Hall v. State, 42910

• Decision Date: 08 June 1964
• Docket Number: No. 42910,42910
• Citation: 250 Miss. 253,165 So.2d 345
• Parties: Leo HALL v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 345

165 So.2d 345

250 Miss. 253

Leo HALL v. STATE of Mississippi.

No. 42910.

Supreme Court of Mississippi.

June 8, 1964.

Barnett, Montgomery, McClintock & Cunningham, Jackson, for appellant.

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

KYLE, Presiding Justice.

The appellant Leo Hall was indicted, along with one John C. Clements, at the November 1962 term of the Circuit Court of the First Judicial District of Hinds County, on a charge of attempted criminal abortion. The crime was alleged to have been committed on September 4, 1962. The indictment charged that the appellant and his coindictee, John C. Clements, 'did then and there willfully, unlawfully and feloniously and knowingly attempt to cause Mary Ann Eakin Johnson, a female, then pregnant with child, to abort and miscarry by the use of instruments, medicines and drugs and by transporting the said Mary Ann Eakin Johnson to the Travel Inn Motel and there renting a room, and causing the said Mary Ann Eakin Johnson to disrobe, and injecting drugs into her body, all of which said acts were so performed in the furtherance of the attempt to commit the said abortion and miscarriage, and all of which said acts so performed were not necessary for the preservation of the life of the said Mary Ann Eakin Johnson, but the said Curtis Leo Hall and John C. Clements were intercepted and failed therein and were prevented from committing said abortion.'

A severance was granted, and the appellant Hall was tried and convicted at the January 1963 term of the court, and was sentenced to imprisonment in the state penitentiary for a term of three years. From that judgment he prosecutes this appeal.

The record shows that the police department of the City of Jackson received information on September 4, 1962, that an abortion was planned and was about to be performed on Mary Ann Aiken (referred to in the indictment as Mary Ann Eakin Johnson) by the appellant Leo Hall. The information was passed on to detective Fred Sanders and R. Q. Turner, members of the Jackson police force. The first information received was, that the abortion would be performed on Tuesday, September 4; but the police department was later informed that the abortion would not be performed until Wednesday night, September 5. That information was immediately passed on to Sanders and Turner, along with other information that the abortion was to be performed at the Travel Inn Motel, on Highway 51 South, just outside the corporate limits of the City of Jackson; and that Hall was to pick up Mary Ann Aiken at Highway 80 Trailer Court. The officers established a watch across the street from the Trailer Court during the early part of the night, and maintained a lookout for Hall's automobile, but they did not see Hall's car approach the Trailer Court. Other detectives, however, were on the lookout for Hall's 1959 black Ford sedan, and about 8:30 o'clock Sanders and Turner were notified that Hall's 1959 black Ford car was parked at the Travel Inn Motel on Highway 51 South. Upon receipt of that information Sanders and Turner proceeded to the Travel Inn and found the 1959 Ford parked in front of Room 152. Sanders and Turner parked their car three doors south of Room 152. The sheriff's office in the meantime had been notified of the investigation, and deputy sheriff William Shuttleworth arrived at the Travel Inn about the time that Sanders and Turner parked their car near the entrance to Room 152. Sanders and Shuttleworth where left to maintain a watch near the entrance for persons entering or leaving the room, while Turner made inquiry at the motel office as to the name of the registered occupant of the room. Turner found that the motel registration card showed the name of the occupant as 'Paul Lee, Hernando, Mississippi,' and a Tennessee automobile tag No. 19210.

A few minutes after Turner left, Shuttleworth and Sanders saw Hall come out of Room 152 and walk over to the black Ford and place something in the car and then go back into the room. A few minutes later they saw Hall come out again and get a bottle of Coca Cola and then go back into the room. After that Shuttleworth and Sanders saw another man, who was later identified as John C. Clements, come out of the room and go to a parked car, and then go back into the room with a brown leather bag. About that time Turner came back to the car in which Shuttleworth and Sanders were seated. A few minutes later the three officers observed a strong odor of medicines or disinfectants emanating from Room 152; and they heard noises like metal instruments clanking and furniture being moved. Shuttleworth then knocked on the door and said, 'Leo, open the door.' Hall said, 'Just a minute.' Shuttleworth waited a short time and knocked again, and finally the door was opened. The officers entered the room and Shuttleworth told Hall that he was under arrest for abortion. Clements and Mary Ann Aiken were found hiding in the bathroom. Mary Ann Aiken had a sheet wrapped around her and a skirt in her hand. Clements had a pistol in his hand, which he delivered to the deputy sheriff. The officers saw that two drawers had been removed from the dresser and placed on the bed. The officers found in the bathroom a quantity of disinfectants and a complete assortment of surgical and medical instruments, appliances and supplies, including forceps, catheter tubes, hypodermic needles, syringes, and a number of bottles of liquid and pills. The brown leather bag was lying on the floor open. Clements and Mary Ann Aiken were placed under arrest.

A few minutes later an ambulance was called, and Mary Ann Aiken was sent to the University Hospital for a medical examination. Detective Turner accompanied her to the hospital. Other officers were called in, and Hall and Clements were carried to the county jail and locked up for the night. Sanders and Shuttleworth remained in Room 152 for a considerable period of time. Pictures were made of the room and the bathroom and the contents. Each piece of surgical and medical equipment was tagged and delivered to the deputy sheriff for safekeeping.

Detective Turner testified that he saw Hall again that night in a conference room upstairs at the jail. No one was in the room except Turner and Hall. Turner stated that he had known Hall for several years and that he said to Hall, 'Leo, why did you get mixed up in something like this?' Hall's answer was, 'Well, you know how it is, when a pretty little ole girl gets into trouble you want to help her out.'

Nine witnesses were called to testify on behalf of the State. The defendant was the only witness who testified in his behalf on the main issue presented for the jury's decision.

The appellant's attorneys have assigned and argued four points as grounds for reversal of the judgment of the lower court: (1) That the trial judge erred in allowing the State to prove, over the defendant's objections, statements made by the accomplice Mary Ann Aiken to Dr. Chester M. Lake, implicating the defendant, which were made out of the presence and hearing of the defendant and long after the commission of the alleged offense; (2) that the trial judge erred in allowing the State to prove, over objections, statements made by the accomplice Mary Ann Aiken to detective R. Q. Turner implicating the defendant, which were made out of the presence and hearing of the defendant and long after the commission of the alleged offense; (3) that the trial judge erred in overruling a motion of the defendant for a peremptory instruction at the close of the State's evidence; and (4) that the trial judge erred in granting certain instructions for the State.

In view of the fact that the judgment of the lower court must be reversed and a new trial granted because of errors in the instructions, it is not necessary that we discuss in detail the testimony of the witnesses.

The first two points mentioned in the appellant's assignment of errors relate to the admission of the testimony of Dr. Chester M. Lake and the testimony of detective R. Q. Turner concerning statements alleged to have been made to them by Mary Ann Aiken which were entirely contradictory of testimony given by her when she was called to testify as a witness.

The record shows that Mary Ann Aiken was called to testify as the first witness for the State. She proved to be a very unfriendly, indeed hostile, witness. She stated that she had been in Jackson two or three days, that she knew the defendant Hall, and she had seen the defendant John C. Clements prior to the night of September 5, 1962. She stated that she left the trailer home of Mrs. Lillian Whitehead about 8:00 o'clock on the night of September 5, and met Mr. Hall at the Highway 80 Trailer Park. She stated that she and Mr. Hall drove to the Travel Inn Motel and Mr. Hall parked his car at the American Legion Post and registered in Room 152. She stated that she did not go to the Travel Inn Motel to have an abortion--that was not the purpose of Mr. Clements coming to the room. She stated that she did not tell Mrs. Lillian Whitehead that she was going to the Travel Inn Motel to have an abortion. She stated that her purpose in going to the motel with Mr. Hall was to discuss business and have a few drinks, that she had asked Mr. Hall to get her a car. She admitted that she did not tell the district attorney, the day she was in his office in September, that she was at the Travel Inn Motel with Mr. Hall to discuss business. She was then asked whether she gave the police officers a statement shortly after she was arrested. She admitted that she gave the police officers a statement, but she stated that what she said in that statement was what they wanted her to say, that they told her she would not be prosecuted if she would give them the information. She was then asked whether or not it was true that she admitted in that statement that she was down there for the purpose of...