Lewis v. State

• Citation: 222 Miss. 140,75 So.2d 448
• Decision Date: 08 November 1954
• Docket Number: No. 39305,39305
• Parties: Mack C. LEWIS v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 448

75 So.2d 448

222 Miss. 140

Mack C. LEWIS v. STATE of Mississippi.

No. 39305.

Supreme Court of Mississippi.

Nov. 8, 1954.

William H. Stewart, Poplarville, for appellant.

J. P. Coleman, Atty. Gen., Joe T. Patterson, Asst. Atty. Gen., for appellee.

GILLESPIE, Justice.

Mack C. Lewis, the appellant, was indicted for the murder of Kenneth L. Mason, tried, convicted, and sentenced to death.

Lewis was a private in the United States Army, stationed at Fort Bliss, near El Paso, Texas. He left Fort Bliss March 31, 1953 on furlough to go to his sister's home in Buffalo, New York. On April 2, he had reached New Orleans, Louisiana, after receiving several rides. He was hitchhiking his way to Buffalo, and was carrying a .25 calibre pistol. On the morning of April 2, he was on the outskirts of New Orleans for the purpose of catching a ride. On the same day, Kenneth L. Mason, a resident of New Orleans, left that city about 11:50 a. m. to meet his brother and business associate at Biloxi, Mississippi. Mason saw Lewis thumbing for a ride and picked him up, telling Lewis that he would take him as far as Biloxi. About thirty minutes later, as Mason was traveling east on U. S. Highway 90 and after they had entered Hancock County, Mississippi, Lewis pulled the gun from his pocket and told Mason to turn off on a dirt road to the left of Highway 90. Mason turned off the highway and drove about a quarter of a mile into the swamp where Lewis and Mason got out of the car. Lewis kept the gun pointed at Mason and told him to walk across the field. When they were about 100 yards from the dirt road, and while Mason stood facing Lewis, Mason was required to throw his wallet to Lewis. Lewis put the wallet into his pocket and after looking at Mason a few seconds, decided that he would kill him. He shot Mason in the body; Mason grabbed his stomach and asked Lewis why he did it; then Lewis shot four more times; two of the shots took effect, one in the chest and one in the head. Mason was then on the ground, and made no more sounds. Lewis ran to his car, turned around, and headed back to Highway 90, and met two wood pulp trucks driven by Negroes.

Lewis then drove east in Mason's 1951 Cadillac automobile until he reached Mobile where he went to a movie, after which he picked up a girl, had some drinks, and slept with the girl. From Mobile he went to Montgomery, Atlanta, and Savannah, Georgia, where he pawned his gun. On April 5, Lewis was arrested for speeding near Petersburg, Virginia; and at the time of his arrest he had on him the driver's license of Kenneth L. Mason, was driving Mason's 1951 Cadillac automobile, in which was Mason's golf clubs, brief case, and bowling ball, each of which was later duly identified.

When Mason's brother at Biloxi became alarmed because the April 2 engagement had not been kept, he notified the authorities. The Mississippi and Louisiana authorities were alerted; and, when the Virginia authorities notified Louisiana authorities that Lewis was being held in possession of the automobile, officers Casanova and Dupre of the New Orleans Police Department were sent to Virginia. These officers arrived in Virginia on the morning of April 8, and promptly interviewed Lewis, who told the officers that a man named Bobbie had given him the Cadillac car, a set of keys and the driver's license in New Orleans, with instructions to return it to El Paso, Texas, after Lewis had used it to visit his wife. Lewis signed waiver of extradition to Louisiana; Casanova and Dupre telephoned the Louisiana authorities and secured an auto theft warrant for Lewis, and left Virginia to take Mason's car and Lewis to New Orleans. They were returning Lewis to Louisiana on the auto theft charge. On the trip from Virginia, which required about two days, Lewis was placed in local jails each of two nights. Casanova and Dupre did not question Lewis about Mason's murder on this trip. They were waiting until they were back in Louisiana to continue the investigation of the disappearance of Kenneth L. Mason. At that time they did not know that he was dead. When they had gotten back as far as the Mississippi Coast on the afternoon of April 10, Lewis asked Dupre what was his name. Dupre told him and inquired as to why he had asked, and Lewis replied: 'You gentlemen have treated me very nice and I'm going to save you a lot of trouble. I killed Mr. Mason.' Lewis then directed the officers to the road he had required Mason to take in leaving Highway 90 on April 2, and the body of Kenneth L. Mason was found at about 7:00 p. m April 10, 1953. The body was found where Lewis said he shot him.

The Louisiana authorities kept the custody of Lewis until about 9:30 p. m., April 10, 1953, when he was released to the custody of Sheriff Egloff of Hancock County, Mississippi, the county in which the murder took place. Sheriff Egloff called the district attorney, who promptly responded and typed out a written confession as given by Lewis. The confession was signed before six people and was concluded about 11 p. m. on April 10, 1953. Lewis was not taken before a magistrate until some time later.

The body of Mason was duly identified. Mason was wearing, at the time of his murder, a sport coat, a watch, a club pin, glasses, and a college ring, each of which was properly identified. The pistol used by Lewis to commit the murder was secured and a test bullet fired therefrom. Upon comparison by a firearms expert, the test bullet and one of the bullets taken from the body of the deceased were found to have been fired from the same gun.

Without detailing the evidence further, it is here noted that the guilt of Lewis is manifest.

Lewis' sole defense was insanity. The defendant's proof on this issue consisted of the testimony of one half-sister and one full sister of Lewis. The half-sister testified that his mother died when he was a baby; that witness had not seen Lewis for some years when, in 1945, he came to live with her at Marion City, California; that Lewis lived with witness and her husband for about three years, when he left to live with his sister in Buffalo, New York, and witness had not seen Lewis for about six years; that while he lived with witness, he was 'kind of mopey and simple acting', and would not go out and play like other children, but would sit around and mope; that he had some trouble with his school work; that his grandfather was off mentally, but had never been committed to an institution and lived in California where he shared an apartment with another man; that a first cousin of Lewis had fits and spells and committed suicide; that Lewis had two other cousins who were mentally deficient, one having been committed to an asylum, but the degree of kinship of these cousins was not shown; that Lewis was one of six children and his brothers and sisters were normal. Lewis' full sister, with whom he had lived from 1948 until he entered the army about two years later, lives in Buffalo, New York. She testified that Lewis, who was born in 1934, sometimes seemed like he was in a daze in that he day-dreamed, but did not day-dream like other people, and would sometimes not seem to hear when spoken to; that Lewis seemed like he was sort of silly at times. Neither of these witnesses testified that Lewis did not know right from wrong. His full sister testified that he always knew right from wrong.

On rebuttal the State offered the sheriff and deputy sheriff in whose custody Lewis was kept while awaiting trial, a period of about five months. These witnesses saw Lewis every day, and one of them several times every day, and both testified that they observed nothing abnormal. A psychiatrist employed by the United States Veterans Administration Mental Hospital at Gulfport, Mississippi, made two examinations of Lewis while he was awaiting trial. He found no evidence of insanity.

The jury found the defendant sane. This finding was in full accord with the weight of the testimony, and no issue is raised on this appeal as to such finding of fact.

The appellant's first assignment of error is the complaint that the lower court erred in giving the State the following Instruction: 'The court charges the jury for the State that mere queerness or unusual conduct is not alone any defense to crime, unless the mind of the party committing the crime, if any, is so affected, at the time of the commission thereof, that the power to distinguish between moral right and wrong is destroyed; and even if one be abnormal or queer, still, if he be able to appreciate the difference between moral right and wrong as to the particular act, if any, then the law holds him responsible for that act regardless of such above abnormality or queerness, if any.'

Appellant relies on the case of Winchester v. State, 163 Miss. 462, 142 So. 454, 456. The instruction in that case was as follows: "Further it is not every form of insanity that the law recognizes as a defense to crime, and even if one be insane but still be able to appreciate the difference between moral right and wrong as to a particular act, the law holds him responsible for that act regardless of how insane he may be."

In the Winchester case, the last part of the instruction told the jury that the defendant was to be held responsible for the act "regardless of how insane he may be." It is not difficult to see that the quoted part of that instruction is in conflict with the first part, and that it would...