Hale v. State

• Decision Date: 26 November 1894
• Citation: 16 So. 387,72 Miss. 140
• Court: Mississippi Supreme Court
• Parties: STANLEY HALE v. THE STATE

16 So. 387

72 Miss. 140

STANLEY HALE v. THE STATE

Supreme Court of Mississippi

November 26, 1894

FROM the circuit court of Tate county. HON. EUGENE JOHNSON, Judge.

Appellant has been convicted of murder, and appeals. The case sufficiently appears from the opinion.

Reversed and remanded.

Ira D Oglesby, for appellant.

It may be true that an opinion as to the guilt or innocence of Robertson was not necessarily a disqualification of a juror to try appellant, but usually no intelligent attorney would think of accepting a juror or exercising peremptory challenges without seeking information not only as to his frame of mind towards the defendant on trial, but also towards his co-defendant. Within reasonable limits each party has a right to ask pertinent questions, to show not only that there existed proper grounds for the challenge, but to elicit facts to enable him to decide whether or not he Will make a peremptory challenge. Thompson & Merriam on Juries §§ 171, 243, and 254; Thompson on Trials, § 101. See, also, 12 N. E. Rep., 99; 69 Ill. 303; 45 Ib., 171; 27 Fla. 370; 23 Am. Dec., 130; 28 N.W. 964; 23 Cal. 379. See also, Smith v. State, 55 Miss. 410; Hubbard v. Rutledge, 57 Ib., 7; Smith v. State, 61 Ib., 754. The practice of permitting counsel to examine jurors found competent by the judge, with a view to peremptory challenge, was approved in Story v. State, 68 Miss. 609.

It was error to deny compulsory process for the absent venireman. 24 Miss. 445.

N. A. Taylor, on the same side.

The reason why the details of a previous difficulty are not usually admitted is, that they divert the jury into other paths, the trial of other issues. But when no such trouble exists, and where the knowledge of a previous difficulty would materially aid to a right understanding of the relation and situation of the parties at the time of the killing, it should be admitted. The same principle applies as that under which proof may be made of antecedent threats, or to prove the dangerous character of the deceased. It shows whether it was probable that deceased was the aggressor, and tests the reasonableness of defendant's apprehensions. Spivy v. State, 58 Miss. 858; Guice v. State, 60 Miss. 714.

W. D. Miller, on the same side.

The court should have required the state to introduce the eyewitnesses who were shown to be under subpoena and in attendance. The state did not offer a single eyewitness, but rested its case upon purely circumstantial evidence. It Should not be the policy of the state to suppress or withhold facts, even though these might result in an acquittal. Indeed, it is as much, if not more, the duty of the state to prove the party innocent, if innocent. See 52 N.W. 1033; 49 Ib., 226; 55 S.W. 786; 32 P. 854; 33 N. E. Rep., 681; 39 Mich. 309; 8 C. & P., 745.

The ninth instruction for the state, on the subject of reasonable doubt, is erroneous. It attempts to define the undefinable thing--reasonable doubt. 60 Miss. 441; 53 Ib., 424; 19 Am. & Eng. Enc. L., 1081.

G. D. Shands, for the state.

Appellant moved for and obtained a severance, that his case might be tried apart from that of Robertson, yet he now claims, as to the exercise Of his peremptory challenge, that the proceedings shall be the same as if the trial was joint. The reasoning of appellant is bad, and the authorities cited do not sustain the contention. The whole matter of impaneling the jury is in the discretion of the court. Powers v. Presgroves, 38 Miss. 227; Spies v. People, 3 Am. St. Rep., 320. It is only competent to show that the juror has no bias against the man on trial. 9 Am. St. Rep., 327; 23 Ib., 428.

When compulsory process was asked for the venireman, the call of the venire had not been completed. It does not appear that a renewal of the demand for such process had been made after the special venire had been exhausted.

It was proper to exclude the jailer as a juror. The sheriff is, by law, the jailer, and the acting jailer must be his deputy. This was a matter within the discretion of the court.

The failure of the clerk to sign the venire facias is immaterial. The writ was returned, and accomplished its purpose. The objection is purely technical.

It was not obligatory on the state to introduce the eyewitnesses of a crime. Morrow v. State, 57 Miss. 836; 35 Am. St. R., 206.

The exclusion of evidence as to a previous difficulty was clearly proper. It had no connection with the killing.

Frank Johnston, attorney-general, on the same side, filed an elaborate brief discussing the facts at length, and, on the questions of law decided by the court, made the following points:

It is conceded that jurors should be impartial, but I deny that the right of accused has been impaired in this case. Each juror stated on his voir dire that he had formed no opinion whatever as to the guilt of accused. It was wholly immaterial as to whether the jurors had any opinion as to the guilt of Robertson, having sworn that they had no opinion as to defendant's guilt. This is the precise point, and it includes, necessarily, the proposition that all opinions that they had on every subject did not affect their impression in this particular case.

The legal rule involved requires no argument. The only thing is to apply it to the case. The matter rests largely in the discretion of the court. Head v. State, 44 Miss. 731; Powers v. Presgroves, 38 Miss. 227; Gilliam v. Brown, 43 Ib., 641.

The jailer was properly excluded. Section 4132, code 1892, makes the sheriff the jailer, and the presumption is that the juror was his deputy, and he, being the custodian of prisoners, should not have been a juror.

The motion to quash the special venire because the clerk had not affixed his signature, was properly overruled. The writ had then become functus officio. At most, it was an immaterial departure from the prescribed mode. 12 Am. & Eng. Enc. L., 343; 35 Mich. 1; 45 Ib., 424; 33 Minn. 480; 7 Texas App., 23; 3 Wend., 258; 19 S. Car., 435.

Evidence of the preceding difficulty was properly excluded. Foster v. State, 70 Miss. 755.

OPINION

WOODS, J.

The action of the court below in refusing to compel the state to introduce as its witnesses the eyewitnesses to the homicide, was not error. The eyewitnesses were the accused himself, his co-defendant, Robertson, from whom he had obtained a severance, and who was not then on trial, and Roxie Hall, a sister of the accused. Each one of these persons, we may reasonably suppose, would be in sympathy with the defendant, and would testify as favorably as possible in his behalf; and, in the opinion of counsel for the state, the evidence of none of them was necessary to make out the state's case. The defendant himself was examined as a witness on his own behalf, and his co-defendant, not on trial, was also introduced by and testified for him. The evidence, thus offered by the defense, of eyewitnesses was most favorable to its theory of the case, and no injury was sustained by the defendant thereby. We content ourselves by declaring that no injury Was sustained by the defendant by the action of the court complained of, and that no reversal, on this ground, can be had. The point is clearly ruled by Morrow v. State, 57 Miss. 836.

The exclusion of the particulars of the "difficulty," whatever that may have been, of the Friday night preceding the homicide, was altogether correct. This question was very recently considered by us in the case of Foster v. The State, 70 Miss. 755, 12 So. 822 and to that case we now refer as abundantly supporting the action of the trial court in refusing to allow evidence of the particulars of the "difficulty" of Friday night to go to the jury.

The overruling of the motion to quash the venire facias because of the clerical omission of the clerk's signature thereto, was proper. Under § 3439, code 1892, this omission rendered the writ not void, but irregular, and amendable on motion to quash. As held in Spratley v. Kitchens, 55 Miss. 578, and the cases there cited, the motion to quash for defect amendable, dispenses with the necessity for actual amendment, for the reason that, the writ having served its purpose by bringing the persons required to be summoned before the court, and the defect being clerical only and amendable, the writ must not be declared void, although an actual amendment is not made.

There Was no error in the trial court's refusing, on defendant's application, to direct compulsory process for the special venireman, Brown, who had been duly summoned, and who was not in attendance. There is an intimation to that effect in Boles v. The State, 24 Miss. 445, but that was upon consideration of a statute which required the jurors to be taken from the persons "thus summoned," unless the special venire should be exhausted before the jury is completed. Hutch. Code, § 1007. But that statute was amended, certainly, as early as 1857, and, as thus amended, it has been brought forward in all our subsequent codes. By the codes of 1857, 1871, 1880 and 1892 the jury is to be impaneled from those "summoned and in attendance" under the special venire, unless that shall have been exhausted without securing a jury, in which event resort shall be had to the regular panel, etc. The change in the law, which now requires the jury to be made up from the special veniremen "summoned and in attendance," completely vindicates the court's action in this particular.

The setting aside the jailer, who had been summoned on the special venire facias, was, we think, a proper and wise exercise of judicial discretion vested in a trial court in the selection of fit persons in criminal cases. Under our statutes, the sheriff of the county is ex officio jailer of his county, but that this important officer may properly discharge...