and Edgar, had banded together in a conspiracy to prevent the arrest of Ruey Eaton; even to the point of taking the life of him or them, who should undertake to so arrest him; and that the killing of Clyde Rivers was in pursuance of their premeditated design to take human life, if necessary, to prevent such arrest.

Appellant in his motion to require subpoenas duces tecum issue to Ray Ligon and Houston Wood to require the said Ligon and Wood to furnish the defendant either the originals or a copy of all the proceedings had in the investigation held in the court house at Booneville, relative to the alleged slaying of Clyde Rivers, based his right to such motion upon the fact that certain witnesses had testified at this investigation and that since said investigation all of the named parties had been subpoenaed as witnesses for the state in this cause and that he was informed and believed that the evidence said witnesses gave at said investigation was materially different from that which they intended to offer at the trial of the cause; that he had no way of contradicting the testimony given by these witnesses except by the introduction of the notes of the stenographer, which he was seeking to obtain.

The provision of the statute (Sec. 744, Code of 1930), requires that the books, papers or documents referred to in the statute must relate to the merits of the action or proceeding or to the defense thereto.

Stevens v. Locke, 156 Miss., pages 193, 194.

The appellant and his attorney had the right, under the law, to question the jurors who were being empanelled with reference to challenge for cause and for peremptory challenges. This is provided by statute, but it does not mean that this freedom of examination shall extend to the extremes insisted on by the appellant. The court should never have allowed the question to be asked of the jury.

Nowhere in the record does it appear that any objection was ever made, that the jury in this case was not fair and impartial. It is fair therefore for this court to assume as a fact that the jury had qualified as being fair and impartial as required by section 2030 of the 1930 Mississippi Code.

The instruction complained of by appellant is not subject to the construction placed upon it by appellant. It does not assume as a fact that Ruey fired the fatal shot, but says that "if the defendant, Ruey Eaton, shot with deliberate design, etc.," and, therefore, leaves it to the jury to say whether he did or not. This is not assumption of fact but puts it fully up to the jury to say whether it was or not.

But were there error in this instruction, such error was cured by the giving of instruction No. 19, page 195, of the record, wherein the court said:

"The court charges the jury that there is no direct proof in this case that the defendant killed Clyde Rivers, but the state is relying solely on circumstantial evidence, etc."

An accessory before the fact is one who is not present at the time of the commission of the offense, but counsels progress or demands the commission of the crime.

Unger v. State, 42 Miss. 642.

One who aids, assists and encourages a murder, is a principal and not an accessory, and his guilt in no wise depends upon the guilt or innocence, the conviction or acquittal, of any other alleged participant in the crime.

Dean v. State, 85 Miss. 40.

Each person present, consenting to and aiding in act leading to a commission of a crime is a principal.

Hogsett v. State, 40 Miss. 522; McCoy v. State, 91 Miss. 257; Douglas v. State, 44 So. 817.

J. A. Cunningham, of Booneville, and W. D. Conn, Jr., Assistant Attorney-General, for the state.

Suggestion No. 1, predicated upon the trial court's action in refusing to stop the trial for a writ of duces tecum to issue to Ray Ligon and Houston Wood, and perhaps others, and also for his request for an order on the state to produce certain documentary evidence in the form of affidavits which he supposed that Ray Ligon or Houston Wood might have in their possession, did not in any way meet the conditions necessary to entitle him to such remedies. There was no good cause shown, and chapter 744 of the Mississippi Code of 1930 was not complied with by the defendant and his counsel in their showing so as to entitle them to such a remedy.

Stephens v. Locke, 125...