Holloway v. State

• Court: Mississippi Supreme Court
• Writing for the Court: McGehee, J.
• Citation: Holloway v. State, 187 Miss. 238, 192 So. 450 (Miss. 1939)
• Decision Date: 11 December 1939
• Docket Number: 33657
• Parties: HOLLOWAY v. STATE

192 So. 450

187 Miss. 238

HOLLOWAY v. STATE

No. 33657

Supreme Court of Mississippi

December 11, 1939

Suggestion Of Error Overruled January 8, 1940.

APPEAL from the circuit court of Jefferson Davis county HON. J. C SHIVERS, Judge.

Cleveland Holloway was convicted of murder, and he appeals. Affirmed.

Affirmed.

Ovie L Berry, of Jackson, and Martin & Farr, of Prentiss, for appellant.

We most earnestly submit that the case must be reversed on the ground that this illegal confession was allowed to go to the jury, if for no other reason. It is clearly shown and not at all disputed that Judge Kurley, the Justice of the Peace before whom defendant was to be tried that very day told the defendant that if he would plead guilty to the charge, it might go lighter with him. Our court has repeatedly held, from its earliest history, that a confession made under these circumstances is not freely and voluntarily given and it is fatal error to allow it to go to the jury.

Harvey v. State, 20 So. 837; Warren v. State, 164 So. 234, 174 Miss. 63; Johnson v. State, 89 Miss. 773; Clash v. State, 146 Miss. 811, 112 So. 370; Peter v. State, 4 S. & M. 31, 1 Mor. St. Cas. 249; Matthews v. State, 102 Miss. 549, 59 So. 842; Hamilton v. State, 77 Miss. 675; Williams v. State, 72 Miss. 117; State v. Smith, 72 Miss. 420; Ford v. State, 75 Miss. 101; Simon v. State, 37 Miss. 288.

If a confession of crime be made upon the faith of a promise by the injured party not to prosecute therefor, evidence of such confession is not admissible.

Draughn v. State, 76 Miss. 574; Fisher v. State, 145 Miss. 116, 110 So. 361; White v. State, 129 Miss. 182, 91 So. 903, 24 A.L.R. 699; Jones v. State, 133 Miss. 684.

The prisoner has the constitutional right to remain silent as to his guilt; and hence, if a confession be extorted or induced by violence or by hope of reward or immunity from punishment, it cannot be given in evidence to the jury.

Johnson v. State, 107 Miss. 196, 65 So. 218; Jordan v. State, 32 Miss. 382; Ellis v. State, 65 Miss. 44; Whip v. State, 143 Miss. 757, 109 So. 697; Cady v. State, 44 Miss. 333; White v. State, 129 Miss. 182, 91 So. 903; Fletcher v. State, 159 Miss. 41, 131 So. 251; Simmons v. State, 61 Miss. 255; Whitley v. State, 78 Miss. 255; Peter v. State, 4 S. & M. 31.

We call the court's attention to the fact that no warning whatsoever was given this ignorant negro as to his rights under the Constitution of Mississippi, which protects the most humble and the most ignorant from self-incrimination.

16 C. J. 724; Van Buren v. State, 24 Miss. (2 Cush.) 512, 1 Morris St. Cas. 604; Peter v. State, 4 S. & M. 31; Comings v. State, 163 Miss. 442; 142 So. 19.

No evidence that we could have submitted would have taken that confession out of the minds of the jurors, but with it out, there is no telling what a jury would or might have done.

Lynes v. State, 36 Miss. 617; Jones v. State, 58 Miss. 349; Peden v. State, 61 Miss. 267; Simon v. State, 36 Miss. 636; Donahue v. State, 142 Miss. 335, 107 So. 373, 374; Dick v. State, 30 Miss. 598.

We filed a demurrer to the indictment, challenging its sufficiency on several grounds and specifically that it did not respond to the "demand the cause and accusation" under Sec. 26 of the Constitution. Strange to say, the court overruled the demurrer and allowed an amendment to the indictment, which in itself, it seems to us, confessed the demurrer.

The court will not allow the state to stand on any presumption and it must affirmatively appear from the record that both the motion to amend the indictment and the amendment are on the minutes.

Newcomb v. State, 37 Miss. 383; Anthony v. State, 13 S. & M. (21 Miss.) 263, 1 Mor. St. Cs. 467; Ike v. State, 23 Miss. (1 Cush.) 525; Riggs v. State, 26 Miss. (4 Cush.) 51; Scott v. State, 31 Miss. 473; Lewis v. State, 49 Miss. 354; Sec. 26, Miss. Constitution.

We submit most respectfully that the lower court was in error in overruling our motion to quash the indictment.

Sec. 264 of the Constitution; Secs. 2040 and 2060, Code of 1930; Walton v. State, 147 Miss. 851, 112 So. 790.

The judgment of the court does not show that defendant was placed at the bar to receive sentence and does not show that he was asked whether or not he had anything to say why sentence should not be pronounced; and the verdict of the jury, shown in the judgment, is contrary to the law as provided in such cases.

James v. State, 2 Morris St. Cas. 1751; Sec. 3403, Code of 1930.

Russell Wright, Assistant Attorney-General, for the State.

The only rule as to a confession must be that it is voluntary. If so, it is admissible, and a failure to warn that the statement might be used against him does not render the admission or confession inadmissible.

Watson v. State, 166 Miss. 194, 146 So. 122; Thomas v. State (Miss.), 124 So. 766; Jackson v. State (Miss.), 140 So. 683.

Even if the admission of the confession was error, under this record the competent evidence would clearly disclose the guilt of the appellant and would completely exclude every other reasonable hypothesis that the court should not reverse.

Comings v. State, 163 Miss. 442, 142 So. 19; House v. State, 121 Miss. 436, 83 So. 611; Dick v. State, 30 Miss. 593.

As to whether the confession was voluntary, the question is for the trial judge; and the Supreme Court will not reverse ruling of trial judge as to admissibility of confession as voluntary unless it is contrary to the evidence.

Brown v. State, 142 Miss. 335, 107 So. 373.

As to demurrer to the indictment, where defect is purely a clerical omission, it is treated as a clerical defect within the meaning of the statute. The appellant was not prejudiced in the preparation of his defense or in the least doubt as to the crime he was charged with having committed.

Keys v. State, 110 Miss. 433, 70 So. 457; Smith v. State, 132 Miss. 521, 97 So. 4.

If no objection be made in the court below to proceeding with the trial until the amendment entered on the minutes, it cannot be raised in the Supreme Court for the first time.

Richberger v. State, 90 Miss. 806, 44 So. 772; Snipes v. State, 144 Miss. 206, 109 So. 722; Tillman v. State, 158 Miss. 802, 131 So. 265.

Argued orally by G. L. Martin, and Ovie L. Berry, for appellant, and by Russell Wright, for appellee.

OPINION

McGehee, J.

The appeal here is from a death sentence imposed on the appellant for the murder of Fred Magee in Jefferson Davis county. On the night of the killing the deceased and several other negroes were in a cafe, operated by one, Willie Wheeler, who had been furnishing music and other entertainment for his customers until nearly three o'clock in the morning, when the killing occurred. Some fifteen or twenty minutes prior thereto the appellant left the small cafe building after having had some words with Fred Magee and Henry Thompson in regard to twenty-five cents which he wanted to get from Magee. Upon his return he pushed open the front door, made some exclamation, and fired toward the rear of the cafe room, in the direction of the place where Magee and Thompson were standing. At the time Magee was engaged in eating fish, and neither he nor any of the other occupants of the room were threatening the appellant, or attempting to harm him.

The gun used was a double-barreled shotgun, and when the first shot was fired several of the shot hit the hand of one of the bystanders, near Magee and Thompson. Thereupon the deceased and most of the other negroes rushed out of a side door. In the meantime the owner of the cafe had closed the door immediately upon the firing of the first shot, and that left the appellant on the outside, in front of the building. Almost immediately another shot was heard outside, near the corner, and in plain view of the side door, out of which the deceased and others had passed, due to the fact that there was an electric light overhead in the cafe room, which cast its rays through the doors when opened.

After the second shot the deceased was found lying on the ground, dying from a gunshot wound in his side. It was not shown which of the two shots struck and killed him; but no one other than the appellant was shown to have been on the outside of the building, at or near the place from which the second shot was fired; and he was recognized by nearly all the occupants of the building as being the person who fired the first shot. They saw him standing in the range of the electric light, the rays of which were cast through the door as he pushed it open. Most of the witnesses had known the appellant for years, and it is not reasonable to suppose that they were mistaken as to his identity. Moreover, there is no conflict in the testimony as to who fired the first shot, and we are of the opinion that the jury was amply warranted in believing beyond a reasonable doubt that the appellant also fired the second shot. Immediately he was heard to say, "I will learn them all who to fool with." The testimony identifying him was further strengthened by the fact that the shotgun, which he returned to his brother-in-law a few minutes after the shooting, is alleged to have contained two empty shells.

A search for the appellant was soon begun, and two weeks later he was located in the northern part of the state. After his arrest he was placed in jail in Hattiesburg, from which place he was later taken to the county in which the crime was committed, to be given a preliminary trial.

It appears that the local justice of the peace before whom the trial was to be had, accompanied the sheriff to bring the appellant from Hattiesburg. En route to the trial, according to the testimony of the justice of the peace, the appellant said to him: "We have always been friends, and I want you to tell me what...