Jones v. State

• Decision Date: 10 December 1923
• Docket Number: 23557
• Citation: Jones v. State, 133 Miss. 684, 98 So. 150 (Miss. 1923)
• Court: Mississippi Supreme Court
• Parties: JONES v. STATE

98 So. 150

133 Miss. 684

JONES v. STATE

No. 23557

Supreme Court of Mississippi

December 10, 1923

Division B

(Division B.) January 1, 1920

1. CRIMINAL LAW. Denial of motion for change of venue on ground of prejudice held not error.

Where a person accused of crime has made a confession, which he afterwards retracted, and both the publication and the retraction have been published in newspapers circulating in the county and the matter has been discussed considerably by the people, but where the larger number of witnesses on the motion swear that they have not prejudged the matter, and do not think it has been prejudged, and that there is no prejudice against the accused, it is not reversible error for the trial judge to overrule the motion for a change of venue especially if the voir dire examination of jurors does not disclose prejudice or prejudgment of the case.

2. CONSTITUTIONAL LAW. Criminal law. Jury. Statute permitting questions to prospective jurors directly held constitutional denial of defendant's right to examine prospective jurors directly held reversible error.

Chapter 294, Laws 1922, providing that the attorneys of litigants or litigants not represented by attorneys may propound questions direct to prospective jurors being impaneled to try their causes without being required to ask such questions through the court, does not deprive the trial judge of control of the causes, nor impair the inherent power of the court, but is a mere rule of procedure regulating but not destroying the powers of the trial court, and is constitutional. The denial of such right by the trial judge is reversible error.

3. CRIMINAL LAW. Subsequent confession made under inducement which had procured previous confession held not admissible.

Where a confession has been illegally obtained from a person accused of crime by inducement held out, or by fear brought about by the persons taking it, a subsequent confession made under the influence of the same inducements will not be admitted although the officer taking them states to the accused that he need not make a statement unless he desires, and that such statement, if made, will be used against him, and that such officer has no offer to make him. In order to make the second admissible it must clearly appear that it was not made under the same improper influence as the first. Banks v State, 93 Miss, 700, 47 So. 437, and other cases cited.

HON. C. P. LONG, Judge.

APPEAL from circuit court of Lee county, HON. C. P. LONG, Judge.

J. M. Jones was convicted of murder, and he appeals. Reversed and remanded.

Judgment reversed, and cause remanded.

Claude Clayton, for appellant.

The first assignment of error, is predicated upon the action of the learned circuit judge in overruling the motion for a change of venue. I understand that this court will take judicial cognizance of the geographical location at the village of Plantersville with reference to the city of Tupelo, which distance is disclosed by the record to be very close to the metropolis of Lee county. This was a case of much notoriety. The newspapers of the city of Tupelo published startling accounts and reports, write-ups and editorials, concerning the confession made to the Burns Detectives. The circulation of these two newspapers, to-wit, the Tupelo Journal, and the Tupelo Review reaches into many hundred homes in the county; and it is shown by the record that approximately, according to an accepted standard known to the newspaper fraternity, that five people, read each editorial. This being true, or taking this as a basis for my conclusion, it must follow that the public generally knew that appellant had confessed to his guilt in this case, regardless of whether or not, the confession was in conformity to the accepted standard therefor, and had formed an opinion that he was guilty in fact.

I respectfully submit that a careful reading of the testimony of the witnesses introduced by defendant, which include the sheriff of Lee county himself, will show that the learned circuit judge erred in failing to sustain this motion. I do not advert to the testimony of any single witness introduced upon this point, but taking it as a whole, excluding some exceptions, this testimony of the witnesses should, and ought to have convinced the mind of the trial judge that this motion should be sustained. Why, the testimony of the sheriff himself, clearly indicates this fact. He was not a partisan and I take it that this court will carefully consider his testimony along with the testimony of the other witnesses introduced upon the hearing of this motion. Therefore, I respectfully submit that appellant did not have that fair and impartial trial contemplated by the patriarchs who formulated, wrote and put into operation the Constitution of the state of Mississippi. I refer to the cases of: Tennison v. The State, 79 Miss. 708; Owens v. The State, 82 Miss. 31; Brown v. The State, 83 Miss. 645.

The rule announced in these cases, cited supra, has been the law, was the law, when this motion was presented to the learned trial judge, and according to my judgment, will be the law, so long as the great commonwealth of Mississippi maintains its identity in the United States of America.

The second assignment of error is directed to the action of the learned circuit judge in overruling appellant's motion to propound questions direct to the jurors when the jury was being empaneled to pass upon his guilt or innocence. (See Tr. Pg. 73.) This motion was invoked under a law duly enacted by the legislature of the state of Mississippi at its 1922 Session and is found in what is known as the "Sheet Acts" thereof at page 377 and is chapter 294 in said laws.

In connection with assignment number two, it may be observed from the record, that after the overruling of the motion, which is the foundation of assignment number two, a challenge for cause was interposed to every juror empaneled, all of which objections were also overruled by the learned trial judge. Therefore I submit assignments numbered two and three, and ask the court to consider them together.

This court has, as yet, not considered the above statute. This is the first time that it has been invoked. But it does not invade the inherent power of a court, especially a nisi prius. This point was distinctly, clearly and emphatically decided in the case of Fuller v. The State, 100 Miss. 811, which went up from Hinds county. In which opinion, which was delivered by one of our most distinguished and illustrious judges, it was decided and announced that an inherent power of a court was not in conflict with such a Statute.

In the case of Tennessee v. Hudson, recently decided by the supreme court of Tennessee, and which has not yet been published, according to advices from the West Publishing Co., but which will perhaps be available when this case is considered by this court, it was held that the refusal of a trial court to refuse to grant this request, was absolutely reversible error. Not having the case reported I cannot refer to it.

The fourth assignment of error has reference to the action of the learned trial judge in holding that the corpus delicti has been proved. No one knows, except God Almighty, according to this record, just how deceased came to his death. He may have been killed by a train, an automobile, could have fallen, or in many other ways. The fact that one of his pockets was missing, and the fact that part of his left trouser leg was missing, does not show a criminal agency. Suspicion is one thing, but proof is another. The confession, which was admitted under the well-established rule, is never admissible until the corpus delicti has been proven. This is elementary, therefore needs no citations.

I deem it a waste of time to refer this court to any authority on this proposition. If I am correct in this conclusion, no evidence of a confession should have been permitted to go to the jury, but a confession was permitted to go to the jury which confession, according to the ruling of the trial judge, was a reiterated confession. And in this connection I shall discuss and direct the attention of the court to assignment number six in connection with assignment number four. A casual reading of the record will disclose the fact that the court, of its own motion, excluded the confession of appellant to the sheriff, and the two Burns Detectives, when made in the Southern Hotel in Tupelo, Mississippi, on the morning of his arrest. The court had held, I respectfully submit, that the corpus delicti had been proven, and that the first confession made or alleged confession made, to the Burns Detectives and the sheriff, was not admissible; but while appellant was still in the custody of the sheriff and the two detectives, in the Southern Hotel, and after being induced to make this confession and while under the same identical conditions and surroundings, a subsequent confession made to the county attorney, in the presence of a justice of the peace, was admissible and submitted it--this first confession, which under the undisputed testimony of the witnesses for the state, as disclosed by this record, was made under a promise to appellant that "it would be better for him to admit his guilt" and that "they would see that he was not mobbed" and that immediately thereafter he was placed in an automobile and carried to another county site for safekeeping. The first confession, manifestly convinced the trial judge that it was induced by hope, or, fear, or some other inducement that absolutely rendered it incompetent. The record shows this fact, yet, under the same conditions, under the control of the sheriff, and under the supervision of the two Burns Detectives in Room No. 10 of the Southern Hotel, the...