Gordon v. State

• Decision Date: 03 June 1940
• Docket Number: 34067
• Citation: 196 So. 507,188 Miss. 708
• Court: Mississippi Supreme Court
• Parties: GORDON v. STATE

196 So. 507

188 Miss. 708

GORDON v. STATE

No. 34067

Supreme Court of Mississippi

June 3, 1940

APPEAL from the circuit court of Warren county, HON. R. B. ANDERSON Judge.

William Gordon was convicted of murder and he appeals. Affirmed.

Affirmed.

Ben Guider and James Biedenharn, both of Vicksburg, for appellants.

The lower court erred in refusing to grant the defendant's motion to permit the jury to view the scene of the homicide.

Sec 2066, Code of 1930; 16 C. J. 826, 827; Clark's Criminal Procedure, 457; Springer v. City of Chicago (Ill.), 12 L. R. A. 609; McPherson v. State, 124 Miss. 361 86 So. 854; Bailey v. State, 147 Miss. 428, 112 So. 594; Jones v. State, 141 Miss. 894, 107 So. 8; Armstrong v. State, 179 Miss. 235, 174 So. 892; Washington v. State (Fla.), 98 So. 605; Kilgore v. State (Ala.), 95 So. 906; O'Berry v. State (Fla.), 36 So. 440; Haynes v. State (Fla.), 72 So. 180; State v. O'Day, 188 La. 169, 175 So. 838; 4 C. J. 797; Stanley v. Powers, 125 Fla. 322, 169, So. 861.

The lower court erred in refusing to grant defendant's requested instruction to the following effect: "The court instructs the jury for the defendant that the testimony of an accomplice in a crime should be received and considered by the jury with great caution, suspicion, and jealousy."

Green v. State, 55 Miss. 454; Fitzcox v. State, 52 Miss. 923; Wilson v. State, 71 Miss. 880; Dedeaux v. State, 125 Miss. 326, 87 So. 664.

W. D. Conn, Jr., Assistant Attorney-General, for appellee.

The granting or refusing of a view by the jury is a matter addressed to the sound discretion of the presiding judge. This court will not review a trial court's ruling in discretionary matters unless it appears that the court manifestly abused that discretion.

Here we think that it makes absolutely no difference which of the two actually did the shooting. These parties had set out fully armed with the intention of committing the crime of robbery. The killing of Priestly was a natural and probable result of the joint enterprise.

Lusk v. State, 64 Miss. 845, 2 So. 256; Woodward v. State, 166 Miss. 596, 143 So. 859; Odom v. State (Miss.), 161 So.141.

Whether the appellant actually struck Priestly can make no difference. The bullet holes in the door facing showed that he was shooting at Priestly or in his general direction, whether he struck him or not. In this situation it appears to us that there was no necessity, nor any good reason, for the court entering its order to go to the scene of the homicide. Nothing could have been gained by it. Certainly, there was no manifest abuse of discretion by the court in this respect.

Without determining whether the instruction which was refused states a correct principle of law, we submit that no error can be predicated on its refusal, because this court has said from time to time that the giving or refusing of this type of instruction is discretionary with the trial judge and the refusal of such an instruction is not assignable as error.

Watkins v. State, 134 Miss. 211, 98 So. 537; Cheatham v. State, 67 Miss. 335, 7 So. 204.

Smith, C. J., Ethridge, J., delivered a specially concurring opinion.

OPINION

Smith, C. J.

This is an appeal from a death penalty for murder. While the appellant and Charlie Clemons were engaged in robbing Pat and Eliza Bingham, at their residence, about eleven o'clock at night, Pat called to Richard Priestly, who lived a short distance away, and who then came to the Bingham residence. When he arrived at the steps from the ground to the gallery of the residence, Clemons was on the gallery and the appellant on the inside of the house. The appellant, according to the undenied State's evidence, told Clemons to "kill the son-of-a-bitch" and both of them began to shoot. One bullet only struck Priestly. The appellant fired three shots through a door leading from the room he was in onto the gallery, and one in another direction which struck the floor of the room. An unchallenged confession of the appellant admits practically all the State proved, except that he told Clemons to kill Priestly, and states that the appellant did not shoot at Priestly, but shot only "to scare the man outside away". The appellant offered no evidence except that of an engineer who produced a diagram drawn by him to a scale of the Bingham residence from which it appears that no bullet from within the room of the residence from where the appellant was said by the Binghams to be standing when he was shooting could have struck a, man standing at the foot of or on the gallery steps. The accuracy of this diagram was not challenged.

The appellant complains of the refusal of the court below (1) of his request for a view by the court and jury of the scene of the homicide, and (2) for an instruction charging the jury "that the testimony of an accomplice in a crime should be received and considered by the jury with great caution, suspicion and jealousy."

The granting of a request, under Section 2066, Code of 1930, for a view by the Court and jury of the place at which the crime, for which a defendant is being tried, was committed, rests in the discretion of the trial judge. The appellant's contention is that this discretion was here abused in that a view of the premises would have demonstrated to the jury that Priestly was not struck by a bullet from the appellant's pistol, which fact might have induced the jury not to impose the death penalty on him, but to fix his punishment at imprisonment for life. It is difficult to perceive from the evidence how a view of the premise could have given the jury any more definite information in this connection than did the engineer's diagram introduced in evidence, and when such is the case a view by the jury of the premises is unnecessary and should not be granted. National Box Co. v. Bradley, 171 Miss. 15, 26, 154 So. 724, 157 So. 91, 95 A. L. R. 1500.

Leaving out of view the particular language in which this refused instruction is couched, the granting of such an instruction "rests in the discretion of the presiding judge, and his refusal so to do is not assignable as error." Cheatham v. State, 67 Miss. 335, 7 So. 204, 206, 19 Am. St. Rep. 310; Wilson v. State, 71 Miss. 880, 16 So. 304; Brown v. State, 72 Miss. 990, 18 So. 431; Watkins v. State, 134 Miss. 211, 98 So. 537; Commonwealth v. Phelps, 192 Mass. 591, 78 N.E. 741; Carroll v. State (Tex. Cr. App.), 62 S.W. 1061; State v. Hier, 78 Vt. 488, 63 A. 877.

Affirmed; sentence to be executed on Thursday, the 11th day of July, 1940.

SPECIALLY CONCURRING OPINION.

CONCUR BY: Ethridge

Ethridge J., delivered a specially concurring opinion.

I concur in the result of the affirmance of this case, but not in the view that the refusal under all circumstances of the instruction, charging the jury "that the testimony of an accomplice in a crime should be received and considered by the jury with great caution, suspicion, and jealousy, " is not assignable as error under any circumstances. I do not think the facts in this case require the giving of such an instruction, although no harm would come from giving it.

In the case of Green v. State, 55 Miss. 454, it was held that "In a case of homicide, where the evidence may warrant the belief that an important witness for the state was an accomplice in the crime charged, it is error in the court to refuse to instruct the jury, on behalf of the defendant, that 'the testimony of an accomplice in crime should be received with great caution, and the jury may disbelieve such testimony altogether.' It is the right of the accused, in such a case, to have the jury informed of the distrust with which the law regards the testimony of an accomplice, and it is no reason for refusing an instruction upon this point that the jury have already been instructed that they are the sole judges of the evidence, and may wholly disregard the testimony of such witnesses, in general, as they do not believe." This case was cited in Wilson v. State, 71 Miss. 880, 885, 16 So. 304, and Owens v. State, 80 Miss. 499, 512, 32 So. 152.

In the opinion of Wilson v. State, supra, the Court, speaking through Judge Campbell, said: "The appellant complains because the court refused to instruct the jury 'that the evidence of an accomplice should be weighed with great caution, jealousy, and distrust, and the jury may disbelieve such testimony altogether.' The court said to the jury that such testimony 'should be weighed with great care and caution, ' and was to be rejected, if believed untrue. This was enough. The court was not bound to pile up words suggestive of a desire for the jury to dismiss, as unworthy of consideration, the testimony of an accomplice. Having cautioned the jury as to the suspicious source of such testimony, it was proper to leave the jury to deal with it according to its effect on the minds of the jurors, who are not likely to accept too readily such testimony. The rule is for the presiding judge to inform the jury that the testimony of an accomplice is to be received and considered with caution, as from a polluted and suspicious source; but it must, in large measure, be left to the judge to choose the language in which this caution shall be given. There is no uniform rule. Cases vary with circumstances. In some cases, stronger words of caution might be more appropriate than in others. In Green v. State, 55 Miss. 454, the judgment sentencing to death was reversed because of the refusal of the trial court to give an instruction asked by the accused to the effect that 'the testimony of an accomplice in crime should be received with utmost caution, and the jury may wholly disbelieve such...