Gilmore v. State
| Decision Date | 24 October 1955 |
| Docket Number | No. 39872,39872 |
| Citation | 225 Miss. 173,82 So.2d 838 |
| Parties | Murry Garfield GILMORE v. STATE. |
| Court | Mississippi Supreme Court |
Sims, Sims & Sims, Columbus, for appellant.
J. P. Coleman, Atty. Gen., by Wm. E. Cresswell, Asst. Atty. Gen., for appellee.
At the March 1955 Term of the Circuit Court of Monroe County, Murry Garfield Gilmore was found guilty of the murder of Sam C. Addington, and was sentenced to death in the State's lethal chamber. From the judgment entered he appealed.
Addington's store burned down on November 16, 1954, and the murder investigation began immediately. Gilmore was arrested several days later, and was thereafter confined in the county jail from November 23 until the date of the trial. An indictment was returned on March 14, 1955, at which time the defendant was arraigned, with counsel of his own choice present. A plea of not guilty was entered. When the case was called for setting on March 21, the defendant filed an application for continuance, to which was attached the affidavit of W. L. Sims, a member of the firm of Sims and Sims of Columbus, Mississippi. On the same date he also filed an application for a change of venue, which was accompanied by the affidavits of two affiants, as provided by statute.
The substance of the application for continuance was that the defendant and his people were poor, and his attorneys were not employed until the date of arraignment; that he had not had an opportunity to advise with his attorneys or conduct an investigation; that under prevailing conditions of hostility, he could not obtain a fair trial; and that the cause should be continued until the next regular term of court in order that justice might be done. The affidavit of W. L. Sims averred that he was a member, and had been attending sessions, of the legislature for the past ten weeks. There was no showing that the attorneys, either prior or subsequent to arraignment, were deprived of the right to confer and advise with their client. The defendant was then in the county jail, and his people had been visiting him at any and all times. The application was overruled.
The application for a change of venue was then heard. The State called Earl Chism, a nephew of the defendant by marriage, one of the affiants, for cross examination. While stating that 'everybody talks agin the boy', he was able to give the name of only one person who had expressed the opinion that the defendant could not obtain a fair trial. In opposition to the motion, the State put on the stand Joe T. Morgan, ex-chancery clerk and sheriff, Frank Whitaker, a farmer, W. W. Wamble, retired, T. A. Richardson, an automobile salesman, R. A. Pullen, supervisor and exchancery clerk, T. L. Word, a farmer, Frank Wiygul, a highway patrolman, Russell Smith, another highway patrolman, Leroy Bourland, sheriff and ex-chancery clerk, Nathan Logan, marshal of Smithville, Pearl Jackson, in the telephone business, E. C. Bourland, a banker, John Miller, who operated a bulldozer over the county, Frank Durrett, a postmaster and sawmill and store operator, Houston Blair, a farmer, Jimmie Camp, a grocer, A. C. Moore, retired, and James Cockerham, a supervisor,--eighteen witnesses of varied occupations, and wide acquaintance over the county--each of whom expressed the opinion that the defendant would get a fair trial in the county. It was shown that there was no prejudice or bias or ill-will against the defendant; that, while articles about the killing appeared in the two newspapers, the people were content to await the development of the facts; that the talk was no different than that which occurred in the average murder case; and that for the past thirty or sixty days, there had been practically no comment about the case.
In rebuttal, the defendant called Roy Steinfort, editor of the Aberdeen Examiner, and Theron Harden, editor of the Amory News Advertiser, by whom he introduced in evidence several issues of those papers which contained news items about the deaths of Mr. and Mrs. Addington, and who testified that their respective circulations were about 3,000 and 2,500. Both of these witnesses, on cross examination, also expressed the opinion that the defendant would get a fair trial in the county. The application for the change of venue was denied.
On March 22, the defendant's motion for a special venire was sustained, and 125 names were drawn, returnable March 25, the date set for the trial on its merits. On that date, counsel for the defendant dictated into the record a supplemental motion for a continuance, in which it was stated that, because of the washout of a bridge, his counsel was unable to contact relatives of the defendant to get a list of witnesses, and that one member of the firm of attorneys, a Lieutenant Colonel in the National Guard, had been called into emergency service; and that for these reasons the case should be continued. No proof was offered on this motion, and it was overruled.
A jury to try the cause on its merits was then selected and impaneled on that date. But, before the taking of testimony began, the attorneys for the defendant filed a suggestion of present insanity of the defendant, and asked for the privilege of submitting proof that the defendant was not then capable of making a rational defense.
A separate jury was then impaneled to try the issue of present sanity. The defendant offered Dr. R. T. Dabbs, who had attended the defendant one night in the jail. However the doctor found, from his examination, that the prisoner's blood pressure, pulse, temperature and hearing were good; that he was 'just disgusted with everything', but that he was mentally normal. It was his opinion that the defendant was then, and still is, sane. Albert Smith, who had been a prisoner in the jail for a month, testified that the defendant walked the floor and beat a pan one night; that he laughed, sang, cried and talked about his mother; and that there was something wrong with him. But, on cross examination, he admitted that he would not say that the defendant was crazy. Robert Lee Petty, another prisoner and ex-convict, testified too about the same facts as Albert Smith; and that he complained of his head hurting, but he refused to express an opinion about the defendant's sanity or insanity. J. A. Parrish, another prisoner, testified that the defendant acted all right until he fell out one night, and mentioned about the beating of the bucket and his complaint about his head. But finally, on cross examination, the witness, in answer to a question as to whether or not the man was crazy, said 'I think he is all right myself.' Opal Gilmore, a brother of the defendant, testified that the accused suffered with his head and has not seemed right for about five months. Luther Sims, one of his attorneys, testified that the defendant at times talked to him, but at others would talk about something else; and that he was unable to get a sensible conversation that would aid in the defense. He stated however that 'I don't say crazy, he is not normal.'
The State called Shelby Monaghan, a deputy sheriff, who had known the defendant for three or four years and who talked to him frequently since his incarceration in jail. This witness testified that Gilmore talked sensibly and was absolutely sane. Leroy Bourland, in the jail two or three times a week, had observed and talked to the defendant and was of the opinion that he was sane. Dr. W. F. Cresswell, who had, in addition to his general training and experience, also experience with mental patients at Walter Reed and another hospital, saw the defendant twice. He found him emotionally upset and nervous, but he talked rationally, had no hallucinations or any type of mental depressive psychosis or schizophrenia; and it was the opinion of the doctor that Gilmore was sane. Armon Howell, the jailer, observed him from two to four times daily, stayed around him about an hour the night before, and was of the opinion that he was sane.
The jury found the defendant sufficiently sane at that time to conduct a rational defense to the charge of murder. The suggestion of present insanity was thereupon overruled by the court on November 26; and the jury, which had been impaneled to try the cause on the merits, and which had been withdrawn from the courtroom in charge of bailiffs, was continued in charge of such bailiffs until the following Monday, March 28, when the trial on that issue proceeded.
Sam Addington operated a rural mercantile business in Monroe County several miles from the line between Mississippi and Alabama. He and his wife, 75 and 77 years of age respectively, also had living quarters in the same building. Buell Noe, a neighbor, visited with them on the evening of November 16, 1954, leaving the store about 7:20 o'clock. James B. Aldridge drove by the store about 6 o'clock, going to a religious meeting. On his return, about 8:30 or 9:00 o'clock, he observed that the store was on fire. He rushed to the front door and opened it, at the time, seeing a bulk like a person, lying on the floor near the refrigerator; but the flames were so intense that he could not go inside. He spread the alarm and many people came, but they were helpless to enter the building.
Mr. Addington wore eye-glasses and suspenders. Because of a hernia, he also wore a truss. He habitually carried a pocketknife, keys, and a billfold, which was laced with a chain. When the fire had cooled sufficiently to permit an examination, Frank Wiygul, a patrolman, found the remains of a body near the refrigerator, in the exact spot where James B. Aldridge had seen the bulk which he took to be a person. On and under the body, he found a pair of eye-glasses and case, a pocketknife, snaps from suspenders, a chain from a billfold, a ring of keys, and a steel rod, such as is found in trusses, around the body; and about 18 inches away, the head of a hammer and a can which had contained cigarette lighter fuel. These...
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