Kearney v. State, 39651

• Decision Date: 18 April 1955
• Docket Number: No. 39651,39651
• Parties: Henry Bell KEARNEY v. STATE.
• Court: Mississippi Supreme Court

Page 468

79 So.2d 468

224 Miss. 1

Henry Bell KEARNEY v. STATE.

No. 39651.

Supreme Court of Mississippi.

April 18, 1955.

Lomax B. Lamb, Jr., Marks, for appellant.

J. P. Coleman, Atty. Gen., by Wm. E. Cresswell, Asst. Atty. Gen., for appellee.

McGEHEE, Chief Justice.

In this case the appellant, Henry Bell Kearney, was convicted of assault and battery with intent to kill and murder his wife's niece, Esther Hill, and sentenced to serve a term of ten years in the state penitentiary.

The defense relied on was that the defendant's mind was so deranged at the time of the shooting that he was mentally incapable of knowing right from wrong. The sheriff had the defendant examined by a physician within an hour after the shooting, and this physician was of the opinion that the defendant was mentally deranged at that time. He was again examined by this physician and another on October 16, following the shooting on the night of October 9, 1953, and these two physicians were of the opinion that he was then in a state of paranoia, and that because of this mental derangement the defendant should be committed to the Mississippi State Insane Hospital at Whitfield, where he was sent and remained for a period of more than two months. He did not consult an attorney relative to his defense until after his return from Whitfield--in other words, the proceeding which resulted in his commitment to Whitfield was initiated by the sheriff of the county, because the sheriff 'thought it was the right thing to do.'

On this appeal it is assigned for error, first, that the trial court should have sustained the motion of the defendant, after the State had rested its case, to exclude the evidence offered by the State and to direct a verdict for the defendant; second, that the trial court was in error in refusing to grant the peremptory instruction asked for by the defendant, at the conclusion of all the evidence, directing the jury to find the defendant not guilty; third, that the trial court should have sustained the defendant's motion for a mistrial because of the comments made by the district attorney in his closing argument to the jury; and fourth, that the trial court was in error in overruling the motion of the defendant for a new trial.

When the motion which was made at the time the State rested its case in chief was overruled, the defendant proceeded with his defense by the introduction of the testimony of three physicians, and also by the testimony given by him in his own behalf in support of his defense of insanity, together with the testimony of other witnesses to the effect that he had previously borne a good reputation for peace or violence. Therefore the question of whether or not the defendant was entitled to the requested peremptory instruction is to be determined on the state of the testimony at the conclusion of all the evidence offered both by the State and the defendant. On that basis, the defendant was not entitled to a directed verdict in his favor, as will be hereinafter shown.

As to the theird assignment of error, we find no reversible error in such of the comments of the district attorney as were objected to prior to the time when the jury retired to consider its verdict. The comment of the district attorney in regard to which a motion for a mistrial was made after the jury had retired to consider its verdict, was in the following words: 'I will go further than that. Only within the last month, every doctor in Mississippi has gotten a letter that they are due to see these people before they sign these certificates; every practicing physician in the State of Mississippi has gotten a letter to that effect, so prevalent had that become.' This statement by the district attorney was not justified, first, for the reason that there was no proof that 'every doctor in Mississippi had gotten a letter that they are due to see these people before they sign these certificates' committing a patient to Whitfield; and, second, the comment was necessarily based on hearsay, since it is wholly improbable that the district attorney would have known of his own personal knowledge that such a letter had been received by every doctor in the state; and if the statement was based on hearsay, it would not have been competent for him to have so stated, even if he had been sworn as a witness. Moreover, the two doctors who made the certificates on which the defendant was committed in the instant case had testified on the trial that they had done so after a personal examination of the defendant, before causing him to be committed both for treatment and observation as to his mental status.

The district attorney had previously stated in his argument that 'Doctors all over the State of Mississippi sign these certificates without seeing the patient.' This statement was objected to by defense counsel and the trial judge stated: 'Objection overruled. I think the doctor said that.' It is to be assumed that the witness meant to concede that some doctors join in the making of the commitment certificates in reliance upon the examination made by another. This ruling of the court was made in the presence of the jury, but as we understand the record the objection to the statement of the district attorney hereinbefore first quoted--in regard to a letter having been sent out to the doctors--was raised by a motion for a mistrial after the jury had retired. It was then too late for the judge to have admonished the jury as to whether or not they should disregard such comment. Moreover, we do not think that this comment influenced the jury; they knew that the sheriff had caused the two doctors to see and examine the defendant in the instant case.

The fourth assignment of error to the effect that the court erred in overruling the motion of the defendant for a new trial relates back to the motion itself, which seems to have preserved the point that the verdict was so contrary to the evidence as to enable us to consider whether or not if the defendant was not entitled to a directed verdict in his favor, he would be entitled to a reversal of the case on the ground that the verdict is against the great weight of the evidence.

The first witness, Esther Hill, was not questioned as to the mental condition of the defendant at the time of the shooting, or at any other time. She merely testified that after he had shot and killed his wife, Catherine Kearney, he then shot her, the witness; that she was living in the home of the defendant and his wife and that she and he had never had a cross word or quarrel, and that she didn't know why he shot her.

The next witness, Curtis Reed, who was with one Sam Echols in a room through which the defendant passed immediately before the shooting, said that he was sitting down on a table and that the defendant told him 'take your leg down' off the table and that Sam Echols also told him to do so; that the witness said to the defendant, 'You don't look like you feel so good,' and that the defendant replied, 'No, I don't. I will be back in a few minutes.' Curtis Reed didn't see the shooting which occurred when the defendant went on into the front room.

The next witness, Sam Echols, testified that 'Henry Bell came out of the back room. The gun was in his front pocket and he told Curtis Reed to get off the table. Curtis said 'I ain't'. He said 'Yes, get off, that's where they serve to eat.' I spoke to Curtis and said 'Get down, Curtis, you know it ain't right to sit on the table.' * * * He (the defendant) walked out and Curtis said to me 'Something is wrong, he ain't right, for some cause.' I raised over and looked at him as he left out. He goes (in the store) around the meat block. His wife was behind the counter near the front up there with some little tickets in her hand at the adding machine. Henry Bell said 'O. K. Catherine, I been telling you this a long time,' and started shooting. Esther, she was down-- there was a step-down place--and he shot Esther.' This witness further testified that he asked: 'Henry Bell, what did you shoot you wife for? * * *', and that the defendant then said 'that sonofabitch, she won't mistreat me any more. Call the law;' that the witness then said to the defendant, 'You call them;' and that the defendant 'got the phone and called Mr. Kimbro (the sheriff);' that the defendant dialed the telephone himself, and that thereafter 'Henry Bell was just walking back and forth through his place,' meaning the place where he and his wife operated a little grocery store in the front room. The witness, Echols, was later asked on cross-examination:

'Q. He didn't look like he was normal? A. No sir, he really didn't * * *.

'Q. Did Henry Bell look to you like he might have been out of his mind that night? A. He looked strange, yes, sir, all right enough.

'Q. Do you think he could not have known what he was doing that night? A. Well, sir, I don't know, sir.'

The witness then admitted that he didn't know whether the defendant merely called the operator or dialed the sheriff's telephone number, which was shown to have consisted of four figures.

The sheriff then testified for the State that when he arrived at the scene of the shooting, he asked the defendant, 'What's the trouble, * * *'; and that the defendant just pointed to his wife whose body was lying on the floor, and 'kind of grinned.' The sheriff was asked whether he knew of any previous altercations between the defendant and his wife, and he replied: 'The defendant and his wife both had a bad reputation with my office and the police officers of the town.' He further testified that the defendant was taking a drink of whiskey when he (the sheriff) went in the place of business and that 'he looked like he was in a dazed condition' and that he was later just sitting in a chair rocking back and forth 'like the Fifth Vice-President of the First National Bank, or something.'

The sheriff was then asked: 'Why did you have him examined by Dr. Gilmore? A. I...