Keeton v. State

• Decision Date: 19 May 1923
• Docket Number: 23075
• Citation: 96 So. 179,132 Miss. 732
• Court: Mississippi Supreme Court
• Parties: KEETON v. STATE

96 So. 179

132 Miss. 732

KEETON v. STATE

No. 23075

Supreme Court of Mississippi

May 19, 1923

Division A

APPEAL from circuit court of Jones county, HON. R. S. HALL, Judge.

Earl Keeton was convicted of rape, and he appeals. Reversed and remanded.

Reversed and remanded.

Marion W. Reily, for appellant.

The appellant made a motion for a change of venue and supported it by two affidavits as required by the statute. Thereupon the state attempted to introduce testimony to overcome prima-facie case made by the motion and affidavits. The state introduced fourteen witnesses. Six of them were officers of the county. Nine of them had attended court when Holifield or Davis was tried. Practically every one of them admitted that they had heard that a mob had gathered about the jail for two nights after the occurrence for the purpose of hanging the appellant and those jointly indicted with him. Practically every one had heard that these men had been slipped out of the county to avoid mob violence. Each one of them testified that he thought a fair trial could be obtained in Jones county basing his statements upon his confidence in the citizenship of the county.

The appellant introduced sixteen witnesses after the state had offered testimony upon the motion for a change of venue.

When a man is guilty of an offense, except in rare instance, he does not want his case transferred from the county of his residence. He wants to be tried at home where he may succeed in getting some advantage from the presence of his family and friends. It frequently occurs that the very enormity of the crime causes us to jump to the conclusion that he who is charged with it is guilty of it. The next step is to decide in our own minds that he who is accused should be punished. Then we remember how frequently the guilty go unpunished and if we are not attorneys we decide that the fact that the guilty go unpunished is due to the technicalities of the law--such as demurrers and changes of venue and the like. Being in this mental attitude, as good citizens, we go forth to exercise our influence to see that a speedy trial is had and the guilty punished. When an application for a change of venue is made we imagine that the accused is fleeing from a trial; that he is guilty and we know it and that the accused knows it; we say to ourselves he can get as fair a trial here as he deserves; we want him tried here where we can see that he does not escape. Then it is, if the court please, that men who would suffer their right arms to be amputated rather than swear falsely about what actually occurred in their presence, will take the stand and swear that a man can get a fair trial just because they think that he ought to be convicted. They fail to distinguish between their judgment and their wishes. The more prejudice that exists against a man and the more he is believed to be guilty, the more difficult it is to find some one who will swear that he is entitled to a change of venue. Hundreds of people gathered at the jail the night after the alleged offense and surely had not the county attorney and Mr. Pack and others made speeches and promised speedy trial, the jail would have been stormed. Twenty guards were employed to guard the jail. Men were there from every section of the county. The following night another mob assembled and notwithstanding the pleadings of the jailor, searched the jail. Almost every witness who testified upon the motion testified to threats to hang the accused. Some said that if the court did not hang them that the crowd would. This is a peculiar case in that the trial of Holifield was in fact a trial of the appellant as was the trial of Davis. The witnesses were the same; the facts the same;--the result the same. How could the trial judge ever hope to obtain a fair jury to try Keeton when he knew that the appellant was being tried after Holifield and Davis had been tried for the same offense? This court has frequently held that the fact that the testimony is to the effect that a fair jury can be obtained but that this testimony is given because of the confidence of the witness in the citizenship of the county, will not warrant the court in denying a motion for a change of venue. Anderson v. State, 92 Miss. 656, 46 So. 65; Eddins v. State, 70 So. 898; 110 Miss. 708; Brown v. State, 36 So. 73; Tennison v State, 79 Miss. 708; Magneice v. State, 60 So 8, 103 Miss. 30. I submit in all confidence that when this case is viewed as a whole, this court cannot but understand that appellant did not receive a fair trial, because of the prejudice in the county against him.

H. C Holden, Assistant Attorney-General, for the State.

The appellant contends that the court erred in refusing to grant a change of venue. In Cheatham's case, 67 Miss. 339, 7 So. 205, the rule is announced: "If the trial as surveyed from its conclusion instead of its commencement," shows that it was "entirely free from any bias against appellant," a motion for a change of venue was properly overruled. In Tennison v State, 79 Miss. 708, 31 So. 421, this court held that there is no well-defined rule of law applicable to the question of venue, but that each particular case must be decided upon its own peculiar facts and circumstances. In Bond v. State, 91 So. 461, this court followed and adopted the two prior decisions just mentioned. The passion and indignation of the people is swift to arise when some detestable crime is committed or reported, but it is just as quick to subside once the alleged perpetrator of the crime is removed to safety and it is realized that he will be given a speedy trial. Under such conditions mobs fade away like mists before the morning sun. Cool reason is restored by the passage of time and the return to normal functioning of temporarily disarranged minds. This was true in Laurel. The three accused men were eventually tried by a fair and impartial jury in an orderly and dignified manner. The regular impaneling of the jury shows that twelve fair and impartial jurors were obtained. The defendant succeeded in producing twenty witnesses who testified in his behalf, several of whom were residents of Laurel or vicinity. The verdict of the jury, imposing a life sentence, shows conclusively that if there was any widespread bias or prejudice against the defendant it had disappeared when the trial took place, otherwise the verdict would have been guilty as charged and a consequent sentence of death. Viewing the record as a whole, it is clear that...