Frierson v. State, 43088

• Decision Date: 08 June 1964
• Docket Number: No. 43088,43088
• Parties: William FRIERSON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 342

165 So.2d 342

250 Miss. 339

William FRIERSON v. STATE of Mississippi.

No. 43088.

Supreme Court of Mississippi.

June 8, 1964.

Grayson B. Keaton, Tate Thigpen, Picayune, for appellant.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.

PATTERSON, Justice:

The appellant, William Frierson, was tried and convicted in the Circuit Court of Pearl River County on an indictment charging him with committing an assault and battery with intent to kill one Dallas Frierson. He was sentenced to serve a term of ten years in the State Penitentiary, from which he appeals.

He urges four grounds for reversal of the judgment of conviction, namely (1) the lower court erred in overruling appellant's motion for a mental examination, and in refusing to allow appellant's counsel to re-examine him relative thereto, and in refusing a new trial on this ground; (2) the lower court erred in granting State instruction No. 2; (3) the court erred in refusing appellant's instruction No. 3; and (4) the verdict of the jury was against the weight of the evidence and contrary to law.

The evidence reflects the following facts. The defendant is separated from his wife who has the custody of their minor child. The mother and child live with her mother and stepfather, Dallas Frierson, in the home of Mrs. Cammack, in the City of Picayune, Mississippi. Mrs. Cammack is the grandmother of appellant's wife.

The appellant is employed as a construction worker in New Orleans, Louisiana. On October 4, 1963, appellant called his wife at approximately 11:30 A.M. to inform her that he was on his way to Picayune to visit his baby and that he would like to pick the child up at one o'clock on that date. Pursuant to this conversation, defendant arrived at the home of his wife and baby just prior to one o'clock and came up to the front and blew his automobile horn. There being no response from within the home, he went some several blocks away to a telephone and called and asked his wife to bring the baby out to him. Upon returning he saw Dallas Frierson, his wife's stepfather, sitting on the front porch of the home. Appellant alighted from his automobile and picked up a paint gun which was lying in the car, and walked up on the porch where Dallas Frierson was sitting, telling him that he had come for the baby and for Dallas to get the child for him. Dallas stated he would not interfere in their affairs. A struggle then ensued in which Dallas was struck over the head with the paint gun and knocked to the floor. When he tried to arise he was struck again and was kicked several times by appellant until he was unconscious. Appellant then departed leaving Dallas in a pool of blood. The victim was examined by a doctor and placed in a hospital; his face was bruised, his eye closed, a bone was fractured, and it required some six stitches to sew up the wounds in his head. He remained in the hospital for three days.

Appellant contends that Dallas Frierson instigated the struggle by picking up a glass jug and drawing back as though to strike him with it, and that he struck with the paint gun to avoid the glass jug. Dallas Frierson contends that he was on the front porch of his home reading the newspaper when the appellant arrived; that as he approached the porch, he requested appellant not to upset his mother-in-law as she was quite old, and that he, Dallas, had nothing to do with the appellant and his wife and baby; that appellant then knocked him down with some kind of metal object, and further struck and kicked him when he attempted to get up, with the above injuries enumerated resulting therefrom. It is significant that no other witness saw a glass jug on the premises.

We are of the opinion that the errors here urged by appellant are not well taken, and that the case should be affirmed.

Appellant's counsel moved the court, under Section 2575.5, Miss.Code 1942, Rec., to have appellant examined as to his mental ability to stand trial. The State replied to this motion, putting in issue the defendant's then ability to stand trial. A hearing was had upon this motion which disclosed the defendant had theretofore been to Whitfield for mental examination but had been released as competent. Dr. Jaquith, the head of such institution, testified in response to questions by the defendant's attorney that he had no knowledge as to the defendant's mental capacity at the time of the hearing. Defendant offered no witnesses in support of his motion other than the defendant himself who testified as to the details of the incident and not as to any mental impairment or impediment that he might have. At the conclusion of this hearing, the defendant, through his attorney, requested a mental examination at the time, which was refused by the Court. We are of the opinion that the Court was correct in refusing this motion. The purpose of the statute is to avoid placing an accused on trial unless he is at the time capable of conducting a rational defense by intelligently conferring with his counsel. McGinnis v. State, 241 Miss. 883, 133 So.2d 399. The defendant produced no evidence to the effect that there was a reasonable probability that he was incapable of making a rational defense. Jaquith v. Beckwith, Miss., 157 So.2d 403. He was afforded opportunity to do so and failed to respond. After the trial was concluded, on a motion for a new trial, the point was raised that the lower court erred in overruling the motion for a mental examination of defendant. Testimony was introduced on this motion for a new trial for the record...