Fisher v. State

• Decision Date: 15 November 1926
• Docket Number: 25903
• Citation: 110 So. 361,145 Miss. 116
• Court: Mississippi Supreme Court
• Parties: FISHER v. STATE. [*]

110 So. 361

145 Miss. 116

FISHER v. STATE. ^[*]

No. 25903

Supreme Court of Mississippi

November 15, 1926

APPEAL from circuit court of Coahoma county, Second district, HON W. A. ALCORN, JR., Judge.

(In Banc.).

1. CRIMINAL LAW. In passing on application for change in venue supreme court looks to completed trial; if case was prejudged or other conditions prevented defendant from securing fair trial, refusal of change of venue is error; showing on application for change of venue must be specific; where first motion for change of venue is sought to be renewed on ground of newly-discovered evidence, subsequent motion should set forth facts subsequently discovered.

In passing upon an application for a change of venue this court looks to a completed trial, and if it appears that the case has been prejudged or that other conditions exist which prevent a defendant from securing a fair trial, the court will apply the corrective. The showing on the application for such change of venue must be specific. And where a first ruling is sought to be renewed on the ground of newly-discovered evidence, the motion should set forth the facts subsequently discovered.

2. CRIMINAL LAW. Confessions induced by fear, though not by spoken threats, are "involuntary" (Const. 1890 section 26).

Confessions induced by fear, though not aroused by spoken threats, are nevertheless "involuntary," because the fear which takes away the freedom of the mind may arise solely from conditions and circumstances surrounding the confessor.

3. CRIMINAL LAW. If on preliminary hearing by court there is reasonable doubt whether confession was voluntarily made, it must be excluded; confession appearing at any stage of trial to have been made under circumstances rendering it incompetent should be excluded.

If on preliminary hearing by the court there is a reasonable doubt as to whether a confession was freely and voluntarily made it must be excluded from the jury; and, after a confession is, on preliminary hearing by the court, permitted to go to the jury, either party may introduce the same evidence as was submitted to the court, and any additional evidence; and if it then appears, or if at any stage of the trial it appears, that the confession was made under circumstances rendering it incompetent, it should be excluded---citing Johnson v. State, 107 Miss. 196, 65 So. 218, 51 L. R. A. (N. S.) 1183.

4. CRIMINAL LAW. Where confession was obtained by inducements or fear, subsequent confession under such influence is not admissible, though person taking it states that accused need not make it, and that if he doesn't will be used against him; where one confession was illegally obtained, second confession, to be admissible, must be clearly shown not to have been made under influence producing first.

Where a confession has been illegally obtained from a person accused of crime by inducements held out, or by fear brought about by the person taking it, a subsequent confession made under the influence of such facts is not admissible although the officer or other person taking it states to the accused that he need not make the statement unless he desires to do so, and that if he does make it it will be used against him. In order to make the second confession admissible under such circumstances it must clearly appear that it was not made under the improper influence which produced the first---citing Jones v. State, 133 Miss. 684, 98 So. 150.

5. CRIMINAL LAW. Where defendant has to testify to show involuntary nature of confession, for state to cross-examine him about alleged statements during coercive proceeding and to contradict his evidence by showing such statements is error.

Where confessions are obtained by coercion and the defendant has to testify to show the involuntary nature of the confession, it is error for the state on cross-examination to ask him about alleged statements made during the coercive proceeding and contradict his evidence in reference thereto by showing such statements. This cannot be done under the guise of impeaching evidence. The evidence being coerced cannot be used at all.

6. CRIMINAL LAW. "Fair trial" requires accused's legal rights to be safeguarded and respected, a fair and impartial jury, a learned judge to instruct and pass on legal questions, and witnesses who can testify without fear and intimidation.

While no precise definition can be given defining what a "fair trial" is, it must be one where the accused's legal rights are safeguarded and respected. There must not only be a fair and impartial jury and a learned judge to instruct the jury and pass upon the legal questions, but there ought to be an atmosphere of calm in which the witnesses could deliver their testimony without fear and intimidation, and in which the truth might be presented and given credence without fear of violence.

HON. W. A. ALCORN, JR., Judge.

APPEAL from circuit court of Coahoma county, Second district, HON. W. A. ALCORN, JR., Judge.

John Fisher was convicted of murder, and he appeals. Reversed and remanded.

Cause reversed and remanded.

Rice & Crisler, Vincent J. Brocato and T. S. Ward, for appellant.

I. The court erred in overruling appellant's motion for change of venue. Bond v. State, 128 Miss. 792, 91 So. 461; Keeton v. State, 132 Miss. 768; Tennison v. State, 79 Miss. 713, 31 So. 422; Saffold v. State, 76 Miss. 258; Cavanah v. State, 56 Miss. 307; Brown v. State, 83 Miss. 645; State v. Gossett, 108 S.E. 290, 16 A. L. R. 1299; People v. Yoakum, 53 Cal. 571; Owen v. State, 83 Miss. 31; Magness v. State, 103 Miss. 30, 60 So. 8; Hemingway's Code (1917), section 1242.

II. The court erred in refusing to permit appellant to renew or re-open his motion for change of venue. Bell v. Ayers, 44 Conn. 35; Gibbs v. Buckingham, 48 Iowa 96; Bond v. State, 128 Miss. 792, 91 So. 461; Hudson v. Hanson, 75 Ill. 198; Wheeling v. Black, 25 W. Vt. 266; Riely v. Pellitier, 134 N.C. 316, 46 S.E. 734; 40 Cyc. 140; Looney v. Commonwealth, 115 Va. 921, 78 S.E. 625; Briasco v. Lawrence, 4 N.Y.S. 94; People v. Kingley, 8 Hun. (N. Y.) 233; Calloway v. State, 29 Ind. 442; Bernhammer v. State, 123 Ind. 577, 24 N.E. 509; Spencer v. Spencer, 136 Ind. 414, 36 N.W. 310; 27 R. C. L. 820-22; 40 Cyc. 150 and 151, note 2; Reeder v. Baker, 83 N.Y. 156; People v. Mabrier, 166 Pa. 1044; Fletcher v. Commonwealth, 123-Ky. 571, 123 S.W. 855; Etter v. State, 144 Pa. 560; State v. Weisengoff, 101 S.E. 450; Bond v. State, 128 Miss. 792, 91 So. 461; Purvis v. State, 71 Miss. 706; Eddins v. State, 110 Miss. 780, 70 So. 898.

III. The court erred in refusing to allow appellant to introduce certain evidence in support of his motion for a new trial. Bond v. State, 128 Miss. 792; Richburger v. State, 90 Miss. 806, 44 So. 792; Shuman v. Gavin, 15 Ind. 93.

IV. The court erred in overruling appellant's motion for a new trial. 2 Ld. Ken. 53 per L. MANSFIELD; Miller v. Ross, 42 N. J. 552; L. N. O. & F. R. R. Co. v. Crayton, 69 Miss. 152, 12 So. 271; Williams v. State, 99 Miss. 274, 54 So. 857; Weathersby v. State, 95 Miss. 300, 48 So. 721; Patterson v. Romspeck, 81 Ga. 808, 10 S.E. 9; Barrentine v. State, 51 So. 275; Roundtree v. State, 107 Miss. 166; Campbell v. State, 123 Miss. 113; McDearly v. State, 52 So. 796.

V. The court erred in permitting Dr. T. N. Dye over appellant's objection to testify to the physical condition of Lindsey Coleman on the morning after the water-cure was administered. McCall v. State, 29 So. 1003; Jones v. State, 65 Miss. 179; Newcomb v. State, 37 Miss. 382; Bonelli v. Brown, 70 Miss, 142; Wigmore on Evidence, sections 953, 1025, 1029; Fulton v. Hughes, 63 Miss. 61; MacMaster v. State, 81 Miss. 374; A. & V. R. R. Co. v. Thornhill, 106 Miss. 387, 63 So. 674; Davis v. State, 85 Miss. 416; Williams v. State, 73 Miss. 821, 19 So. 795; Bell v. State, 38 So. 795; Dunk v. State, 84 Miss. 452, 36 So. 609; Chism v. State, 70 Miss. 742, 12 So. 852; Garner v. State, 76 Miss. 515, 25 So. 363; Anderson v. State, 91 Miss. 407, 45 So. 359; Cooper v. State, 94 Miss. 480; Hitchcock v. Moore, 14 A. S. R. 481; Jones v. State, 16 Ala. 154, 74 Sol. 830; Simms v. State, 86 Miss. 412, 32 So. 546; Slaydon v. State, 102 Miss. 101, 58 So. 977; Jeffries v. State, 77 Miss. 757; Moore v. State, 102 Miss. 148, 59 So. 3; Mullins v. State, 41 Miss. 291; Ehman v. State, 40 So. 430; Clark v. State, 9 So. 820; Mitchell v. Tishomingo Sav. Inst., 56 Miss. 444; Cavanah v. State, 56 Miss. 299; Brister v. Joseph Bowling Co., 29 So. 830; Rucker v. State, 71 Miss. 685, 14 So. 534; 28 R. C. L. 613; Lambert v. Hamlin, 73 N.H. 138, 6 Ann. Cas. 713; Wigmore on Evidence, section 2384; Railroad Co. v. Messina, 109 Miss. 143, 67 So. 693.

VI. The court erred in refusing to permit appellant to cross-examine the witness Gant with reference to the reliability of the bloodhounds used in the investigation testified to by the witness on direct examination on behalf of prosecution. Wigmore on Evidence, sections 944, 1000-1003.

VII. The court erred in permitting the appellee to cross-examine the witness, Coleman, as to any alleged hoodoo-balls. Wigmore on Evidence, sections 516-18; Davis v. State, 85 Miss. 418.

J. A. Lauderdale, Assistant Attorney-General, for the state.

I. Motion for a change of venue. Only one of the jurors testified that he had any knowledge of the crime. After twelve men had been selected for the jury by the court tendered to the state and accepted by it, these twelve men were then tendered to the defendant. After considerable examination by attorneys for the defendant, they challenged one of the jurors for cause, which challenge was promptly sustained by the court. They then challenged one juror peremptorily. The panel was again filled and tendered to the defendant and they accepted the jury without...