Evans v. State

• Decision Date: 19 February 1906
• Citation: 40 So. 8,87 Miss. 459
• Court: Mississippi Supreme Court
• Parties: PETER EVANS v. STATE OF MISSISSIPPI

40 So. 8

87 Miss. 459

PETER EVANS v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

February 19, 1906

November 1905

FROM the circuit court of, first district, Chickasaw county, HON EUGENE O. SYKES, Judge.

Evans the appellant, was tried for and convicted of murder, and appealed to the supreme court.

Appellant assigned as error the refusal of the trial court to compel the state to instruct the jury on the penalty as provided in Code 1892, § 1439, which is as follows:

"In any case in which the penalty prescribed by law upon the conviction of the accused is death, except in cases otherwise provided, the jury finding a verdict of guilty may fix the punishment at imprisonment for the natural life of the party and thereupon the court shall sentence him accordingly; but if the jury shall not thus prescribe the punishment, the court shall sentence the party found guilty to suffer death."

Appellant also raises the question of the competency of certain jurors. The voir dire examination of these jurors shows that they had no fixed opinion as to the guilt or innocence of the accused; that the opinion which they had formed was based on rumors, and could be removed by evidence; that none of them had talked to witnesses; that none of them had any prejudice against the accused; and all of them testified that they could give him a fair trial on the evidence.

Affirmed.

Ford & Haman, for appellant.

It is the duty of the court to see that a fair, competent, and impartial jury is selected to try every case, even though it be a civil case. Ferriday v. Selser, 4 How. (Miss.), 506; Gilliam v. Brown, 43 Miss. 641.

The trial court conceived the idea that the previous rulings of this court in the cases of Klyce v. State, 79 Miss. 652 (S.C., 31 So. 339); Fugitt v. State, 89 Miss. 159 (S.C., 33 So. 942), were overruled in the case of Gammons v. State, 85 Miss. 103 (S.C., 37 So. 609), and based all his rulings in the impaneling of the jury in this case on that theory, which was clearly wrong.

The court erred in refusing to compel the state, at the request of the defendant, to instruct the jury that if they pronounced the defendant guilty as charged, the death penalty would follow, unless they fixed the punishment at imprisonment in the penitentiary. Walton v. State, 57 Miss. 533; Spain v. State, 59 Miss. 19. The Walton case was reversed solely because the court refused to give the jury this instruction properly written. The court decided in that case that it is not enough to instruct the jury as to their power to fix the punishment at imprisonment for life, but that their verdict will be set aside unless they are informed that, if they do not so declare, the sentence will be that of death. To so instruct the jury is a part of the duty of the state, and if the accused requests it, the court should compel the state to give it. To hold otherwise would be to deprive the prisoner of the benefit of that information, which he is entitled to have given to them at the hands of the state. To compel the defendant to secure this information, and present the same to the jury in order to get the benefit of it, would be to impose upon him a burden in the trial. Such an instruction coming from the defendant would have a bad effect upon the mind of the ordinary juror; indeed, it seemed to leave the impression upon the minds of the jury in this case that the defendant was admitting that he was guilty of murder, and, as a last resort, was asking for mercy at the hands of the jury.

R. V. Fletcher, assistant attorney-general, for appellee.

All the jurors are competent under the rule laid down in Gammons v. State, 85 Miss. 103 (S.C., 37 So. 609).

The guilt of defendant is overwhelmingly established. That he lay in wait and shot his unsuspecting victim is beyond the shadow of a doubt. His own voluntary and oft-repeated statement shows his guilt. His story, as told on the witness stand, is enough to convict him. He had a fair trial, and the judgment should be affirmed.

OPINION

CALHOON, J.

Reversal is asked because, on the request of the accused, the court below refused to compel the state "to instruct the jury that, if they pronounced the defendant guilty...