Ladner v. State, 44203

• Decision Date: 27 March 1967
• Docket Number: No. 44203,44203
• Parties: Douglas LADNER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 257

197 So.2d 257

Douglas LADNER v. STATE of Mississippi.

No. 44203.

Supreme Court of Mississippi.

March 27, 1967.

Oscar B. Ladner, Gulfport, for appellant.

Joe T. Patterson, Atty. Gen., by R. Hugo Newcomb, Sr., Asst. Atty. Gen., Jackson, for appellee.

SMITH, Justice:

Douglas Ladner was indicted for the murder of his wife, Patricia. He was tried and convicted in the Circuit Court of Pearl River County, and, the jury having certified that it was unable to agree upon his punishment, was sentenced to serve a life term in the penitentiary. It is from that conviction and sentence that this appeal has been prosecuted.

This is the second time the case has appeared here. The first appeal was from a judgment refusing to grant relief on an application for a writ of habeas corpus. See Ladner v. Walker, 184 So.2d 401 (Miss.1966). The facts set out in the original opinion are substantially the same as now appear in the record. The few exceptions will be noted in the statement which follows.

After the indictment was returned by the grand jury, the defendant moved to dismiss the indictment upon the ground that the grand jurors who returned it were drawn from a list of names which contained no resident freeholders, and that the trial court had not complied with the statute so that freeholders could be summoned as grand jurors as provided by Mississippi Code sections 1762, 1762-01, 1762-02, and 1762-03 (Supp.1964). It was further contended that the grand jury was not drawn proportionately from the respective supervisors' districts of the county, as required by Mississippi Code section 1766 (Supp.1964).

A full hearing was had upon the motion. It was shown that the members of the Board of Supervisors of Pearl River County had entered an order upon their minutes containing the following recitation:

'The Board having determined the proportion of qualified persons to be selected from each respective district did then, using said registration books of said county and state, and the land assessment roll of said county, and the above mentioned certificate of the Circuit Clerk of said county and state, select and list the following named qualified persons of good intelligence, sound judgment and fair characte(d) from each of the respective supervisors' districts and from all of said supervisors' districts as follows, to-wit: * * *'

There followed a list of the names of the persons selected.

The testimony shows, however, that there was one additional name added later, not drawn from the box. The thrust of defendant's argument is that the jury was drawn from a list made up at the April meeting of the Board of Supervisors for duty in April, and it is contended that this method of selecting the jury was irregular and improper, for the reason that the Board of Supervisors' districts were not constituted on the basis of population as required by Mississippi Code section 2870 (1956). The testimony also shows that an order of the circuit judge had been entered providing that the jury list should be taken from a list containing the names of freeholders, as well as qualified electors, as provided by Section 1762-01, supra.

Section 1766, supra, requires the Board of Supervisors, at its April meeting, to 'cause the jury box to be emptied of all names therein, and the same to be refilled from the jury list as made by them at said meeting. If the jury box shall, at any time, be so exhausted of names as that a jury cannot be drawn as provided by law, then the board of supervisors may at any regular meeting make a new list of jurors in the manner herein provided.'

Mississippi Code section 1774 (1956) provides that the judge may draw the names of persons to be summoned as grand and petit jurors in vacation. The record is not clear as to when the list was drawn, but it appears that the list of jurors drawn for duty at the April 1966 term of the circuit court was drawn from the jury list provided by the board of supervisors for 1965. In any case, however, the jury laws of this State are merely directory, and a jury list drawn informally or in an irregular manner is legal 'after it shall have been impaneled and sworn.' Miss.Code § 1798 (1956); Ferguson v. State, 107 Miss. 559, 65 So. 584 (1914). Moreover, the fact that a Board of Supervisors fails to select the jury from the districts proportionately does not authorize the quashing of the venire, nor the indictment. Atkinson v. State, 137 Miss. 42, 101 So. 490 (1924). The jury box may, however, be quashed within the sound discretion of the trial judge. Quick v. State, 132 Miss. 794, 96 So. 737 (1923).

There was also filed a motion to dismiss the indictment against the defendant because no women were summoned to serve upon the grand jury. This is not argued on appeal, apparently because this Court has settled this question, since the motion was filed, in the case of State v. Hall, 187 So.2d 861 (Miss.1966).

The appellant assigns as error that he was not permitted to question a member of the Board of Supervisors with reference to whether or not names submitted by the Board included freeholders of the county. We are of the opinion that the action of the trial court was correct because this assisngment is based upon an alleged failure of the Board of Supervisors to place the names of persons in the jury box who were not qualified electors but who were freeholders as permitted by Section 1762-01, supra.

In Black v. State, 187 So.2d 815, 817 (Miss.1966), we pointed out that:

'Thus, in an effort to obtain qualified Negroes for jury service, without regard as to whether or not they were qualified electors, the Mississippi Legislature extended the duty to serve on juries, not only to electors, but also to persons who are resident freeholders.'

In order for the defendant to complain that he has been discriminated against because persons of an ethnic race group or class have not been included on the jury list, it must appear that the defendant is a member of the class discriminated against. 24 Am.Jur. Grand Jury section 28 at 852 (1939).

It does not appear from the record that appellant was prejudiced by any of these matters assigned relating to the preparation of the jury lists or the drawing of the jury.

At about 6:00 o'clock, on the evening of Sunday, November 7, 1965, John Howard, Deputy Sheriff, received a call from Cecil Ladner, appellant's brother. Cecil Ladner told Howard, 'John, get to Douglas' (appellant's) house as fact as you can, something bad has happened.' Howard called the sheriff, and then proceeded to appellant's home where he found appellant on the porch. When Howard camp up, appellant began repeating: 'I didn't do it.' He was met by Dr. Powell, Mrs. Landner's doctor who greeted him with the words: 'She is dead.' John Howard and Dr. Powell went into the bedroom where they found Mrs. Ladner's body lying on the bed.

Howard returned to the porch and asked appellant if anybody else had been there that day, and appellant replied that no one had been there except his wife and himself. Howard noticed that appellant's right hand was badly swollen and asked Dr. Powell to examine it. Dr. Powell found it badly swollen and said that it was one and a half times thicker than the left.

Appellant did not testify.

Howard said that appellant kept telling him that he 'didn't do it,' that Mrs. Ladner kept falling out of bed and he kept putting her back in bed. Appellant appeared to have been drinking heavily and smelled of alcohol. He asked Howard to have the doctor give him a shot, and he appeared upset.

Both the sheriff and his deputy testified that Mrs. Ladner's face and eyes were blackened, her nose appeared to be broken, and her mouth had been 'busted open.' She appeared to have sustained a very heavy blow upon the left side of her head, where there had been bleeding, and her arms, body and legs, down to her ankles, were covered with bruises.

They found the inside of the house a shambles-in the kitchen the stove, tables, pots, pans, and dishes had all been knocked about. There was blood in the bathroom, and in the dirty clothes receptacle there were wet and bloody rags, and there were also bloody rags on the lavatory. In the bedroom, where the body lay, the bed was broken down and rested on the floor. There were feathers, apparently from a torn pillow case, strown about the house. The same kind of feathers were found adhering to appellant's shoes. In the corner of the room where the body was found there also were wet bloody rags and part of a pillow case which was also wet and bloody, indicating that an effort had been made to clean up the blood.

This description of the scene of the homicide by the sheriff, his deputy, and Dr. Powell, and of the condition of decedent's body, is supported by numerous photographs in the record. These witnesses also agreed as to appellant's swollen right hand.

On Wednesday, preceding this Sunday, Gordon Ladner (son of appellant and Patricia Ladner, the deceased) had made an affidavit against his father, the appellant, charging that he had willfully and unlawfully disturbed the peace and threatened to do him bodily harm, and to kill him.

On that occasion, the sheriff had gone to appellant's home where he found appellant and Mrs. Ladner. Mrs. Ladner's clothes were torn and in disarray, her face and eyes had been blackened, her mouth slit, and she appeared to be in pain. In the presence of appellant, the sheriff asked Mrs. Lander what had happened to her and she stated that appellant had beaten her. He did not deny it.

The next morning, Thursday, Mrs. Ladner, the appellant, and their son, Gordon Ladner, came to the courthouse for the purpose of having the charges against appellant dismissed. The deceased, appellant, and their son sat around a table and had a talk with the sheriff, during the course of which deceased asked the sheriff to talk to appellant and to try to get him to 'straighten out.' She also asked appellant not to hurt their son,...