Goldsby v. State

• Citation: 123 So.2d 429,240 Miss. 647
• Decision Date: 03 October 1960
• Docket Number: No. 41547,41547
• Parties: Robert Lee GOLDSBY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 429

123 So.2d 429

240 Miss. 647

Robert Lee GOLDSBY v. STATE of Mississippi.

No. 41547.

Supreme Court of Mississippi.

Oct. 3, 1960.

George N. Leighton, Chicago, Ill., for appellant.

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

ETHRIDGE, Justice.

Appellant, Robert Lee Goldsby, was indicted for murder in the Circuit Court of the Second Judicial District of Carroll County, Mississippi. His motion for a change of venue was sustained, and he was tried in the Circuit Court, First Judicial District of Hinds County, in December 1959, was convicted and sentenced to death. This case has a long and litigious history, and a summary of that background is necessary for an adequate understanding and analysis of the issues presented on this appeal.

On September 4, 1954, Mrs. Moselle McCorkle Nelms was killed by a gunshot wound received in the Second Judicial District of Carroll County, and on the same day appellant Goldsby was arrested. On November 8 a grand jury in the Circuit Court of Carroll County returned an indictment charging him with the murder of Mrs. Nelms. In November 1954 he was tried and convicted in that County on that indictment, and was sentenced to death. That judgment was affirmed by this Court on March 28, 1955. Goldsby v. State, 226 Miss. 1, 78 So.2d 762, certiorari denied 350 U.S. 925, 76 S.Ct. 216, 100 L.Ed. 809. Thereafter, on motion of the State a new date, February 24, 1956, was set for execution of the sentence. 226 Miss. 19, 84 So.2d 528.

On February 21, 1956, appellant filed in this Court under Miss.Code 1942, Rec., Sec. 1992.5, a petition for a writ of error coram nobis, or, in the alternative, habeas corpus, asserting newly discovered evidence and systematic exclusion of Negroes from jury service. The petition was denied. As to the second point, this Court held that appellant had failed to raise it in the trial court or in this Court in the appeal on the merits; that there was no evidence in the record to support that averment, or in the petition for the writ; and appellant had effectively waived raising at that late date this issue. 226 Miss. 20, 86 So.2d 27, certiorari denied 352 U.S. 944, 77 S.Ct. 266, 1 L.Ed.2d 239. Hence the Court set March 23, 1956, for date of execution of the sentence. Later the State filed a motion to set another date for execution of the death sentence, which was fixed for February 12, 1957. 226 Miss. 30, 91 So.2d 750.

On January 29, 1957, appellant filed a petition for writ of habeas corpus in the United States District Court for the Northern District of Mississippi, Greenville Division. The petition was denied by the District Judge as being insufficient on its face. Thereafter on February 11, 1957, the Chief Justice of the U. S. granted a stay of execution until petitioner 'has had an opportunity to exhaust his federal rights in this proceeding.' On appeal from denial of habeas corpus, the U. S. Court of Appeals, 5th Circuit, held the averments in the application were sufficient to entitle applicant to a hearing, on the question of whether he adequately preserved during his murder trial the constitutional question that he was deprived of due process of law by a systematic exclusion of members of his, the Negro race, from grand and petit juries in Carroll County. United States ex rel. Goldsby v. Harpole, 5 Cir., 1957, 249 F.2d 417, certiorari denied 361 U.S. 850, 80 S.Ct. 109, 4 L.Ed.2d 89. The judgment of the District Court was reversed. The Court of Appeals stated the application should be determined after a full hearing, and the burden of proof was upon applicant in this collateral attack upon a judgment of the Mississippi courts.

Upon remand of Goldsby's petition, the District Judge, after a hearing, ruled that the evidence failed to show a systematic and willful exclusion of any member of the Negro race from jury service in Carroll County; that before and during the trial Goldsby was represented by able and competent counsel, but the issue was not raised in the State courts, and petitioner waived that question. See United States ex rel. Goldsby v. Harpole, 5 Cir., 263 F.2d 71 75-76. After the District Judge refused to issue a certificate of probable cause, this Court, on motion of the State, again set a date for execution, May 29, 1958. Goldsby v. State, 1958, 233 Miss. 338, 102 So.2d 215. However, on May 27, 1958, the Chief Justice of the U. S. again granted a stay of execution.

The U. S. Court of Appeals thereafter granted a certificate of probable cause and, in the appeal from denial of the writ by the District Court, on January 16, 1959, the Court of Appeals held that Negroes had been systematically excluded from the grand jury and the petit jury in Carroll County, and the judgment of conviction was void. Applicant made out a prima facie case to that effect, and the State did not adequately refute it. The Court of Appeals, 5th Circuit, in United States ex rel. Goldsby v. Harpole, 263 F.2d 71, 84, certiorari denied 361 U.S. 838, 80 S.Ct. 58, 4 L.Ed.2d 78, defined its decision as follows:

'Upon the present record, therefore, we make definitive holdings as follows: that Negroes were systematically excluded both from the grand jury which indicted the appellant and from the petit jury which convicted him; that the objection as to the petit jury was not effectively waived and, hence, that the judgment of conviction is unconstitutional, subject to collateral attack, and is declared to be void and of no effect; that the objection as to the grand jury was waived, and the appellant is now legally detained upon his indictment for murder, but that he is entitled to be tried within a reasonable time; that this Court retains jurisdiction for the entry of such further orders and judgments as may be necessary or proper.

'The Court expresses its present opinion that a period of eight months from and after the entry of this judgment or its final test by certiorari or otherwise will be sufficient to afford the State of Mississippi an opportunity to take the necessary steps to re-try the appellant, either upon the present indictment or upon a subsequent legal presentment for the same offense, as the State may elect. If the appellant has not been re-tried within such period, this Court will consider and decide whether or not he should be discharged upon this petition for habeas corpus.

'Any such re-trial must of course be before a jury from which Negroes have not been systematically excluded, or before some court or tribunal so constituted as not to violate his constitutional rights.

* * *

* * *

'The judgment of the District Court is reversed and judgment here rendered in accordance with the holdings of this opinion.

'Reversed and rendered.'

The December 1959 trial of Goldsby, from which resulting judgment this appeal was taken, took place after the above decision. Defendant Goldsby was retried under the 1954 indictment. His motion for change of venue was sustained, and the case transferred to the First Judicial District of Hinds County. A special venire was called. Appellant's counsel originally filed a motion to quash the special venire, on the ground of alleged systematic exclusion of Negroes from petit jury service, but appellant's counsel subsequently admitted he had no evidence of such exclusion, and withdrew this motion. He stated appellant had no objection to the method of obtaining the petit jury in the First District of Hinds County. In short, appellant does not raise any constitutional issue on this appeal of alleged systematic exclusion of Negroes from petit jury service in Hinds County, First District, where the second trial occurred.

I.

Appellant contends that the verdict is against the overwhelming weight of the evidence; at the most it would warrant a verdict only of manslaughter rather than murder; and the evidence shows that he was acting in self-defense.

The testimony for the State and that for defendant were conflicting, and the questions of whether defendant was guilty of murder or manslaughter or was not guilty were issues for the jury. The testimony is substantially the same, with some variations, as in the first trial of this case. Cf. Goldsby v. State, 1955, 226 Miss. 1, 9-15, 78 So.2d 762.

The two eyewitnesses who testified for the State, Dan Willis and B. S. Nelms, husband of the deceased, both testified that on the morning of September 4, 1954, appellant's car, driven by Robert Gilliam, turned abruptly and at a high rate of speed off the highway and onto the gravel apron of the Nelms' dairy bar and cafe, situated on the west side of U. S. Highway 51 about one and one-half miles north of Vaiden.

Nelms asked them to leave because of the reckless driving of the automobile, which almost hit a gasoline gauge and threw gravel on the building and Willis' car. Goldsby and Gilliam changed seats, with Goldsby under the steering wheel. The occupants of the car did not leave, and, because Nelms was afraid of them, he put his pistol in his pocket and took a rubber hammer along when he walked out to the Goldsby car to ask the occupants again to leave. Nelms did not threaten Goldsby, but, when he approached close to the car, Goldsby shot him in the mouth, and when Nelms fell on his face, defendant shot him in the back. Mrs. Nelms, hearing the shots, ran from the cafe toward the car, without any weapon, with her hands in the air, and screamed to Goldsby to quit shooting her husband. Goldsby then turned his gun to the left upon her and shot her to death. She was about ten feet west of her husband. Four shots in all were fired. Appellant then drove off at a fast speed and was apprehended about forty miles away after a chase by police officers. Goldsby admitted to Deputy Sheriff Farmer that he shot Nelms three times and Mrs. Nelms one time. The motor on his car was running before and during the shooting.

On behalf of the defendant, his pastor in a St. Louis church testified as a...