Goldsby v. State

• Decision Date: 28 March 1955
• Docket Number: No. 39739,39739
• Citation: 226 Miss. 1,78 So.2d 762
• Parties: Robert Lee GOLDSBY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 762

78 So.2d 762

226 Miss. 1

Robert Lee GOLDSBY v. STATE of Mississippi.

No. 39739.

Supreme Court of Mississippi.

March 28, 1955.

John W. Prewitt, Vicksburg, Rupert Ringold, Winona, for appellant.

J. P. Coleman, Atty. Gen., by Joe T. Patterson, Asst. Atty. Gen., Barnett, Jones & Montgomery, Jackson, for appellee.

LEE, Justice.

Robert Lee Goldsby was indicted in the Circuit Court of the Second Judicial District of Carroll County for the murder of Mrs. Moselle McCorkle Nelms. The jury found him guilty as charged, and the court sentenced him to death by electrocution. From the judgment entered, he appealed.

The killing occurred on September 4, 1954. At a subsequent habeas corpus trial Goldsby was represented by counsel of his own choosing. The indictment was returned on November 8, 1954, at which time he was represented by other counsel of his own choice, George N. Leighton o fChicago, Illinois, who was present at the arraignment that day. By agreement, the cause was set for call for November 10th. However, on that date, Leighton informed the court that he had withdrawn from the case. Since the defendant was then without counsel, it became necessary for the court to appoint counsel for him. There were only two lawyers in Carroll County, Maurice Black, county attorney, and Crawford Neill. Neill was physically unable to assume the defense. The court then appointed Rupert Ringold of Winona, Mississippi, and the case was passed until the next day. At that time Ringold asked permission of the court for John W. Prewitt, an attorney of Vicksburg, appearing at the instance of relatives of the accused, to be associated in the case. This request was granted and both Ringold and Prewitt assumed the defense.

A motion for a change of venue, in compliance with Section 2508, Code of 1942, was filed; but no evidence was adduced in support thereof.

The State, in opposition to the motion, offered thirteen witnesses, consisting of the circuit clerk, the chancery clerk, a justice of the peace, two deputy sheriffs, the sheriffs in the two districts of the County, the county agricultural agent, the superintendent of education, the town marshal of Vaiden, a member of the board of supervisors, an automobile dealer and service station operator, and a farmer. One or two statements of two of the witnesses, if isolated from everything else, might be construed as supporting the motion. But the over-all effect of the evidence was that the public interest, at the time of the killing, was no greater than usual in that kind of case; that there was no widespread discussion of it at the time or since; that there was no hatred, ill will, malice or prejudgment against the defendant; that there was the desire on the part of those who expressed themselves, except in several instances, that the defendant should have a fair and impartial trial; that the defendant was transferred first to a jail in Jackson and then to one at Louisville not because of any ill will or feeling against him, but because the county jail was inadequate for the confinement of a person, charged with a serious offense; that only twenty-five or thirty persons were present in the courtroom at the time of the arraignment; that the courtroom was only one-third full when the motion was being heard; and that the defendant could secure a fair and impartial trial in the Second Judicial District of Carroll County in accordance with the law and the evidence.

At the conclusion of the hearing, the trial judge observed that the testimony showed overwhelmingly, and he did not have the shadow of a doubt but that the defendant could get a fair and impartial trial there. Hence he overruled the motion. His action was fully sustained by the evidence. Walden v. State, 129 Miss. 686, 92 So. 820; Long v. State, 133 Miss. 33, 96 So. 740; Mackie v. State, 138 Miss. 740, 103 So. 379; Dalton v. State, 141 Miss. 841, 105 So. 784; Wexler v. State, 167 Miss. 464, 142 So. 501; Shimniok v. State, 197 Miss. 179, 19 So.2d 760; Bone v. State, 207 Miss. 20, 41 So.2d 347; Gaddis v. State, 207 Miss. 508, 42 So.2d 724; Durr v. State, 214 Miss. 658, 59 So.2d 304; Wheeler v. State, Miss., 63 So.2d 517, certiorari denied 346 U.S. 852, 74 S.Ct. 67, 98 L.Ed. 367.

Moreover, the special venire of one hundred men, from which to secure the trial jury, was drawn from the whole county. If the answers of the potential jurors on their voir dire examination had been desired, counsel could have had the same taken and made a part of the record merely by asking. But no request therefor was made. In addition, it was not shown in the record that it was necessary for the defendant, in the selection of the jury, to exhaust his twelve peremptory challenges.

It is obvious therefore that there is no substantial basis on which to maintain that the trial court committed error in overruling the motion for a change of venue.

Mrs. Moselle McCorkle Nelms and husband, B. S. Nelms, operated a dairy bar on the west side of U. S. Highway 51 about one and a half miles north of Vaiden, Mississippi. The building was brick veneer, twenty-six by thirty-four feet, and was situated about seventy-five feet from the pavement. About twenty-five feet east of the building, and between it and the pavement, were located two gasoline pumps. Driveways, both north and south, afforded access to the place. The ground was substantially level and was covered with washed gravel about two or three inches deep.

About 8 o'clock on the morning of September 4, 1954, a blue Dodge automobile, with a Missouri tag, traveling south on the highway at a rapid rate of speed, turned somewhat abruptly off the highway and into the grounds of the dairy bar. It scarcely missed the gasoline pumps and Dan Willis' car, parked about twelve feet from the corner of the building, and stopped about fifty feet from the southeast corner of the building. Five Negroes were in the car--three men, Robert Lee Goldsby, Robert Gillion, and Willie Turner, and two women, Rosa Moore and Laura May Goldsby, wife of the defendant. They had left St. Louis, Missouri, about 12 o'clock the night before. Robert Gillion was driving at the time. Goldsby and Gillion and the two women all got out of the car. There were two versions as to the subsequent developments.

As Dan Willis of New Orleans, Louisiana, a rodman in steel construction work, was approaching the cafe a few minutes before, his horn started blowing and he turned into the station to disconnect it. When this was done, he checked his oil, found that it was low, and was adding a quart, when the Missouri car came into the grounds at high speed, almost hit the pumps and his car, and knocked gravel against both the car and the building. He estimated the speed at fifty miles an hour. Two men and two women got out of the car. B. S. Nelms was at the back of the building at the time and he went to the car and asked the Negroes what they meant by driving in that manner, and told them to get in their car and leave, as they were not wanted or allowed there. The parties all got back in the car and were talking. Nelms then went into the front of the dairy bar, and, after a short time, came out with a rubber hammer in his left hand. The handle was about ten inches long and the rubber portion was about two by three inches. Nelms was in his shirt sleeves and his right hand was swinging. The witness could tell that there was something in Nelms' right pocket. Nelms got within about two steps of the car, on the left side, lowered his head and said, 'I said for you all to leave, and I mean now'. Immediately a pistol shot was made by the man under the steering wheel, Goldsby. The bullet struck Nelms in the mouth. He flinched and struck the side of the car with the rubber hammer and fell flat on his face on the ground. Two other shots were fired in rapid succession at Nelms on the ground, one of which hit him in the hip. About that time, Mrs. Nelms in a white uniform with short sleeves, came running from the building with her hands in the air and nothing in them, and screamed to Goldsby either to 'quit shooting my husband' or 'you have shot my husband'. Goldsby then fired the fourth shot and Mrs. Nelms half way turned and fell on her face. The witness was positive that the defendant saw her, unless he closed his eyes. He estimated the time at between three and five seconds between the third and fourth shots. Goldsby had turned his direction after the first shot; and after the third shot, he turned more to the left. Mrs. Nelms said nothing after the shot that struck her under her right armpit. She died within thirty or forty seconds. The witness was positive that the motor was running when the parties got back into the car with Goldsby under the steering wheel. He had also noticed that the exhaust pipe was 'sizzling' just as Nelms walked up to the car the second time. Immediately after the fourth shot, the car drove away.

The testimony of B. S. Nelms coincided with and corroborated that of Dan Willis in all substantial particulars. He explained that the manner in which the car had been driven into his place by people, apparently from another state and whom he did not know, caused him apprehension as to their purpose; and he wanted them to get off of his premises. He asked them to do so but they paid no heed. Hence, because they acted suspiciously and he was afraid of them, he took the mallet in his hand and put his pistol in his pocket. In his shirt sleeves, he walked up to the side of the car, with nothing in his hand but the mallet, drew no weapon of any kind on Goldsby, but merely bent down slightly in order to tell the driver 'I guess you Negroes didn't hear me tell you to leave here'. Immediately Goldsby shot him in the mouth. He had no recollection of striking the maliet against the side of the car. He fell to the ground on his face, and Goldsby continued to shoot at him on the ground, one of the bullets taking effect in his hip. He said...