Hamburg v. State

• Decision Date: 10 May 1948
• Docket Number: 36776.
• Citation: 203 Miss. 565,35 So.2d 324
• Court: Mississippi Supreme Court
• Parties: HAMBURG v. STATE.

35 So.2d 324

203 Miss. 565

HAMBURG v. STATE.

No. 36776.

Supreme Court of Mississippi

May 10, 1948

W. F. Latham, of Quitman, for appellant.

Greek L. Rice, Atty. Gen., and R. O. Arrington Asst. Atty. Gen., for appellee.

L. A SMITH, Sr., Justice.

Appellant was jointly indicted with others for the murder of Mr. Emmett Buckley. He obtained a severeance, was tried and convicted and sentenced to electrocution. Upon appeal here he assigns several errors, but we discuss only those assignments which we consider serious enough to merit discussion.

Mr Buckley, a State Senator, was walking to his home in Enterprise late at night, when appellant, and some other young men passed him in a truck, as he was passing over a long bridge spanning the Chickasawhay River. At the instigation of appellant, the truck was stopped near the end of the bridge, and he borrowed a knife from one of his companions. They all alighted from the truck, and went back and met Senator Buckley for the purpose of robbing him, or as appellant put it in his confession, 'They were aiming to get the money and dump the man'. As stated, the bridge was across the Chickasawhay River. Deceased attempted to defend himself with a small pocket knife, and also screamed for help. In the scuffling, appellant stabbed Senator Buckley fatally, whereupon all of the youths, having become frightened by his outcries, fled without robbing their victim. The resident of a nearby home, aroused by the screams, and a nephew of the Senator, attracted by the noise, went to the scene, and carried him to the neighboring home, but he died in a few minutes. Certain clues led to appellant, who was arrested and confessed. No point was made against the admissibility of the confession either in the lower court or here.

At the trial, defense was interposed on the ground of appellant's insanity, the proof offered in support thereof being that he was epileptic. Conceding that the conflicting testimony sufficiently established him to be afflicted with epilepsy, yet all of the witnesses, psychiatrists, medical doctors, and lay witnesses alike, agreed that he knew the difference between right and wrong. According to our decisions, this was sufficient to establish his legal sanity, as relating to the perpetration of the crime charged against him. Nelson v. State, 129 Miss. 288, 92 So. 66. In the very recent case of Wilson v. State, Miss., 30 So.2d 62, not yet published in State Reports, we held that the test of a defendant's sanity is whether he had sufficient mental capacity at time of commission of homicide to distinguish between right and wrong, regardless of whether defendant was partially insane. Since there is no testimony in this record justifying any conclusion that appellant was legally insane, even partially, we are constrained to overrule this contention. Compare also Carter v. State, 199 Miss. 871, 25 So.2d 470, at page 472.

Appellant filed a motion for a new trial, and during the hearing thereof witnesses were introduced, and the motion overruled, at a time when the defendant was in jail, and, therefore, not present in court. No objection was raised against proceeding in his absence, by his attorney, who, of course, filed the motion and examined the witnesses on behalf of his client, the appellant. On the authority of some earlier cases, appellant urges here that this procedure, in appellant's absence, was prejudicial error, and that neither appellant nor his attorney could waive it. On the other hand, the Attorney General argues that it was not prejudicial error entitling appellant to reversal, since his presence was waived by his attorney, who had a right to do so; and since nothing occurred during the hearing of the motion to the prejudice of appellant. We have receded from our earlier view, as expressed in the cases cited by appellant. Thomas v. State, 117 Miss. 532, 78 So. 147, 149, Ann.Cas. 1918E, 371.

Section 2519, Code 1942, a rescript of the statutes in the Codes of 1906 and 1930, and Hemingway's Code, in its pertinent part, reads as follows: 'In criminal cases the presence of the prisoner may be waived, and the trial progress, at the discretion of the court, in his absence, if he be in custody and consenting thereto'. In the case at bar, during the hearing of the motion for a new trial, one witness in answer to a question not addressed to the point at issue, and with no purpose relating thereto, stated that the defendant was in jail. The trial judge thereby was apprised of his absence. His attorney caused the hearing to progress in the absence of appellant, and no prejudice to his cause appears to have been suffered by him on account thereof. The trial Judge, aware of the absence, in his discretion did not suspend proceedings until appellant was present; the appellant, at a time when he was in custody, waived by his counsel his right to be present; and was not harmed thereby. The 'progress' of the hearing, in appellant's absence, during the consideration of the motion for a new trial, was justified under the statute.

In the Thomas case, supra, we held that the statute is constitutional and valid; announces a reasonable rule; promotes fair and impartial trials, and is conducive to administration of justice; does not deny any constitutional right, simply permits its waiver, and, that cause would not be reversed unless it be shown that, because of his absence, defendant did not receive a fair trial. A long list of cases from many other states, holding in harmony with our views in the Thomas case, is cited therein. The rule is no different in a felony case and a capital case, under the statute. We declared in the Thomas case: 'The statute here makes no exception or distinction between felonies and capital cases. In fact, all capital cases are classed as felonies.' We dealt with this same question in Winston v. State, 127 Miss. 477, 90 So. 177, 179, involving a homicide, where we said: 'We think there is no merit in this contention because Section 1495, Code 1906' (as construed in the Thomas case) 'provides that the presence of the prisoner may be waived.' We further held that 'unless we can say from the record that the appellant is prejudiced by his presence being waived, we will not reverse the case.'

In Odom v. State, 172 Miss. 687, 161 So. 141, a robbery case, a felony, the motion for a new trial was heard in the absence of a defendant in custody. This, it is said, was by consent of appellant's counsel, as in the case at bar and that Section 1276, Code 1930, permits this to be done where the defendant was not prejudiced, citing Winston v. State,...