Harper v. State, 42767

• Decision Date: 25 January 1965
• Docket Number: No. 42767,42767
• Citation: 171 So.2d 129,251 Miss. 699
• Parties: Willie B. HARPER, alias Bo Harper, v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 129

171 So.2d 129

251 Miss. 699

Willie B. HARPER, alias Bo Harper, v. STATE of Mississippi.

No. 42767.

Supreme Court of Mississippi.

Jan. 25, 1965.

R. Jess Brown, Jackson, Melvin L. Wulf, Bertram Perkel, New York City, for appellant.

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

ETHRIDGE, Justice:

Willie B. Harper, appellant, was tried and convicted in the Circuit Court of Scott County of an attempted rape of a sixteen-year old white girl of previous chaste character. He was sentenced to life imprisonment, and from that conviction and judgment appeals to this Court. For the reason hereinafter stated, we reverse and remand the case. We shall not undertake to state the facts except insofar as they may relate to the issues presented for decision.

The appellant assigns as error three items:

(1) The trial court erred in failing to sustain appellant's motions to quash the indictment and to quash the venire, on the grounds that Negroes were systematically excluded from the grand jury which indicted him, and Negroes were systematically excluded from the venire from which petit jurors were drawn, all in violation of the due process and equal protection clauses of the fourteenth amendment to the United States Constitution.

(2) It erred in overruling appellant's motion for a directed verdict, because the failure of the police to bring him before a judicial officer immediately after his arrest denied him due process of law guaranteed by the fourteenth amendment.

(3) The court erred in overruling appellant's objection to the introduction in evidence of a written confession, asserting it was extracted from appellant involuntarily and during a period of time when he was denied the assistance of counsel, in violation of the due process clause of the fourteenth amendment.

News of the occurrence had immediately permeated the community and the countryside. It happened on Friday night, November 23, 1962. An automobile identified as belonging to Harper was found at or near the scene of the alleged crime and people began searching for him. He had fled, leaving the car nearby. He traveled over the countryside, but Saturday night had his wife telephone McCrory, who had been sheriff, deputy sheriff, and chief of police at various times covering a period of about twenty-five years. McCrory had seen Harper's wife, and she promised to try to locate Harper and let McCrory know. On Sunday morning before daylight McCrory was called by appellant's wife, and he then talked over the telephone with appellant. Harper wanted the deputy to come to the home of his father-in-law, which he did, and Harper surrendered to him. Upon entering the house McCrory told Harper that he was under arrest. He searched him for a gun, and Harper stated he did not have any gun, but that he left it in the woods. Harper's wife fixed some food and gave it to him, and he and McCrory got into a car and drove to Forest. On the way to town, where the jail was situated, appellant voluntarily confessed to McCrory. When they reached the county seat, it was decided to carry Harper to Jackson, Hinds County, Mississippi, and there place him in the jail, because of the unsafe condition of the Forest jail.

He was questioned in the jail on Sunday and also Monday morning. Around noon or a little after on Nonday, he signed a written statement at the office of the Highway Patrol in the City of Jackson, which was a confession of the crime and accorded with the oral confession to McCrory. The court heard the evidence relative to the written confession and held that it was voluntary. However, the issue is close, and the evidence inconclusive. Escobedo v. People of State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). We think the trial court should have sustained the objection to the introduction of the written confession.

Nothing that we have said about the written confession is meant to cast any reflection on the oral confession which Harper gave McCrory on the way to the jail. No assignment of error is made regarding it, nor does appellant argue it was not competent. We think it was admissible. United States v. Mitchell, 322 U.S. 65, 64 S.Ct 896, 88 L.Ed. 1140 (1944); Parker v. State, 244 Miss. 332, 141 So.2d 546 (1962); Winston v. State, 209 Miss. 799, 48 So.2d 513 (1950).

Harper was not given a preliminary hearing before his indictment, nor did he have an attorney. The officers testified that he was advised of his right to a lawyer, but he stated he did not want one, or a preliminary hearing. Mississippi Code Annotated section 2473 (1956) provides: 'Every person making an arrest shall take the offender before the proper officer without unnecessary delay for examination of his case.' A preliminary hearing should have been held, by carrying appellant before a magistrate, advising him of the nature of the charge, and permitting him to plead to it, or giving him an opportunity to waive preliminary hearing, if he wished. The sheriff has no power to accept such a waiver, which must be done before a magistrate. Miss.Code Ann. Sec. 2486 (1956).

However, the failure to carry Harper before a judicial officer shortly after his arrest did not entitle him to a directed verdict of not guilty. Without the written confession, the overwhelming weight of evidence reflects defendant's guilt. The evidence as a whole, including the admissible oral confession, is ample to submit the issue of guilt to the jury. Generally, detention without commitment is one among other factors in considering whether a confession is free and voluntary. Gordon v. State, 160 So.2d 73 (Miss.1964); Moore v. State, 207 Miss. 140, 41 So.2d 368 (1949), appeal dismissed and cert. denied, 338 U.S. 844, 70 S.Ct. 93, 94 L.Ed. 516 (1949); Parker v. State, 244 Miss. 332, 141 So.2d 546 (1962). In this case the admissible oral confession was made by Parker almost immediately after his arrest, before any opportunity existed to bring him before a magistrate. Section 2473 means what it says, and police officers should take an accused before a judicial officer for preliminary hearing 'without unnecessary delay.' Winston v. State, 209 Miss. 799, 48 So.2d 513 (1950). But the legality of the detention after the lawful arrest is not the issue here.

The dispositive question in this case arises on the first assignment of error, concerning the alleged systematic exclusion of Negroes from jury service in Scott County. A careful examination of the undisputed facts, and of well established decisions of the courts, requires us to hold that the circuit court erred in overruling appellant's motion to quash the indictment and to quash the venire on this ground. The case will be reversed and remanded to the trial court for re-indictment and retrial.

The record reflects that in the 1960 census Scott County had a total population of 21,139, of which 13,050 or 62% were white and 8,089 or 38% were colored. There are approximately 5,200 registered electors in the county, of which 5,172 are white, being approximately 99.5%. Of these registered electors 28 are Negroes, or less than 1%. In Supervisor's District 1 there were 1600 qualified electors. The supervisor testified that he knew of no Negroes who were registered. In Beat 2 it was shown that there were about 600 qualified voters, with two or three Negroes. In Beat 3 there were 1300 qualified electors, with three or four Negroes. In Beat 4 there were 800 registered electors, with four Negroes, all of whom were over 61 years of age, so that they could claim exemption from poll taxes. In Beat 5 there were 800-900 registered electors. That supervisor knew of one Negro who was registered. He was born in 1881, so he would now be in his eighties. The circuit clerk testified that in Scott County there were 28 Negroes registered and qualified to vote, and as qualified electors, eligible for jury service, and three or four were registered but not qualified. It was stipulated there were no Negroes on the venire beginning March 11, 1963, being the day of the trial of this case on the merits. The evidence showed that there was one Negro on the grand jury, and as stated none on the venire. There were two terms of court in 1962, and one Negro was drawn on the venire. There was one in 1963, the year of this trial, and one in 1962. There was one called in 1961. There were none in 1960, none in 1959, none in 1958, two in 1957, one in 1956, two in 1955, and none in 1954.

Since 1880 it has been settled law that systematic and discriminatory exclusion of Negroes from jury service violates the fourteenth amendment of the United States Constitution. In 1907, this Court in Farrow v. State, 91 Miss. 509, 45 So. 619, held that purposeful exclusion of Negroes from jury venires was unconstitutional. Gordon v. State, 243 Miss. 750, 140 So.2d 88 (1962); United States ex rel. Goldsby v. Harpole, 263 F.2d 71 (5th Cir. 1959), certiorari denied, 361 U.S. 838, 80 S.Ct. 58, 4 L.Ed.2d 78 (1959); Seay v. State, 212 Miss. 712, 55 So.2d 430 (1951); Patton v. State of Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76, 1 A.L.R.2d 1286 (1...