Ford v. State

• Decision Date: 05 June 1934
• Docket Number: 31064
• Citation: 155 So. 220,170 Miss. 459
• Court: Mississippi Supreme Court
• Parties: FORD v. STATE

155 So. 220

170 Miss. 459

FORD v. STATE

No. 31064

Supreme Court of Mississippi

June 5, 1934

Division A

Suggestion Of Error Overruled. July 16, 1934.

APPEAL from circuit court of Marshall county HON. THOS. E. PEGRAM Judge.

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

Affirmed.

Dean Belk, of Holly Springs, for appellant.

The court erred in not sustaining appellant's motion to quash the venire facias illegally drawn on the proof submitted in support thereof.

Section 26 of the Constitution; 8 R. C. L. 90, par. 48; Booker v. State, 81 Miss. 391; Cooley's Const. Lim. (5 Ed.) 388; Maurer v. People, 43 N.Y. 1; Adams v. State, 10 So. 106; Hopt v. Utah, 110 U.S. 574; Lewis v. U.S. 146 U.S. 370; Kansas v. Smith, 8 L. R. A. 774; Gore v. Arkansas, 5 L. R. A. 832; French v. Wisconsin, 21 L. R. A. 402; Utah v. Mannion, 45 L. R. A. 638; McQuillan v. State, 8 S. & M. 587; Dyson v. State, 26 Miss. 362; Foster v. State, 70 Miss. 755; Sherrod v. State, 93 Miss. 781; Warfield v. State, 96 Miss. 170; Rose v. State, 52 Miss. 391; McDay v. State, 117 Miss. 243; McClindon v. State, 96 Miss. 251; Scraggs v. State, 8 S. & M. 722; Stubbs v. State, 49 Miss. 716; Stanley v. State, 97 Miss. 860; Lee v. State, 101 Miss. 391.

The court erred in refusing to sustain defendant's motion to exclude the murder charge and submit the case to the jury on the charge of manslaughter.

Jones v. State, 98 Miss. 899; Butler v. State, 146 Miss. 505; Strahan v. State, 143 Miss. 519.

The court erred in not granting the peremptory instruction asked by the defendant at the conclusion of the testimony.

Shepherd v. State, 97 So. 755; Sides v. State, 36 Miss. 638; Riley v. State, 109 Miss. 286; Houston v. State, 117 Miss. 311; Patty v. State, 126 Miss. 98; Bedwell v. State, 130 Miss. 427.

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

At the time this special venire was drawn defendant had not been put in jeopardy, and the process of obtaining a list of veniremen from which a jury might thereafter be selected to try the case, is not, in and of itself, an inquiry into the guilt or innocence of the accused. This court has heretofore held that the constitutional provision, section 26, relates only to inquiries into the guilt or innocence of the accused.

Lipscomb v. State, 76 Miss. 223; Sec. 1276, Miss. Code of 1930.

In the case at bar, the defendant made his motion for a special venire, and it was sustained and a special venire drawn on. Tuesday, August 29, 1933, returnable on Saturday, September 2, 1933. At that time, so far as the record would indicate, no objection was made on the ground that the defendant was absent, although his attorney was there and negotiating the whole procedure. In view of the fact that no objection was made or taken until the venire had been summoned and in court, the defendant should be held to have consented to the drawing of the venire in his absence.

The Constitution, section 26, provides that an accused shall have the right to be heard by himself or counsel, or both (and there is no denial of that right anywhere indicated by this record); to be confronted by the witnesses against him (and there has been no denial of that right); to have compulsory process for obtaining witnesses in his favor (and he was not denied that right); and in all prosecutions by indictment or information, a speedy and public trial by an impartial jury of the county where the offense was committed (and that right has not been denied him). Where, then, have the provisions of that section been violated? Those are the only rights that are guaranteed him.

OPINION

McGowen, J.

The appellant was tried and convicted in the circuit court of Marshall county on an indictment charging him with the murder of Robert Scott, and the jury, by its verdict, fixed his punishment at life imprisonment in the state penitentiary.

We shall not undertake to give a detailed statement of the facts, but the evidence clearly shows, according to the record, that appellant admits that he slew the deceased because he was "scared" of the deceased, who had cursed the appellant.

Appellant made statements outside of court that he killed the deceased because he had cursed him and called him vile names. The appellant says he struck the deceased with a stick, which the jury saw, with his left hand, the blow landing to the front of the deceased's head on the right side. In this, the appellant was contradicted by many witnesses who said that the deceased's skull was fractured or soft an inch above the left ear. The wound ran about three inches back of the ear.

It is undisputed that the deceased was a one-armed man. A witness had walked with the deceased to the shop where the killing occurred, had left the deceased there and walked about twenty-five steps when he heard a lick, turned, and saw the deceased falling and the appellant laying down a stick with which, it was admitted, the killing was done. When this witness left Scott, he had a bucket hanging on the stump of his left arm. Appellant said the deceased put his right hand behind him and cursed him.

The record shows threats to kill by the deceased against the appellant, and likewise threats to kill by the appellant against the deceased. One witness testified that, on the day before the killing, the appellant pointed to a stick beside the door, and said: "Don't you bother it. I am going to kill Bob Scott with this stick." There were confessions on the part of the appellant admitted in evidence which were to the effect that the appellant said he killed the deceased because he cursed him and called him vile names. It was conceded that the deceased was unarmed.

The record discloses that when the case was called in the lower court the appellant had no attorney, and, thereupon, the court appointed a member of the bar to defend him. The record also shows that the appellant was arraigned and pleaded not guilty. On August 29, 1933, the case was again called, and the appellant, by his counsel, moved the court for a special venire, which motion was sustained, the special venire drawn, and on September 2, 1933, a motion was made to quash the special venire facias, to enter a mistrial, and to award a new special venire upon the ground that the appellant was not present in court at the time the order sustaining the motion for a special venire was entered, but was in custody in the county jail.

There was much testimony taken. The judge (as a sworn witness on the motion to quash) of the trial court was positive that the appellant was in court when the above proceedings were had. There was a conflict in the evidence, and the trial judge overruled the motion.

On the hearing of this motion, the attorney appointed to represent the appellant as a witness on the motion to quash made the following statement: "I desire to state this. Upon the completion of the calling of the witnesses for the defendant, the court announced him ready for trial. I then asked the court to have the sheriff bring the prisoner up that I desired a conference with all the witnesses and desired that the prisoner be present. The court turned to Mr. Jones, the sheriff, and directed him, in my presence, to bring the prisoner and turn him over to me. Mr. Jones then turned to deputy sheriff, Edwards and said, 'Get Will Ford.' I desire further to state that the prisoner, the defendant, was not in the court room at the time of the sustaining of the motion for a special venire facias, and that some fifteen or twenty minutes later, Mr. Edwards brought the prisoner, the defendant, in through the door of this court room, as all prisoners have been brought during this term, and seated him where the prisoners have been accustomed to sit during this term, and Mr. J. C. Miller, who was sitting there arose and gave the defendant his chair. I desire to further state that shortly after the arrival of the prisoner, Mr. Hindman Doxey walked up to me and asked me a question, was not the defendant in the court room when the venire was drawn."

Waiving aside the conflict in the evidence as to whether or not the accused was present in court, it appears to this court that the jury impaneled and sworn to try this case was fair and impartial. We are of the opinion that counsel could not knowingly, in the absence of his client, proceed with his motion, and, after the venire had been drawn and the case called for trial, take advantage of his knowledge not then disclosed to the court. He was, for every purpose connected with this trial, counsel for the accused, and according to his statement, the accused was brought into court within fifteen minutes after the entry of the order and the drawing of the special venire. It was his duty then to make known to the court that he desired to take advantage of...