Ford v. State
| Decision Date | 29 September 1969 |
| Docket Number | No. 45464,45464 |
| Citation | 227 So.2d 454 |
| Parties | R.B. (Bud) FORD v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Ottis B. Crocker, Jr., Bruce, for appellant.
A. F. Summer, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
Appellant R. B. (Bud) Ford was charged with murder in connection with the death of his wife. He was tried in the Circuit Court of Calhoun County and was found guilty of manslaughter. He was sentenced to serve a term of twenty years in the State Penitentiary. He has appealed to this Court. We affirm.
The proof in this case establishes that appellant left his home about 6 P.M. on the afternoon of May 4, 1968, and went with one Bunk Roberts to a place known as 'Trailer House.' According to the testimony of Bunk Roberts this was a place where beer was sold and that he and the appellant drank some beer. Appellant returned to his home shortly after 10 P.M. that night. There were several people at his home on this occasion and when he reached the room in which his wife and some of the other people were congregated, he fired a shot from a pistol which he had with him. Immediately after he fired his wife fell. She had been shot in the forehead. Appellant admitted that he fired a shot in the direction of his wife, but denied that the bullet from his gun struck his wife. He testified that he was shooting at a man who had his wife 'all hugged up.' He said, 'and so I just walked on inside the door, just on inside the door, about that far, and said to him, 'What's all this going on?' and he said, Appellant also testified that immediately after he shot, a gun was fired by some unknown person directly behind him. He said the bullet grazed his neck and struck his wife and this was the shot that killed her.
After the shooting appellant went to the home of D. B. Mallory and Mr. Mallory called the sheriff of the county and an ambulance. Prior to the time that the sheriff arrived appellant turned over to Mr. Mallory a .32 caliber pistol that he had in his possession. It was established by the proof that the bullet removed from the head of the deceased was not fired by the gun which was turned over to the sheriff.
The evidence is conflicting as to whether one or two shots were fired. Proof on behalf of the state was that only one shot was fired and that there was no one behind appellant when he fired the shot. While the proof on behalf of the defendant is to the effect that two shots were fired, one by appellant and another by some unknown person.
Appellant assigns numerous grounds for the reversal of this case. We have considered each error assigned but will only discuss the errors assigned which merit discussion.
Appellant urges that the action of the trial court in overruling his motion for a continuance was reversible error. The basis for the motion for continuance was the absence of a witness, which according to the proof was a citizen of Webster County but was then residing in Chicago, Illinois. We have carefully considered this assignment of error and cannot say that the trial court abused its discretion in refusing to grant the continuance under the circumstances of this case. The absent witness was shown to be in Chicago, Illinois, at the time of the trial. Appellant testified in support of his motion, but did not testify as to what effort, if any, he had made to secure the presence of this witness. He said the witness had been in Chicago about a month. The case was tried on October 2, 1968, and after his conviction the appellant filed a motion for a new trial during the term. By agreement, the motion for a new trial was set for hearing in vacation and it was heard on November 25, 1968. One of the grounds for a new trial was the overruling of appellant's motion for a continuance. However, appellant did not show that he had made any effort after the trial of the case to secure the attendance of the absent witness and have him present when the motion for a new trial was heard. Neither was an affidavit procured from the witness setting out the facts he would testify to on another trial. In King v. State, 251 Miss. 161, 168 So.2d 637 (1964), we set out the well established rules with regard to requirements that must be met by defendant when he seeks to put the trial court in error for failure to grant a continuance due to the absence of a witness. Appellant failed to meet these requirements, but we have considered the question of whether an injustice resulted from the failure of the trial court to grant the motion for continuance and we cannot say that an injustice resulted therefrom. Under such circumstances we are prohibited by the provisions of Section 1520, Mississippi Code 1942 Annotated (1956) from reversing this case on this ground.
Appellant's assignment of error number two is that the trial court committed reversible error in overruling his motion to quash the indictment on the ground that Negroes were systematically excluded from the grand jury which indicted him. The only proof offered by appellant is that there were no Negroes on the venire from which the grand jury was selected that returned the indictment against him. The record does not reveal whether there were any Negroes upon the special venire from which the jury was selected to try this case, but we presume there were, since no complaint is made. Appellant made no effort to show that there had been long continued practice of omission of Negroes from jury service in this county. The fact that no Negro was included on a particular venire is not enough to establish that there was actual discrimination. Especially is this true in this case where the state offered evidence to show that there was no actual discrimination practiced. Kennard v. State, 242 Miss. 691, 128 So.2d 572 (1961).
We find that the appellant failed to establish that he was denied due process and equal protection of the laws by reason of Negroes being systematically excluded from the venire which indicted him.
We find no merit in appellant's next assignment of error which is that the court was in error in refusing to grant four instructions requested by appellant. The trial judge wrote on each instruction that was refused the reason why it was refused, and we find that each instruction was correctly refused for the reason given.
Appellant also assigns as error the action of the trial court in overruling his objection to the admission in evidence of four photographs showing the body of the deceased. The record reflects that the photographs were made at the instance of the sheriff during his investigation on the night of the shooting. They show the location of the body, the blood stains, and reflect the location of the wound. Appellant urges that these photographs had no evidentiary value and were of such gruesome nature that they served no useful purpose other than to inflame the jury. We said in May v. State, 199 So.2d 635 (Miss.1967) that:
As a general rule, the fact that a photograph of deceased in a homicide case might arouse the emotions of jurors does not of itself render it incompetent in evidence so long as introduction of the photograph serves some legitimate, evidentiary purpose. Slyter v. State, 246 Miss. 402, 149 So.2d 489, 150 So.2d 528 (1963); Stokes v. State, 240 Miss. 453, 128 So.2d 341 (1961); Price v. State, 54 So.2d 667 (Miss.1951); Hancock v. State, 209 Miss. 523, 47 So.2d 833 (1950).
On the other hand, the introduction of gruesome photographs which have no useful evidentiary purpose, and which only arouse the passion and prejudice of the jury, should not be permitted to go to the jury. It is within the sound discretion of the trial judge to determine whether or not the photographs have a legitimate, evidentiary purpose. Martin v. State, 217 Miss. 506, 64 So.2d 629 (1953); Coleman v. State, 218 Miss. 246, 67 So.2d 304 (1953); 20 Am.Jur. Evidence §§ 728, 729, 730 (1939); 23 C.J.S. Criminal Law § 852(1) c, at p. 352 (1961); Annot. 159 A.L.R. 1413 (1945). (199 So.2d at 640).
The trial judge determined that the photographs had evidentiary value and admitted them in evidence. We certainly cannot say that he abused his discretion in so doing.
Appellant also assigns as error the refusal of the trial court to allow Mrs. D. B. Mallory to testify on behalf of the appellant. The rule was invoked and this witness was in the courtroom while her husband testified in the case. Outside of the hearing of the jury the trial court conducted a hearing and determined that the witness had violated the rule and also held that...
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Hill, In re
...State, 292 So.2d 159 (Miss.1974); Myers v. State, 268 So.2d 353 (Miss.1972); Peterson v. State, 242 So.2d 420 (Miss.1970); Ford v. State, 227 So.2d 454 (Miss.1969); Showers v. State, 227 So.2d 452 (Miss.1969); and Coburn v. State, 250 Miss. 684, 168 So.2d 123 (1964). It need also be noted t......
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...motion for a continuance. Dyer v. State, 300 So.2d 788 (Miss.1974); Saucier v. State, 259 So.2d 484 (Miss.1972); and Ford v. State, 227 So.2d 454 (Miss.1969). IV. Appellant next argues that he was denied the right to testify in his own behalf. The first time the court was informed the appel......
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Hill v. Thigpen, DC 84-230-D-O.
...State, 292 So.2d 159 (Miss. 1974); Myers v. State, 268 So.2d 353 (Miss.1972); Peterson v. State, 242 So.2d 420 (Miss.1970); Ford v. State, 227 So.2d 454 (Miss.1969); Showers v. State, 227 So.2d 452 (Miss.1969); and Coburn v. State, 250 Miss. 684, 168 So.2d 123 (1964). It need also be noted ......
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