Garrett v. State
| Decision Date | 05 February 1940 |
| Docket Number | 33972 |
| Court | Mississippi Supreme Court |
| Parties | GARRETT v. STATE |
Suggestion Of Error Overruled February 19, 1940.
APPEAL from the circuit court of Lee county HON. CLAUDER F. CLAYTON Chancellor.
Sam Garrett was convicted of an offense, and he appeals. Affirmed.
Affirmed.
Adams & Long, of Tupelo, for appellants.
In the case of Cavanah v. State, 56 Miss. 300, the court stated the point of inquiry, which the circuit judge will consider as to whether or not a change of venue will be granted. The lower court in this case had denied a change of venue, and in affirming the decision of the lower court, the court said as follows: "Looking to the evidence on this subject, we fail to discover any ground to believe that there existed in the public mind that 'undue prejudice' meant by the statutes, i. e., such as would be likely to be so felt in the jury box as to prevent the accused from having a fair and impartial trial by the evidence and the law." So it follows that the inquiry should always be whether or not "there is any prejudgment or prejudice such as would likely to be so felt in the jury box as to prevent a fair trial, " although there have been dozens of other cases in Mississippi before the Supreme Court, these pertinent remarks of the Supreme Court in Cavanah v. State have never been overruled.
The defendant on this appeal relies on the following cases for the law to reverse the opinion of the lower court on the motion for a change of venue.
Saffold v. State, 76 Miss. 258, 24 So. 314; Tennison v. State, 79 Miss. 708, 31 So. 421; Anderson v. State, 46 So. 65, 92 Miss. 656; Magness v. State, 103 Miss. 30, 60 So. 8; Keeton v. State, 132 Miss. 733, 96 So. 179.
The right to trial by an impartial jury is guaranteed by the organic law of the state, and when it is doubtful that such a jury can be obtained in the county of the venue of the homicide, the person on trial for his life is but asking for his rights when he requests a change of venue, and there is no imaginable reason to refuse, except possibly a slight additional cost to the county.
Fisher v. State, 145 Miss. 116, 110 So. 361; Eddins v. State, 110 Miss. 780, 70 So. 898.
We do not believe that any person should be tried in a county where the biggest newspaper in the county has carried on a relentless and persistent campaign of propaganda for the conviction of the person to be tried, both by doctored news items and designed items, and by editorials as well, in which the crime for which the person is being tried is held up as the starting point for a campaign of arrests and convictions of the party being tried and other people.
When it is considered that the jurors to try this man had been called the "Blue Ribbon" jury in editorials and had been told in the issue of the paper on the first day of the term of court that the mere conviction of Sam Garrett would not satisfy the demands of the general public, but that others must also be convicted with him, and that many other strong editorials with just as positive statements in them in the jury's mind, when they went into the jury box, they could not be free from prejudice, even though a juror had never seen the Journal, for when the entire county had been fed and refed inflammatory and persistent demands for the conviction of this man, no juror could go into the box without feeling the influence of these editorials.
It may be urged that the Jones case, 133 Miss. 703, has decided the issue of newspaper publicity, given in this case, against us, but we don't think so. The Jones case had to do only with the publication of the purported confession of the defendant, but in the case at bar, it has been shown that not only are news items carried but that these news items were of a highly propaganda nature and that the editorials linked in with them were inflammatory and persuasive and carried for the purpose of the forming of a public opinion to convict Garrett. There was no such organized campaign in the Jones case.
It is not a question as to whether or not there are any good people in the county nor how good they are, but the question is have they been influenced by a newspaper campaign, the character of the crime, the prominence of the person assaulted or anything else so as to make up their minds on the subject, or be influenced by any public opinion when they get into the jury box whether their minds were made up or not.
Tennison v. State, 31 So. 421, 79 Miss. 708; Anderson v. State, 46 So. 65; Magness v. State, 103 Miss. 30.
We are familiar with the doctrine that continuances should not be given where the evidence which would be given by the absent witnesses is cumulative, but we urge on this court that the fact that this testimony of Mrs. Garrett and the daughter in this case is slightly cumulative; that at the same time the denial to this defendant of the right to bring them to court, denied him the only chance he had, if he could so prove it that his mental condition, for several days prior to the shooting was bad, and that he was gradually becoming a nervous wreck, and that he was taking dope so that at the time of the shooting he was out of his mind to such an extent that he did not realize what he was doing.
There was absolutely no chance for Garrett to flee the jurisdiction of the court. Some official had already required him to make an excessive bond of $ 5, 000, and the state would have lost none of its power and ability to convict this man by waiting one term of court, which would ordinarily have been done in another case when two important witnesses were absent.
Brooks v. State, 67 So. 53, 108 Miss. 571; Stokes v. State, 159 So. 294, 172 Miss. 199; Scott v. State, 31 So. 710, 80 Miss. 197; Corbin v. State, 55 So. 43, 99 Miss. 486; Fooshee v. State, 34 So. 148, 82 Miss. 509; Caldwell v. State, 37 So. 816, 85 Miss. 383; Watts v. State, 44 So. 36, 90 Miss. 757; White v. State, 45 So. 611; Cade v. State, 50 So. 554, 96 Miss. 434; Childs v. State, 112 So. 23, 146 Miss. 794; State v. Vollum, 51 So. 275, 96 Miss. 651; McGee v. State, 45 So. 360; Havens v. State, 23 So. 181, 75 Miss. 488.
The only case before the court at this term about which there had been any undue publicity, or about which there had been centered a general demand that this specific defendant be convicted was the case of Sam Garrett, and when the district attorney, in the trial of a similar case, in which the assaulted party had been stabbed in the guts with a knife, positively and unequivocally demanded that the defendant's conviction on the grounds that it would not do to turn him loose because they were going to have to try Sam Garrett later and that he should not then be asked to convict Sam unless they convicted this man, and in which he said there were other matters coming up which were inferentially more important and which he and the jury had met to accomplish and for them not to forget that they had to try Sam later, and that they must of necessity convict him and that they therefore should not play any favorites.
It is too significant that continuous endeavor to influence the public mind generally had been carried on by the Tupelo Daily Journal, and the shooting of a prominent man in the stomach, which the public generalily, in the County of Lee, was thoroughly familiar with, that in trying another man for stabbing a man in the stomach, that the district attorney should tell the jury: "Don't forget other matters are coming up for your consideration this week and if you don't convict this man, I don't think I should be called on to convict anyone for shooting or stabbing a man in the guts in Lee County;" for what is the reason for mentioning the later case that is coming up, and why bring in the shooting of a man in the guts at all in a case where the defendant has stabbed a man in the guts.
I don't think there is any question but what the district attorney knew in his mind of the ill will against Garrett and the general determination of the public to see that he was convicted, and that he thought that he would just use that to get one more man in the penitentiary as well as Garrett, and that being the case, linking our defendant generally with the demands that all be found guilty, the jury should have been dismissed and we should have selected the entire jury, if at all, at that time, out of jurors, from the special venire drawn, for certainly if any man had come to court for the avowed purpose of getting Garrett, they would not have revealed this fact on a voir dire examination.
The district attorney, in substance, told the jury that he would know and they each would know who the bribe takers were if any one spoke in favor of Sam Garrett when they went into the jury room.
This was clearly coercive, was not borne out by the testimony and was highly prejudicial to a fair consideration of the defendant's case by the jury. The district attorney, in his closing argument, should not discuss or comment to the prejudice of the defendant on anything not shown by the record.
Hartfield v. State, 189 So. 530; Berry v. State, 22 So. 826; Minor v. State, 57 So. 548; Evans v. State, 54 So. 154; Long v. State, 33 So. 224; Roney v. State, 120 So. 445; Shillings v. State, 118 So. 137; Smith v. State, 105 So. 758; 22 R. C. L. 104, par. 12; 16 R. C. L. 297, par. 109.
There was an attempt made in the lower court to justify these remarks of the district attorney as being responsive to the remarks of attorney Adams for the defense. We do not think that this is true. Attorney Adams' remarks were justified by the large crowd present in the court room.
W. D. Conn, Jr., Assistant Attorney-General, for the State.
This court has said, in so many words, that every proceeding to change...
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