Lee v. State

• Decision Date: 12 May 1931
• Docket Number: 29141
• Citation: 134 So. 185,160 Miss. 618
• Court: Mississippi Supreme Court
• Parties: LEE v. STATE

134 So. 185

160 Miss. 618

LEE v. STATE

No. 29141

Supreme Court of Mississippi

May 12, 1931

(In Banc.)

1. CRIMINAL LAW. On motion to continue murder trial on account of public excitement, defendant must prove that exaggerated publications of accounts of homicide prevented defendant's obtaining fair trial.

On a motion to continue a murder trial because of undue public excitement by which the defendant could not presently obtain a fair and impartial trial, the proof should go further than merely introducing exaggerated publications of accounts of the homicide. The proof should go further and show what effect the publication and the facts of the killing had produced upon the public mind. The proof in such case should show that the fair trial could not be presently obtained.

2. CRIMINAL LAW. Refusal of continuance sought on ground of defendant's lack of preparation, on account of witnesses' refusal to talk to defendant's attorney held justified under evidence.

On a motion to continue a case of homicide which occurred recently before the trial term, at which the accused was tried, on account of lack of preparation for trial, where the proof of the movant tended to show that the witnesses refused to talk to the defendant's attorney who sought information from them, and that he applied to the district attorney for inspection of statements taken by the district attorney and the official court stenographer shortly after the homicide which was refused by the district attorney, and that the district attorney refused to give a written statement that witnesses should disclose their knowledge to the defendant's attorney except upon condition that defendant's attorney permit a disinterested party selected by the district attorney to be present, it is insufficient to show that, at the time of the trial, the defendant could not obtain knowledge of the facts from the witnesses, and especially so in the absence of an application to the circuit judge for a statement that the witnesses would violate no law or rule of court by telling the defendant's attorney the truth about the homicide.

3. CRIMINAL LAW. Refusal to discharge jury on account of bailiffs having attended jurors before bailiffs were sworn and on account of sheriffs having contributed to prosecution held not error, where there was no proof of misconduct.

APPEAL from circuit court of Warren county, HON. E. L. BRIEN, Judge.

W. P. Lee was convicted of homicide, and he appeals. Reversed and remanded.

Reversed and remanded.

Myron S. McNeil, of Hazelhurst, and Thames & Thames, of Vicksburg, for appellant.

The court erred in overruling the motion for a continuance in this case.

First: On account of the public excitement prevailing in the county at the time, appellant could not obtain a fair trial.

It has been held that the clear existence of an excited state of the public mind against accused should entitle him to a continuance until there was a reasonable time for the excitement to subside and the mind of the community to become tranquilized.

16 C. J. 484; Taylor v. State, 35 Ga. 632, 70 S.E. 237; Com. v. Denham, Thalh. Cr. 516 (N. Y.); Com. v. Carson, 1 Wheel Cr. 487 (Pa.); Com. v. Fletcher, 208 Pa. 137, 57 A. 346; Walker v. State, 36 N.E. 356.

Newspaper clamor on the subject is in itself a sufficient reason why the trial should not be hurried out of its regular course.

Commonwealth v. Fletcher, 208 Pa. 138; 16 C. J. 484; Brown v. State, 83 Miss. 645.

Second: Appellant did not have a reasonable opportunity to prepare his case for trial.

Motion for a continuance made at the term at which the indictment is found, though within the discretion of the court, should be granted for the purpose of a fair trial, and every facility should be afforded defendant for prosecuting his defense as fully as might be able to were the case tried at a subsequent term.

Brooks v. State, 60 S.E. 211, 3 Ga.App. 415; Haines v. State, 70 S.E. 84, 8 Ga.App. 627; Patton v. State, 72 S.E. 521, 10 Ga.App. 20; State ex rel. Tucker v. Davis, 9 Okla.Crim. 99, 44 L. R. A. (N. S.) 1083, 130 P. 964; Turner v. State of Texas, 23 A. L. R. 1378, 91 Tex.Crim. 627, 241 S.W. 162.

Accused and his counsel are entitled to a reasonable time to prepare for trial after accusation is made, and what is a reasonable time is to be determined from the facts of the case.

Moore v. State, 52 So. 971, 50 Fla. 23; Coker v. State, 89 So. 232, 82 Fla. 5; Christie v. State, 114 So. 450, 94 Fla. 469; Shows v. State, 73 So. 729, 112 Miss. 731; Samuels v. Commonwealth, 159 S.W. 575, 154 Ky. Rep. 758; Cox v. State, 138 Miss. 370.

The court erred in excluding the testimony offered on the part of the appellant, and especially that part of appellant's testimony which dealt with previous difficulties as shown from the stenographer's notes.

Proof of previous difficulties is always admissible in evidence, where anything that can fairly be construed as an act towards the commission of a dangerous assault can be shown to have been done by the person slain and even if there be a doubt as to whether such act was done, then evidence of previous difficulty should be admitted.

Hathorn v. State, 61 Miss. 749; Guice v. State, 60 Miss. 714; Holly v. State, 55 Miss. 424; Hendrick v. State, 55 Miss. 448; Spivey v. State, 58 Miss. 864; Foster v. State, 70 Miss. 755; Brown v. State, 85 Miss. 513.

The court erred in permitting the declarations or expressions "Whoopee, drunk again," made by Tucker outside of the presence and hearing of Lee, when Lanier passed Lee's premises, to go to the jury.

The court erred in not sustaining the motion made by appellant to discharge the jury, enter a mistrial and continue the case.

The motion was based upon the fact that the bailiffs, Clarence Dana, S. J. McKay and W. M. Barker, who had been waiting on the jury and attending them at their meals, were not sworn in as special bailiffs until after eight of the jurors had been finally accepted, and upon the further fact that said bailiffs were interested in the prosecution and contributed to the fees of private counsel, employed to prosecute the case, and that said bailiffs, not only attended the jury at their meals, but spent the night with them at the courthouse.

Owens v. State, 37 So. 39.

A deputy sheriff who is also the prosecutor, is disqualified to have charge of a jury pending a trial.

Cooper v. State, 79 S.E. 908, 13 Ga.App. 697; Lakey v. State (Ala.), 89 So. 605; Cook v. State, 38 So. 113; Weaver v. State (Ala.), 86 So. 179; K. C. M. & B. R. R. Co. v. Phillips, 98 Ala. 159, 13 So. 65; Johnson v. Witt, 138 Mass. 79; McCann v. State, 9 S. & M., 468; 16 C. J. 1074.

W. A. Shipman, Assistant Attorney-General, for the state.

All indictments shall be tried at the first term unless good cause be shown for a continuance.

Section 1275, Code of 1930.

The trial judge is vested with discretion in granting or overruling a motion for continuance, and it is only where the defendant is prejudiced by such ruling or injustice results from it, that this court will interfere.

Cox v. State, 138 Miss. 370.

There was no abuse of judicial discretion by the court below in refusing the application for a continuance, because, as alleged, appellant would not have a reasonable opportunity to prepare his case for trial. The record shows the homicide to have been committed on August 9, 1930; that the special venire facias was returned on the 9th day of September, 1930, exactly one full month of thirty-one days after the killing of Lanier.

Goins v. State, 155 Miss. 662.

The court below committed no error in excluding the testimony offered by the appellant. It is a maxim of the law, even in the trial of civil cases, that when death closes the mouth of one party to a controversy the law closes the other.

On the trial of a murder case testimony touching previous difficulties between the defendant and deceased and between defendant and his wife, a daughter of the deceased, is inadmissible.

Thompson v. State, 84 Miss. 758.

Details of a previous disconnected difficulty between the parties are inadmissible on the trial for a subsequent difficulty. Rich v. State, 124 Miss. 272; Hardy v. State, 143 Miss. 352; Raines v. State, 81 Miss. 489; Hughes v. State, 38 So. 33; Moriarty v. State, 62 Miss. 654; King v. State, 65 Miss. 583; Smith v. State, 75 Miss. 555; Sinclair v. State, 39 So. 529, 2 L. R. A. (N. S.) 553; Holly v. State, 55 Miss. 424; Guice v. State, 60 Miss. 723; Hawthorne v. State, 61 Miss. 753; Foster v. State, 70 Miss. 755; Hale v. State, 72 Miss. 140; Hester v. State, 144 Miss. 789; Brown v. State, 88 Miss. 166.

The fourth specification of error contained in one assignment of error alleges that the court below erred in refusing to sustain the objection made by appellant to the state introducing the expression "Whoopee, drunk again" made by Tucker outside of the presence and hearing of Lee, when Lanier passed Lee's premises to go to the jury. These expressions by Tucker were properly admitted for the reason that the evidence, taken as a whole, strongly indicates that an agreement, understanding, combination or conspiracy--call it what you will, existed between this appellant and Tucker to bring on the collision which resulted in Lanier's death.

Street v. State, 43 Miss. 1; Lamar v. State, 63 Miss. 265; King v. State, 123 Miss. 532; 12 C. J. 637; 5 R. C. L. pp. 1087-1088; Raines v. State, 81 Miss. 489; Collier v. State, 106 Miss. 613; Pickett v. State, 139 Miss. 529; Underhill Cr. Ev. (2 Ed.), secs. 490, 491.

Ethridge, J., Smith, C. J., and Cook, J., dissent.

OPINION

Ethridge, J.

Appellant W. P. Lee, on August 9, 1930, killed one Clarence Lanier, a deputy sheriff of Warren county, Mississippi. On August 13, 1930, the...