Hartfield v. State

• Decision Date: 05 June 1939
• Docket Number: 33548
• Citation: 189 So. 530,186 Miss. 75
• Court: Mississippi Supreme Court
• Parties: HARTFIELD v. STATE

189 So. 530

186 Miss. 75

HARTFIELD v. STATE

No. 33548

Supreme Court of Mississippi

June 5, 1939

APPEAL from circuit court of Yazoo county HON. J. P. ALEXANDER Judge.

Jack Hartfield was convicted of murder, and he appeals. Reversed and remanded.

Reversed and remanded.

Howie Howie & McGowan, of Jackson, for appellant.

The witnesses for the defendant, being taken into custody by the police department of the City of Jackson and after being questioned for six or seven hours caused them to sign a statement, and thereafter the witnesses Carl Bailey and R. B (Happy) Davis, were indicted for murder without any proof whatsoever, and just prior to being put on the stand taken into a room privately by the prosecuting attorneys and there requested to make a statement, was very unfair to the defendant in that it was in a manner intimidating the witnesses of the defendant.

Smith v. State, 185 So. 193.

When these witnesses were on the stand the district attorney examined them at great length with reference to the statements made after they had been grilled for six or seven hours, and after every effort had been made to intimidate these witnesses by having been indicted, and after every effort was made to embarrass them and to influence the jury by showing that they had been indicted and had made a statement which in some small particular was not the same as the statement made by them before the jury, but which did not vary in any particular matter. We say this system of practice ought not to prevail, especially in cases of this kind.

Under the statute, section 996, killing of another in heat of passion without malice by the use of a dangerous weapon without authority at law and not in necessary self defense shall be manslaughter.

We recognize the fact that the jury are the judges of fact and where there is reasonable ground for an interpretation other than what we now contend for, that the jury would be authorized to pass upon the question whether under all the circumstances the defendant was guilty of murder or manslaughter, but we insist that under the circumstances as alleged here it was a clear case of manslaughter.

Vance v. State, 183 So. 280.

Juries are prone to take, and would naturally take, all the instructions of the state as being the law on the state's theory, and if the jury in this case took the state's instructions, there was no instruction to them for manslaughter verdict. The jury should have been instructed by the state that along with other verdicts that could be returned by them, they might return a verdict of manslaughter.

Lee v State, 94 So. 889; McLaurin v. State, 1 So. 747.

We infer and contend that there may be cases where the time for cooling is so small and under such circumstances as that the court would be authorized and justified in excluding from the jury the question of murder. We insist that this is one of those cases. That when this appellant was knocked down and kicked and stamped in the face so as to be made "goofy" that three to ten minutes, the extreme time as testified by different witnesses, was not sufficient time for him to recover his equilibrium physically and mentally. If it be true, and that is the undisputed proof in this case, that without any provocation he was knocked down and kicked in the face by the deceased, certainly the lapse of that small time was not sufficient for him to cool.

Haley v. State, 85 So. 129; Dalton v. State, 105 So. 784.

The opening argument in this case was made by Honorable Luther Manship, county attorney of Hinds County. In closing his argument, as shown in the bill of exceptions, he said: "Now, gentlemen, we come to the question of punishment, you should not bring in a verdict of manslaughter or a life sentence. What is the use of sending a man to the penitentiary for life, because he is already there under life sentence, and anything less than death penalty would not be punishment in this case."

That on objection being made by the attorneys for the defendant in open court and request for a mistrial and discharge of the jury the court said: "In view of the fact that the jurors have two matters to decide, one the guilt or innocence of the defendants, and the other the nature of punishment in case of guilt, I do not think the argument is outside the proprieties."

The court, in effect, said to the jury, you can determine the nature of the punishment. This could be true only on one condition, that they found him guilty of murder.

Magness v. State, 60 So. 8.

In the case at bar there was no evidence that the appellant had been convicted of a capital offense and sentenced to the penitentiary for life. The only part of the evidence that tends to prove this, if at all, is the question asked the witness Tann by the district attorney: "You never knew him at all except as a convict in the state penitentiary, who was committed there for life, did you?" To which the witness answered, "No sir."

Under the instructions of the court and under the law in this case the appellant was entitled to have a hearing and determination of this case the same as if he had never been convicted of any crime and was not an inmate of the penitentiary, and the argument of the jury was highly prejudicial that they must give him the death penalty if he was to be punished at all, and the court by his statement to the jury that the jury being the ones to judge and determine the punishment, should take this as proper argument and consider the same in reaching their verdict, thus excluding the finding for manslaughter or giving life imprisonment. Nothing could have been more prejudicial than the statement of the prosecuting attorney in his argument to the jury.

Bozeman v. State, 145 So. 165.

Any statement made by the prosecuting attorney which is highly prejudicial to the defendant and not a part of the record is reversible error.

Seale v. State, 153 So. 285; Collins v. State, 56 So. 527; Sykes v. State, 42 So. 870.

Under the facts in this case this appellant was denied what the law guarantees to him a fair and impartial trial by this action of the prosecuting attorney and the statement of the court.

Articles 5 and 6 of the Amendment to the United States Constitution; Sec 26, Mississippi Constitution.

Barbour & Henry and Barbour & Barbour, all of Yazoo City, for appellant.

We think it is a case where, under the proof, the guilt of the defendant of manslaughter rather than murder appears sufficiently strong for the court to say that there is a reasonable doubt as to which of the two verdicts would have been most appropriate. In this state of the case, we have the prosecuting attorney stating positively to the jury, "You should not bring in a verdict of manslaughter or a life sentence. What is the use of sending a man to the penitentiary for life because he is already there under a life sentence, and anything else than the death penalty would not be any punishment in this case." The fair implication from this statement is that, even though the jury honestly and conscientiously, as under the facts it could do, believed the appellant guilty of manslaughter, yet a verdict of guilty of that offense would be the equivalent of an acquittal.

To add to the damage thus done, when objection and exception was taken, and the request for a mistrial and discharge of the jury was made, the court, in the presence of the jury, did not admonish the prosecutor, but rather condoned and gave his approval of the argument by saying, "In view of the fact that the jurors have two matters to decide, one, the guilt or innocence of the defendant, and the other, the nature of the punishment in case of guilt, I do not think the argument is outside the proprieties." To add further to the damage done, the prosecutor, instead of forebearing further comment, then in the language of the special bill of exceptions, "continued his argument, repeating the same statement to the jury without further correction from the court."

Would it have been competent for the state to prove that appellant had been convicted of a crime, and sentenced to the penitentiary? To have done so would have constituted reversible error, as the appellant did not testify. If he had offered himself as a witness, proof of the fact solely that he had been convicted of crime, or even murder (but not as to the punishment imposed), would, under section 1532 of the Code of 1930, have been competent to effect his credibility as a witness. Therefore, the conduct of the county attorney, in his statement to the jury, and approved as not "outside the proprieties" (or as proper) by the trial judge, gave to the jury, with sanction and approval by the judge, the damaging and incompetent facts that could not have gone to them by the sworn testimony of witnesses.

None of the exceptions put down by the decisions of this court, to the general rule that proof of separate crimes is inadmissible, such as proof thereby of scienter (King v. State, 123 Miss. 532; Slift v. State, 152 Miss. 246) or for purpose of identity (Willoughby v. State, 154 Miss. 653; Norris v. State, 154 Miss. 190; Brown v. State, 171 Miss. 157) or to prove design or system (Bryant v. State, 172 Miss. 210) exist in this case. The credibility of defendant was not disputed, and no question of knowledge was involved.

State v. Floyd, 166 Miss. 15; Slaydon v. State, 102 Miss. 101; Collins v. State, 99 Miss. 52; McLin v. State, 150 Miss. 159; Collier v. State, 106 Miss. 613; Arthur v. State, 147 Miss. 136; Doss v. State, 157 Miss. 522; Kearney v. State, 68 Miss. 233; Cotton v. State, 17 So. 372; Neal v. State, 101 Miss. 122.

This court has frequently held that any statement by the prosecutor to the jury with reference to the punishment or penalty is improper. Some of ...