Harris v. State

• Decision Date: 29 September 1969
• Docket Number: No. 45486,45486
• Citation: 226 So.2d 760
• Parties: Herman HARRIS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 760

226 So.2d 760

Herman HARRIS v. STATE of Mississippi.

No. 45486.

Supreme Court of Mississippi.

Sept. 29, 1969.

Carsie A. Hall, Forrest B. Jackson, Jackson, for appellant.

A. F. Summer, Atty. Gen., by Guy N. Rogers, Asst. Atty. Gen., Jackson, for appellee.

SMITH, Justice.

Herman Harris was tried in the Circuit Court of the Second Judicial District of Hinds County upon an indictment charging him with the murder of Johnny Hollings. A verdict of guilty of murder was returned, but the jurors were unable to agree upon his punishment. Accordingly, Harris was sentenced by the court to serve a life term in the penitentiary. He appeals from that conviction and sentence.

The homicide, out of which the prosecution arose, occurred on a Saturday night at a place known as Thelma Evans Bee Bop Cafe. Hollings, also known as Sonny Boy, and his party had arrived first at the cafe. Hollings was operating the music machine when Harris came in. Harris and Hollings had never met or seen each other previously, but Harris mistook Hollings for a man he knew whose name was Estelle.

Harris accosted Hollings as Estelle and Hollings replied that he was not Estelle. Harris insisted that he was and pushed him. There ensued some further argument about whether Hollings was Estelle or not. A witness testified that Harris then said to Hollings that he, Hollings, didn't know who he was 'messing with,' and that he would kill him. Harris also told Hollings that he had a 'whole lot of dynamite' for him, and continued to insist that Hollings was Estelle. Shortly afterward Harris left the cafe. The time intervals are not clear from the record, but sometime later, apparently about midnight, Hollings went out the front door with a woman named Daisy Evans who wanted him to meet some people who were parked in an automobile outside.

Some five minutes after Hollings went out there was the sound of a shot and Daisy Evans was heard to scream 'somebody shot Sonny Boy.' Hollings, or Sonny Boy, was found to have been shot and was lying on his back in front of the cafe. He died without speaking. Directly after the shot was fired, Harris was observed to drive off rapidly in his automobile.

Officers who were called to the scene, after interrogating those present, obtained a bench warrant for the arrest of Harris. By the time this had been done, it was nearly three o'clock Sunday morning. Harris was living with his father at his father's home and was in bed when the officers arrived and took him into custody.

The investigation continued on the day following the shooting. It was learned that Hollings' death had been caused by buckshot which had penetrated his head and upper body, eleven having taken effect. This indicated that the weapon used had been a shotgun. Upon further examination of the scene in daylight, the wadding from a twelve gauge shotgun was discovered between the place where Harris' automobile had been parked and where Hollings had fallen.

In an effort to discover the weapon used, the officers revisited the home of Harris' father, who had some reputation as a deer hunter. When they arrived there, they did not enter the house but talked to the father out in front. According to the testimony of the officers, they asked him if he had a shotgun, and having been told that he did, asked if they might see it. The father went into the house and returned with a twelve gauge pump gun, which he handed to the officers. The officers testified, without objection, that the father also told them that his son, appellant Herman Harris, had taken the gun out the night before and sometime later had returned and placed it under a table. This was denied by the father when he testified as a defense witness at the trial. The gun was introduced in evidence without objection.

Certain statements were made by Harris to the officers after his arrest. Before any testimony was given as to this, however, counsel for appellant moved the court to make a preliminary determination, in the absence of the jury, as to 'whether or not Herman Harris waived his right or if he intelligently waived his right' before permitting these statements to be placed in evidence. The court granted the motion, excluded the jury, and heard witnesses upon that question, both for the prosecution and for the defense, granting each side the right of cross examination upon the issue.

The substance of the testimony for the prosecution was to the effect that Harris had been told that he did not have to make a statement or tell the officers anything. He was told, moreover, that whatever he said might be used against him in court. Harris told the officers, they testified, that he did not need a lawyer 'because he was not guilty' and consented to talk and did talk freely. No threats or promises of any kind were made or given and Harris told the officers that he would talk 'as he had nothing to hide.' Harris seemed intelligent and talked intelligently and as if he understood what had been said to him. He was told that he had a right to have a lawyer before he said anything. Harris was also told that the lawyer might be a lawyer of his own choice, or, if he could not afford a lawyer, that one would be appointed for him. One of the officers said that, in addition, he had read the warnings to Harris from what is sometimes called a 'Miranda' card. He produced the card and read from it into the record the warnings which he had given Harris. These were, he had a right to remain silent; anything he said could be used against him in a court of law; he had a right to talk to a lawyer and to have him present with him while he was being questioned; and, if he could not afford to hire a lawyer, one would be appointed to represent him. The giving of these warnings was followed by the question: 'Do you understand each of these rights I have explained to you?' To this, Harris had replied 'Yes, sir.'

Harris testified in his own behalf at this preliminary hearing. He contradicted the officer's testimony as to the date and as to those who were present. However, he admitted that he was told by Adams, a deputy sheriff, that he did not have to tell him anything and that he had a right to a lawyer. He admitted also that he knew that he had these rights and said that the deputy repeated to him the statement that Harris did not have to tell him anything. He said that he had gone through the fourth grade in school and had finished the tenth grade in 'GI school.' In other respects he denied the testimony of the officers as to what had occurred.

The evidence was sufficient to support the conclusion that Harris' rights had been explained to him in detail, and had been understood by him prior to interrogation and before he made any statement. Also, that his subsequent statements to officers were voluntarily made with an understanding of his rights and that his statements under these circumstances, constituted an intelligent waiver on his part. Upon the basis of this evidence, the court was justified in ruling that the statements made to the officers were admissible in evidence against Harris.

Following the court's ruling, the jury was returned to the courtroom and the trial proceeded. A deputy sheriff then testified as to statements made by Harris. He said that Harris had denied having killed anyone. Harris told the officers that on the occasion in question he had been drunk and could not remember anything about it. But, he had told them, he did remember that he had driven around the circular driveway of the Bee Bop Cafe and had parked at some pecan trees. He also remembered getting out of his car and taking out his gun, which had been lying on the floor boards, and 'standing there.' He remembered putting his gun back into the car and driving off, but he did not remember having pulled the trigger.

Harris testified as a witness in his own behalf. He admitted accosting Hollings as Estelle in the Bee Bop Cafe. He also admitted that he had said something to Hollings about dynamite. But, he said, he had realized almost at once that Hollings was not Estelle, and the remark about dynamite had been a joke and he had not made any threat to kill. He said also that, when he became aware of his mistake in addressing Hollings, as Estelle, he apologized to him and left.

He testified further that he had gone from the Bee Bop to Huggins Store. Afterwards, he returned to the Bee Bop looking for a girl of his acquaintance and was told by her sister that she was at home. Harris left, he said, and went to the girl's home but no one was there. He returned to the Bee Bop and told the sister she had sent him on a 'false trip.' He then went to his father's home but didn't go in. He decided to go to a place called Horton's, for a beer. He drove there but it was closed. He drove over to Bolton, cut across and hit Jones Road which he followed to Highway 22 near Sandy Hill. He then went to a place on Highway 22 called Dusty's still looking for a can of beer. He said, however, that there were so many cars parked at Dusty's that he decided not to go in. He took Highway 22 to Brownsville and followed that road home. He didn't know what time this was. He was not, he said, at the Bee Bop when the shot had been fired and knew nothing of any shooting there. He denied having been drunk that night and said that he only had three or four beers. Also, he denied having had a gun.

The only witness for the defense other than Harris himself, was...