Funches v. State

• Decision Date: 28 March 1921
• Docket Number: 21493
• Citation: 87 So. 487,125 Miss. 140
• Court: Mississippi Supreme Court
• Parties: FUNCHES v. STATE

87 So. 487

125 Miss. 140

FUNCHES v. STATE

No. 21493

Supreme Court of Mississippi

March 28, 1921

APPEAL from circuit court of Simpson county, HON. W. H. HUGHES Judge.

Neal Funches was convicted of murder, and he appeals. Reversed and remanded.

Reversed and remanded.

Hilton & Hilton, for appellant.

In view of the right of a defendant, to interrogate jurors, after a full panel has been tendered him by the state, for the purpose of exercising his right of peremptory challenge, has been questioned by the attorney-general and refused in this case by the lower court, we desire again to call the court's attention to the law as heretofore announced by this court.

In the case of Story v. State, 10 So. 47, the court announced this rule: "There is nothing prejudicial to a defendant in the court's examining jurors on their voir dire as to their competency allowing counsel to suggest questions, but not permitting them directly to interrogate on the subject, turning them over, however, to counsel, after being satisfied as to their competency, to question with the view to peremptory challenge.

"In the case of Hale v. State, 16 So. 387, the court announced this rule. The action of the court below refusing to permit the examination of the jurors when a full panel was presented to the defendant for his acceptance or peremptory challenge with the view to intelligently exercising his right to challenge was error, and must reverse the judgment."

The attorney-general answers this argument by citing chapter 115 of the Laws of 1920, which gives to chancellors and circuit judges the right to formulate and promulgate the rules on practice and procedure in their courts. We do not understand that this act gives them the right to take from a defendant his constitutional and legal right in exercising his right of peremptory challenge and this can only be done intelligently by interrogating jurors as so clearly set forth in the Hale case.

They cite rule 10 which provides that the court alone shall examine jurors touching their qualification and should the juror appear to be qualified, the court will ask any additional proper question suggested by counsel. We say that the appellant in this case did not even have this right. See pages 38 and 39 of the record. After a full panel was tendered appellant he made a motion for permission to examine the jury for the purpose of exercising his peremptory challenge. This was refused and the court puts a statement in the record that a full examination could be made, through the court, by the state and defendants, before either side passed upon the jury, but no other examination would be permitted. Now the point is, even granting the position of the attorney-general that the courts had the right to promulgate rule 10, yet as a defendant is never called on to challenge a juror for cause or peremptorily until a full panel is tendered him, surely then defendant has a right to have questions propounded to the jury, after a full panel is tendered at least through the court, even though defendant's are now deprived of interrogating them directly. So under any view of the law on this point, the lower court erred.

Able counsel for the state, not having presented any authority controverting those we have presented showing that it was reversible error for the district attorney to make the argument he did with reference to the defendant being of a mixed race, etc., and as we have fully presented the authorities on this point in our former brief, we shall not put any further time on that point, but say in passing that if a district attorney by argument, can so prejudice a defendant's rights as to justify this court in a reversal, this is one. We do not remember a harsher more inflammatory and prejudicial argument used in the cases cited in our former brief, wherein this court reversed the case. It appears to us that this argument is the limit. We do call the court's attention to the case of Kelly v. State, 74 So. 679, as we did not embrace this authority in our former brief.

It is our contention that section 26 of the constitution gives defendant this right by virtue of the provision therein that, "In all criminal prosecutions the accused shall have the right to be heard by himself or counsel, or both and to have a trial by an impartial jury." If the laws by which a man is to be tried for his life refuse or deny him the right to interrogate in person or by his selected counsel each juror tendered him by the state, why would not that same law deny him the right to interrogate the witness for and against him, and compell him to have the court, on his suggestion, to ask all questions of the witnesses? We cannot believe that it is the policy of the law, especially in criminal cases and still more especially when a man is on trial for his life, to deny him the right to examine each juror when a full panel has been tendered him by the state.

The fifth assignment of error is based upon the action of the court in refusing instructions Nos. 2, 4, 5, 11, 14 and 15 asked by the defendant. We submit that each of those instructions properly announced the law of the case, and should have been given, and especially is this true with reference to instruction No. 15 which reads as follows: "The court instructs the jury for the defendant that they as jurors have no right under the law to draw any unfavorable inference against the defendant because he did not testify in this case." The right of the defendant to testify in his own behalf is given him by law, and it is the law that no prejudicial inference is to be indulged against him if he fails to testify, and we think this instruction was applicable in this case, in view of the comment of the private counsel as shown by the record in his closing argument to the jury, over the protest of the defendant, and sanctioned by the trial court and which is assigned as error No. 10.

The twelfth assignment of error is that the court erred in permitting the district attorney in his opening argument to the jury to make the following argument over the protest and objections of defendant: "Gentlemen of the jury, the defendant in this case has got enough white man's blood in him to make him a man of judgment and sense, and he is a smart fellow indeed, and on the other hand, he has enough African blood in him to make him as mean as Hades itself."

We submit that under all the authorities which are too numerous for citation, this class abuse on the part of the prosecuting attorney is reversible error. There is no evidence in the record to show that the defendant is a mulatto, or has one drop of white man's blood in his veins, neither is there any evidence in the record showing that he is a mean negro. His character was not put in issue by the defense and it for this reason could not be assailed by the prosecution. This argument was not only unwarranted by the evidence as shown by the record, but was an appeal to race prejudice, and highly prejudicial to the rights of the defendant. Kelly v. State, 74 So. 679, and authorities there cited.

In conclusion we most seriously insist that this case certainly will be reversed and it is our honest belief the defendant should be discharged by this court. We cannot understand that a man should be deprived of his life or liberty under such proceedings as are revealed by the record of this case.

Fred W. Lotterhos, for appellee.

There is no rule of law which gives one on trial the positive right to propound questions to the veniremen directly and not through the medium of the presiding judge. The appellant is promised that he shall have a fair and impartial jury to try his case. The learned trial judge herein was very careful to tender the appellant full privilege to ask questions through the court.

For many years it has been the custom in some circuit courts in Mississippi to require the voire dire examination to be made in this way in capital cases, and under the rules made by the judges and chancellors, under the recent act of the legislature of 1920 is to be found the following: "Rule 10. In all cases the court alone shall examine jurors touching their qualification, and should the juror then appear to be qualified, the court will ask any additional proper questions suggested by counsel." Which is but another recognition of the propriety of such a rule of court, so that now instead of this being a rule in some of the circuit courts it has become the universal rule in Mississippi.

This question was presented In re Farmer v. State, recently affirmed, and not yet reported, by this court. Hence it is submitted that it has been decided by this court that such a rule shall not constitute reversible error. The provisions of law in relation to juries are directory and a jury, although impaneled in an informal or irregular manner, shall be deemed a legal jury after it shall have been impaneled and sworn. Hemingway's Code, section 2211; McVey v. State, 78 So. 150.

In this case appellant did not exhaust all of his peremptory challenges, and there is nothing to indicate that he did not have a fair and impartial jury or that the rule of the court governing the examination of veniremen was prejudicially erroneous, illuminating in this matter. See Powers v. Presgrove, 38 Miss. 327; Guice v. State, 60 Miss. 714; Hale v. State, 16 So. 387; Story v. State, 68 Miss. 609; 16 R. C. L., pp. 246 and 247.

The argument of the district attorney in the following language "Gentlemen of the jury, the defendant in this case has got enough white man's blood in him to make him a man of judgment and sense and he is a smart fellow indeed. And, on the other had, he has enough African blood in him to make him as mean as Hades itself," didn't necessarily inject the race issue...