Irving v. State

• Decision Date: 17 November 1969
• Docket Number: No. 45665,45665
• Citation: 228 So.2d 266
• Parties: Gerald Henry IRVING, Jr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 266

228 So.2d 266

Gerald Henry IRVING, Jr. v. STATE of Mississippi.

No. 45665.

Supreme Court of Mississippi.

Nov. 17, 1969.

Rehearing Denied Dec. 8, 1969.

Ebb J. Ford, Jr., Gulfport, for appellant.

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

BRADY, Justice.

This is the second time this cause has come before us for attention. The present case is an appeal from the Circuit Court of Harrison County, Mississippi, where the defendant was tried on May 15, 1969, on the qustion of punishment only for the murder of Mrs. Hazle K. Nixon and found guilty by the jury. Appellant was sentenced to be put to death on June 20, 1969, unless the sentence was suspended by appeal. The facts as reflected by the evidence in this trial, on the question of punishment, are substantially identical with the facts which were presented by the State of Mississippi in the case of Irving v. State, 192 So.2d 686 (Miss.1966), and therefore will not be reviewed herein. The facts in that case conclusively show the appellant to have been found guilty of an atrocious murder. The conviction thereof was affirmed by the fifth Circuit Court of Appeals. Irving v. Breazeale, 400 F.2d 231 (5th Cir.1968). It is essential that the procedural steps taken in these causes be reviewed.

The original indictment of the appellant for murder was on December 12, 1966. This Court affirmed the conviction in Irving v. State, supra. Following this affirmance a petition for writ of error coram nobis was filed in this Court and was denied on January 18, 1967. Irving v. State, 194 So.2d 239 (Miss.1967). Subsequent thereto appellant filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Mississippi asserting that his conviction was obtained in violation of his fifth, sixth and fourteenth amendment rights of the United States Constitution. The United States District Court denied the relief sought by appellant's petition on March 13, 1967, in Irving v. Breazeale, 265 F.Supp. 116 (S.D.Miss.1967), and the appellant perfected an appeal to the United States Court of Appeals for the Fifth Circuit, which court on August 27, 1968, rendered its opinion affirming the judgment of the United States District Court's denial of the petition for relief as it relates to his conviction, but remanded the case to the United States District Court with directions for determination of the question of whether or not the principles had been complied with in the selection of the jury proceedings in capital cases as outlined in Witherspoon v. Illinois, 391 U.S.. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

On October 4, 1968, the United States District Court for the Southern District of Mississippi, in compliance with the mandate of the Fifth Circuit Court of Appeals, entered an order styled 'Order Remanding to State Court' providing as follows:

By virtue of and pursuant to and in accordance with the mandate of the United States Court of Appeals for the Fifth Circuit in this case, pursuant to its opinion in this case appearing on docket as No. 24,606 dated August 27, 1968, it is ordered that the Circuit Court of Harrison County, Mississippi, and any other court of appellate jurisdiction be, and such state courts are hereby reinvested with full power and authority to reexamine its death penalty sentence in the case of State of Mississippi v. Gerald Henry Irving, Jr., (also designated as Gerald Henry Irving) on the docket of said court, as affirmed by the Mississippi State Supreme Court in Irving v. State, 192 So.2d 686, for its determination on the facts as presented on the question as to the validity of the death sentence in that case on the principle announced by the Supreme Court of the United States in William C. Witherspoon v. State of Illinois (391 U.S. 510), 88 S.Ct. 1770 (20 L.Ed.2d 776). Jurisdiction is vested in any proper state court having jurisdiction where Gerald Henry Irving, Jr., may immediately file and diligently prosecute to prompt conclusion proper proceedings for a determination by such state court as to the validity of the death sentence in this connection under the facts and circumstances at the original trial of the case in the state court on the limited question indicated.

The record discloses that on October 11, 1968, the appellant filed a petition for leave to file a petition for writ of error coram nobis in this Court, and on January 15, 1969, the petition was sustained and order entered granting the filing of the petition for writ of error coram nobis.

On May 5, 1969, the Circuit Court of Harrison County Mississippi, held an evidentiary hearing on the petition for writ of error coram nobis and in accordance with the guidelines and rules of law set forth in Witherspoon v. Illinois, supra, the trial court found from the evidence that at least four jurors had been excused from the venire drawn for the original trial because they had expressed conscientious scruples against the imposition of the death penalty. The record discloses that their excusal was not in accordance with the rules established in the case of Witherspoon v. Illinois, supra, and the circuit court properly entered an order granting the appellant a new trial restricted to the question of penalty only under the mandate of the United States Fifth Circuit Court of Appeals.

On May 14, 1969, the new trial commenced and the State of Mississippi, after a jury had been meticulously selected under and in accordance with the rules of law and guidelines as set forth in Witherspoon v. Illinois, supra, presented its evidence. The evidence to be considered solely by the jury in determining the punishment of appellant was substantially identical with the evidence which was presented by the State of Mississippi in the original case of Irving v. State, 192 So.2d 686 (Miss.1966), and therefore will not be reviewed here except as to the introduction of photographs. The appellant offered no evidence in his own behalf. The jury was properly instructed that the appellant had been previously adjudged to be guilty of the murder of Mrs. Hazle K. Nixon and that their sole duty was to determine from the evidence what punishment the appellant should suffer for his crime.

On May 15, 1969, the jury returned the following verdict: 'We, the jury, fix the defendant's punishment at death.' On that date a final judgment was entered sentencing the appellant to be executed unless the judgment is appealed. Appellant filed a motion for a new trial on May 19, 1969, which was overruled. From that judgment and sentence the appellant appeals.

Although the appellant failed to comply with the requirements of Rules 6 and 7 of this Court in that he did not expressly designated and argue in his brief the assignments of error which he feels require a reversal of this cause, we will nevertheless consider in this opinion all errors which we feel merit consideration, since the death penalty is involved.

The first error urged by appellant is that the imposition of the death penalty is in conflict with the rule of law announced in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 139 (1968), and may be in conflict with the decision to be handed down by the United States Supreme Court in Maxwell v. Bishop, an Arkansas case which has been pending for some time before the United States Supreme Court and reported in 236 Ark. 694, 370 S.W.2d 113 (1963); D.C., 257 F.Supp. 710 (1966); 8 Cir., 398 F.2d 138 (1968).

Under the Maxwell v. Bishop case, appellant inquires:

1. 'Did Arkansas' practice of permitting the trial jury absolute discretion, uncontrolled by standards or direction of any kind, to impose the death penalty, violate due process?'

2. 'Did Arkansas' single verdict procedure, which required the jury to determine both guilt and punishment simultaneously and further require a defendant to choose between presenting mitigating evidence on the punishment issue or maintain his privilege against self-incrimination on the guilt issue violate the Fifth and Fourteenth Amendments of the United States Constitution?'

Insofar as the effect of the rule of law announced in United States v. Jackson, supra, is concerned, we note that the appellant failed to designate which particular rule of law or the application thereof is concerned in the case at bar. Appellant states:

As to the imposition of the death penalty, appellant does call to the attention of this Honorable Court the recent decision of the United States Supreme Court, being the case of United States versus Jackson, decided April 8, 1968, and appearing at 88 S.Ct. page 1209, and also reported at 390 United States Report (sic) page 570. That case involved the applicability of the death penalty provision of the federal kidnapping act (sic). The Opinion (sic) is by Mr. Justice Stewart; and pertinent parts are as follows:

The appellant quotes extensively from the opinion.

The rule of law as set forth in United States v. Jackson, supra, has no application to the case at bar. The Federal Kidnapping Statute as interpreted and discussed in United States v. Jackson, supra, was distinguished in application from Mississippi Codd 1942 Annotated section 2217 (1956) in the case of King v. Cook, 211 So.2d 517 (Miss.1968).

Mississippi Code 1942 Annotated section 2217 (1956) provides as follows:

Every person who shall be convicted of murder shall suffer death, unless the jury rendering the verdict shall fix the punishment at imprisonment in the penitentiary for the life of the convict; or unless the jury shall certify its disagreement as to the punishment as provided by section 1293 (Code of 1930; § 2536, Code of 1942) in which case the court shall fix the punishment at imprisonment for life.

This Court, speaking through Chief Justice Ethridge, distinguished the rule of law in the Federal Kidnapping Act from our Mississippi Code 1942 Annotated section 2217 (1956) in the case of King v. Cook, supr...