Franklin v. State

• Decision Date: 10 June 1940
• Docket Number: 34119
• Citation: 196 So. 787,189 Miss. 142
• Court: Mississippi Supreme Court
• Parties: FRANKLIN et al. v. STATE

196 So. 787

189 Miss. 142

FRANKLIN et al. v. STATE

No. 34119

Supreme Court of Mississippi

June 10, 1940

Suggestion Of Error Overruled July 1, 1940.

APPEAL from the circuit court of Jefferson Davis county, HON. J. C SHIVERS, Judge.

Jerome Franklin and another were convicted of murder and they appeal. Affirmed.

Affirmed.

O. C Luper and G. M. Milloy, both of Prentiss, for appellant Hilton Fortenberry.

In addition to the evidence of the several witnesses, the record discloses the publication of several articles published in every newspaper published in this section, as well as the local paper, the Prentiss Headlight, all of which showed the public sentiment was very high, and mobs were being organized, etc., and in addition to all of this the National Guard was called by the sheriff of the county to protect the defendants herein. The trial was had only eleven days after the crime was committed.

Saffold v. State, 76 Miss. 258, 24 So. 314; Tennison v. State, 31 So. 421, 79 Miss. 708; Brown v. State, 83 Miss. 654, 36 So. 73; Anderson et al. v. State, 92 Miss. 656, 46 So. 65.

In the following cases this court held a motion for a change of venue should be granted, viz., Eddin v. State, 110 Miss. 780, 70 So. 898; Keeton v. State, 132 Miss. 732, 96 So. 179.

This defendant was placed on trial eleven days after the crime for his life, in a strange county, amongst strangers, and where friends and relatives of the dead man lived. And in the case of Busby v. State, 170 So. 146, the court in passing upon the motion, said the defendant should have been given more time. The crime in that case was committed on May 9, 1934 and case tried on July 3, 1935. Whereas in this case at bar only eleven days elapsed between the day of killing and the date of trial, and surely the speed limit was exceeded.

The court permitted the officers to give evidence as to how they stopped the car without any warrant or search warrant. In other words, the search was unlawful.

Sec. 23, Const. of Miss.; Sec. 1227, Code of 1930; Elardo v. State, 145 So. 615; Mapp v. State, 114 So. 827; Miller v. State, 129 Miss. 774, 93 So. 2; Falconer v. State, 134 Miss. 253, 98 So. 691; Branch v. State, 157 So. 875; McGowan v. State, 185 So. 826; Messer v. State, 108 So. 144; Lenoir v. State, 132 So. 325; Ford v. City of Jackson, 121 So. 278; Butler v. State, 135 Miss. 885, 101 So. 193.

We respectfully submit that to take all of the testimony offered as true, which we say is not, and the further fact of the officers having been engaged in attempting to make an unlawful search that the defendants herein would be guilty of no crime greater than manslaughter.

Walker v. State, 189 So. 804; Jones v. State, 170 Miss. 581, 155 So. 430; Bergman v. State, 133 So. 208; Fletcher v. State, 129 Miss. 207, 91 So. 338; Stenson v. State, 80 So. 506; Strickland v. State, 81 Miss. 134, 32 So. 921; Mobley v. State, 68 Miss. 605, 9 So. 445; Cryer v. State, 71 Miss. 467, 14 So. 261; Taylor v. State, 194 So. 589.

We respectfully submit that the court erred in overruling the motion to quash the venire and enter a mistrial when Hammie Fortenberry, the venireman, being questioned for jury service, stated in the presence of all the jurors, "From what I have heard they are guilty." This statement was highly prejudicial to the defendant.

The court seemed to have granted the state instructions on the theory of a conspiracy when as a matter of fact the record doesn't show any conspiracy at all, and therefore the instructions given the state were not in accordance with the law and the proof in this case.

T. B. Davis, of Columbia, and E. J. Currie, of Hattiesburg, for appellant, Jerome Franklin.

The trial court erred in overruling the motion of Jerome Franklin for a change of venue.

Saffold v. State, 76 Miss. 258, 24 So. 314; Jamison v. People, 145 Ill. 357, 34 N.E. 486; 3 Am. & Eng. Enc. of Law, (1 Ed.), p. 97; Johnson v. Com., 82 Ky. 116.

In the case at bar the appellant, Jerome Franklin, was not only a stranger in Jefferson Davis County, he was a negro charged with having killed a white man. Not only was the deceased a prominent white man, but he was known and liked by practically every citizen in the county. Not only did mob violence threaten the appellant, but the aid of the state militia had to be enlisted. We believe this honorable court will take judicial knowledge of the fact that county officers in Mississippi do not call for the aid of the National Guard except in extreme cases.

The prisoner, whether guilty or not, is unquestionably entitled by the law of the land to have a fair and impartial trial.

Tennison v. State, 79 Miss. 708, 31 So. 421; People v. Yoakum, 53 Cal. 571; Brown v. State, 83 Miss. 645, 36 So. 73; Anderson et al. v. State, 92 Miss. 656, 46 So. 65.

We respectfully call the attention of the court to the significant and impressive fact disclosed by this record that twenty-five per cent (25%) of the first fifty-two (52) special veniremen voluntarily declined to qualify as jurors because they admitted that they had prejudged the case. The appellant exercised thirteen (13) peremptory challenges, and was then forced to trial by a jury unacceptable to him.

Magness v. State, 103 Miss. 30, 60 So. 8.

We anticipate that the argument may be advanced by the state that the granting or not of a change of venue was within the discretion of the learned circuit judge, that his action should be final. This honorable court well knows the tenseness that surrounds and permeates a trial of the nature of the case at bar, a case involving a negro charged with having murdered a prominent and popular white man. The trial judge may have been able not only to see, but to feel, the atmosphere that we submit existed, and it may have been asking too much of a trial judge to expect him to grant a change of venue. The real safeguard of the rights of a defendant is the power and courage of the supreme court to review and reverse the ruling of a trial judge in such cases.

Eddins v. State, 110 Miss. 780, 70 So. 898.

We earnestly submit that the facts disclosed by the record in the case at bar impel and compel but one conclusion, that the trial court erred, and grievously so, in refusing to grant the appellant a change of venue.

Keeton v. State, 132 Miss. 732, 96 So. 179.

The trial court erred in forcing the appellant, Jerome Franklin, to trial, over his objection, within eleven (11) days after the alleged commission of the alleged murder for which he was tried and convicted, and within eight (8) days after his indictment, and within three (3) days after his arraignment.

Busby v. State, 170 So. 146.

The trial court erred in overruling the appellant's motion to quash the special venire and to enter a mistrial when one of the special veniremen, Hammie Fortenberry, stated, in substance, in response to an inquiry of the court, and in the presence and hearing of the jurors then in the box and in the presence and hearing of all the remaining veniremen that "from what I have heard they are guilty."

The trial court erred in permitting the district attorney, over the objection of the appellant, to go into the witness room and there remain during the examination of the state's witnesses upon the question of whether or not probable cause existed for the search of the automobile of the appellant.

The trial court erred in permitting the witness, Barnes, to testify, over the objection of the appellant, about the alleged quantity of liquor in the appellant's car.

The people shall be secure in their persons, houses, and possessions, from unreasonable seizure or search; and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized.

Sec. 23, Const. of Miss.

There can be no lawful arrest of a person in Mississippi for the commission of a misdemeanor, unless (1) the officer making the arrest is armed with a warrant, or (2) unless the misdemeanor is committed in the presence of the officer.

Sec. 1227, Code of 1930, Letaw v. U.S. F. & G. Co., 120 Miss. 763, 83 So. 81; Butler v. State, 135 Miss. 885, 101 So. 193.

There can be no lawful search of the person, except as an incident to a lawful arrest.

There being no justification for the arrest or search of the person of the appellant, Franklin, on the occasion of the alleged homicide, the lawfulness or unlawfulness of the conduct of Marshal Polk and his associates, including the deceased, necessarily depends upon the right of the officer and his assistants to stop and search the automobile occupied by the appellant Franklin, upon the occasion in question. The marshal and his assistants admittedly had no search warrant. Did probable cause exist for stopping and searching the automobile? We say that it did not. Certainly the right of an officer acting upon probable cause can be no greater than the authority of an officer acting under a valid search warrant.

Elardo v. State, 145 So. 615; Mapp v. State, 114 So. 827; Miller et al. v. State, 129 Miss. 774, 93 So. 2.

The record shows affirmatively that the automobile actually stopped and searched belonged to and was in possession of the appellant, Franklin, and it therefore came within the constitutional guaranties.

Falkner et al. v. State, 134 Miss. 253, 98 So. 691; Elardo v. State, 145 So. 615; Branch v. State, 157 So. 875; McGowan v. State, 185 So. 826; State v. Messer, 108 So. 144; Lenoir v. State, 132 So. 325.

Marshal Polk and his associates could not justify their conduct on the occasion in question by any theory known to the law. If the law required no more than the name of the occupant of an automobile to justify its search, if no special designation or...