Kitchens v. State
| Decision Date | 23 September 1974 |
| Docket Number | No. 48067,48067 |
| Parties | Jimmie KITCHENS v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Travis Buckley, Laurel, for appellant.
A. F. Summer, Atty. Gen., by John C. Underwood, Jr., Special Asst. Atty. Gen., Jackson, for appellee.
Jimmie Kitchens was indicted, tried and convicted in the Circuit Court of Jones County, Mississippi, for the crime of murder. He has appealed to this Court and now contends that the trial court committed reversible errors by granting Instruction No. 2 for the State; refusing an instruction for the defendant; failing to sustain a motion for a directed verdict; and overruling an objection to the argument of the county attorney.
This is a circumstantial evidence case. It is therefore necessary to detail, to some extent, the testimony on which the conviction is based.
Near midnight on January 20, 1973, Jones County Deputy Sheriff John M. McLaurin and Jones County Constable Bob Morgan were traveling south on I-59 in separate automobiles when they observed an automobile parked on the shoulder of the highway within the City of Laurel. The headlights were off, but the emergency lights were blinking. The officers found that the motor was running and near the front of the automobile they discovered the body of Bobby Joe Smith. The body was still warm, so they called by radio for an ambulance and notified the Laurel police. Captain Thomas Segrest and Edgar Campbell, detectives of the Laurel Police Department, came to the scene. These officers testified that they observed a pool of blood about two (2) feet wide and four (4) feet long. They discovered one leaden pellet, a ball point pen in the pool of blood, a broken button, a beer can and a small bit of soil on the pavement. From the body of the deceased at the hospital, they obtained a shirt, a pair of boots, a pair of socks, a belt, lead shots, and a sample of the deceased's blood and hair.
The officers testified in the absence of the jury that about 12:15 A.M. on January 21, 1973, two other officers, Jimmy Landrum and Vester Oral Langley of the Ellisville Police Department (a little town just south of Laurel), were patroling, and they observed a maroonish-brown Pontiac Firebird automobile drive through a stop sign at the intersection of Church Street and Paulding Road. The officers activated the blue light and siren on the patrol car. They then followed the Pontiac until it came to a stop, after being chased for about a mile. When the officers drove alongside the Pontiac, the driver (found later to be Jimmie Kitchens) opened the door to the Pontiac. One of the officers observed a shotgun in the Pontiac. The driver put his hand on the shotgun, whereupon the officer drew his gun and ordered the driver out of the Pontiac and directed him 'not to fool with the shotgun.' One of the officers went around to the other side of the Pontiac and found the passenger (later found to be a Mr. Huddleston) trying to put a hammer under the seat of the automobile. The driver, Kitchens, 'appeared to be drinking pretty heavy.' Kitchens and Huddleston were then taken to jail. The officers released Huddleston since he did not appear to be under the influence of intoxicating liquor. He claimed the Pontiac, and it was released to him. The officers were permitted to testify that Huddleston said he hardly knew Kitchens, that he met him at a bar and was taking him home. The officers kept the shotgun and the hammer.
When the jury was brought back into the courtroom, the officers repeated their testimony, except they were not permitted to identify the passenger as Bill Huddleston because they had identified him from a picture that had been shown them and said by others to be Huddleston.
The double barrel shotgun contained in the chambers two (2) three-inch magnum double-ought (00) buckshot shells.
When the Laurel police learned of the arrest of Kitchens, they went to Ellisville, and after having warned the prisoner, they questioned him. They noticed a spot on the defendant's pants leg which appeared to be blood. The prisoner surrendered his clothing, including a pair of shoes, a pair of pants, a shirt, and a pocketbook. The wallet contained a one hundred dollar ($100.00) bill and four (4) twenty dollar ($20.00) bills. They also found between twelve and fourteen dollars in bills and change in the prisoner's shirt pocket. The prisoner was then taken to the Jones County jail.
The items taken from the body of the deceased, the objects found at the scene of the crime, the clothes of the defendant, the shotgun and the hammer were sent to the Federal Bureau of Investigation for microscopic examination and analysis.
Special agents of the Federal Bureau of Investigation, McNair W. Perry and Robert Beams, both testified. They were shown to be qualified and trained in forensic science. They said that there was human blood on the prisoner's trousers, on the top of his right shoe, on his shirt, on his belt, on his socks and on his undershorts. Human blood was also found on the hammer. These agents could not idenify the blood group found on defendant. The blood from the body of the deceased was found to be Group O classification.
A qualified medical doctor who specializes in pathology examined the body of the deceased and found that the cause of death was the destruction of the larnyx, or voice box, by metallic objects obstructing the airway and bleeding into the lungs. He then discovered ten (10) entrance wounds in the shoulder of the deceased and he extracted two pellets from his body. A double-ought (00) buckshot pellet was also found on the stretcher where the body was lying.
The officers' investigation brought to light some of the activity of the deceased and defendant on the night of the homicide. It developed that the deceased, Bobby Joe Smith, met his cousin Doyle Smith around 4 P.M. January 20, 1973, in Moselle, near Laurel, Mississippi. Doyle Smith left his car and began to ride around with Bobby Joe in his car. They stopped from time to time at various taverns and finally came to the Office Lounge, which was operated by Harold Stringer, on Highway 84 in Laurel. Bobby Joe Smith exhibited two (2) one hundred dollar ($100.00) bills. However, he never spent the bills. Sometime later, estimated to be thirty (30) minutes after the two Smiths came, the accused, Jimmie Kitchens, and William J. Huddleston arrived. Sometime later G. W. Blackwell, uncle of deceased, and his wife, Rene Blackwell, Charles Dunnagin and his wife, and Jim Blackwell, another uncle of the deceased, arrived. During the time the deceased sat at the table with the accused, the accused was heard to say: 'This is the last beer I will ever buy you.' At this point, Doyle Smith told Bobby Joe Smith that he was ready to go home, but said he would stay if he were needed. Bobby Joe assured his cousin that everything was all right. Later, the deceased went outside the lounge with the proprietor, Harold Stringer, and was joined by William J. Huddleston. Mr. Stringer went back into the lounge, leaving Huddleston and Smith alone. The appellant left a few minutes before twelve o'clock.
The appellant, Jimmie Kitchens, did not testify. He introduced two witnesses who were at the table with Bobby Joe Smith in the Office Lounge, who testified that they did not hear the accused make the statement, 'This is the last beer I will ever buy you.' Mrs. J. D. Kitchens testified that she had withdrawn three hundred seventy-five dollars and ninety-nine cents ($375.99) from the bank, and that she gave the accused two (2) one hundred dollar ($100.00) bills and five (5) twenty dollar ($20.00) bills. Mr. W. D. Carmichael, president of the Merchants and Manufacturers' Bank of Ellisville, testified that the records of the bank showed that Mrs. Kitchens did in fact withdraw three hundred seventy-five dollars and ninety-nine cents ($375.99) from the bank on January 18, 1973.
The jury found the accused guilty as charged, and the trial court sentenced Jimmy D. Kitchens to serve a life term in the state penitentiary for the crime of murder.
The trial court granted the following jury Instruction No. 5 for the State of Mississippi:
'The Court instructs the jury for the State of Mississippi that malice aforethought mentioned in the indictment in this case may be presumed from the unlawful and deliberate use of a deadly weapon.'
Appellant says this instruction is an...
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