Mackie v. State

• Decision Date: 06 April 1925
• Docket Number: 24874
• Citation: 103 So. 379,138 Miss. 740
• Court: Mississippi Supreme Court
• Parties: MACKIE v. STATE. [*]

103 So. 379

138 Miss. 740

MACKIE v. STATE. ^[*]

No. 24874

Supreme Court of Mississippi

April 6, 1925

(In Banc.)

1 COURTS. Organization of special term not void because, on account of exhaustion of jury box, no jury was summoned by clerk before court convened.

Organization of special term of circuit court, under Hemingway's Code Section 708, was not void because no jury was summoned by the clerk before court convened, the jury box having been exhausted, the judge having followed the statute when the court convened, by having the sheriff go out and summon a jury.

2 JURY. Sheriff not disqualified to summon because of being witness in case.

The sheriff was not disqualified to summon the jury merely because he was a witness in the case.

3. CRIMINAL LAW. In court's discretion to require defendant to consult with infant witnesses in presence of third person.

Though ordinarily defendant is entitled to consult with his witnesses alone, yet where they are children of tender years timid and fearful under the circumstances, the court in its discretion may require a third person, friendly to them, to be present durduring the conference, and though ordinarily such person should not be the opposing counsel, appointment of the district attorney as such person held not an abuse of discretion, harmful to defendant.

4. CRIMINAL LAW. On showing, no abuse of discretion in denying change of venue for prejudice.

The judge was within his discretion in overruling motion for change of venue, the overwhelming proof being that there was no such prejudgment or prejudice against defendant in the county that he could not obtain a fair and impartial trial.

5 WITNESSES. Children seven and nine years old competent.

Children seven and nine years old were properly permitted to testify, the record showing they were intelligent, understood the oath reasonably well, and the penalty for testifying falsely, and that they qualified under the law as competent to testify in the case.

6. HOMICIDE. Evidence of shooting of two others as part of same transaction, competent.

Evidence of the shooting by defendant of two others than the one for whose murder he was being prosecuted held competent, on the ground that such matters were part of the same transaction, and admissible, not only as part of the res gestae, but to show the motive and to contradict the defense of accidental homicide.

7. CRIMINAL LAW. Under facts, no error in not furnishing defendant list of special venire entire day before trial.

Claim of error in failing to furnish defendant copy of list of special venire an entire day before the trial held, without merit, the list having been furnished twenty-four hours before the trial, exactly as requested, no objection having been made at the time as to proceeding to trial, and no request having been made in writing, as required by statute.

8. WITNESSES. Matters on which defendant was cross-examined held proper for impeachment.

The matters about which defendant was cross-examined were relevant and proper for impeachment, they going to contradict the defense to which he testified.

9. CRIMINAL LAW. Instruction held, when considered with others, not to require death penalty in case of conviction.

Instruction in homicide case, that if jury believed certain facts beyond a reasonable doubt, verdict will be, "We, the jury, find the defendant guilty as charged," held not to limit jury to verdict carrying death penalty, when considered with other instructions they could fix punishment at death or life imprisonment.

HON. E. J. SIMMONS, Judge.

APPEAL from circuit court of Pike county, HON. E. J. SIMMONS, Judge.

George Mackie, alias George McKey, was convicted of murder, and he appeals. Affirmed.

Judgment affirmed.

E. B. Williams and R. S. Stewart, for appellant.

I.

CALL AND ORGANIZATION OF THE SPECIAL TERM. The court in calling the special term undertook to comply with section 2698, Code of 1906, section 2188, Hemingway's Code, in that he undertook to direct the sheriff, chancery clerk, and circuit clerk to draw from the various jury boxes, a jury to constitute the regular jury for the week beginning Monday December 29, 1924.

It will be further observed however, on page 16 of the record, that although the jury had been summoned by the sheriff and though they were in actual attendance upon the court on the opening hearing thereof, the judge undertook to adjudicate the fact that no jury had been drawn by him, because of the fact that the jury boxes, or jury lists, for the various districts, had been exhausted, and that there were no names or lists, from which a jury could or might be selected or drawn, and thereupon he undertook to order and direct the sheriff, upon a venire facias from the clerk, to summon thirty men to serve as jurors for the week, beginning December 29, 1924.

We respectfully submit that there is no law enacted by the legislature of Mississippi, nor constitutional provision in Mississippi whereby and under which a special term of court can be called, except there is a strict compliance with the law in the calling of such term. Was the special term of December 29, 1924, properly called? We submit that on the morning of December 29, 1924, there was begun and held in Magnolia, the county seat of Pike county, Mississippi no term of court, special or regular, because under the law and constitution of the state of Mississippi, there is no such thing known as a circuit court, without a complement of jurors. Under the constitution and law of the state of Mississippi, a trial by a jury is declared to be inviolate, and there can be no special court without a jury, nor can one be organized without a jury.

II.

DEFENDANT WAS DENIED THE RIGHT OF CONFERRING WITH HIS WITNESSES WHOM HE HAD SUBPOENAED AND WHO WERE IN ATTENDANCE IN COURT. The right of accused to have the privilege of consulting with his witnesses and conversing with them, both in person and by counsel, is a step in or part of the right of trial by jury, guaranteed by the Constitution of the state and the United States, and cannot be infringed upon, limited or denied, and any attempt to abridge such right, or deny same constitutes a reversible error as held in the following cases: White v. State, 52 Miss. 216; Allen v. State, 61 Miss. 627; Shaw v. State, 79 Miss. 21, 30 So. 42.

Bear in mind that the only witnesses that could be called, either by the state or the defendant that could possibly throw any light upon what happened on the date of the homicide, were these children and to require the defendant, who was trembling in the very shadow of the gallows, to quiz his witnesses in the presence of the prosecuting attorney, was worse than an outright denial, for it was an attempt to say to the defendant: "You may prepare your defense in the presence of your legal adversary, and if you confer with your witnesses, whom you have subpoenaed in your own behalf, you must give the district attorney, in advance, your defense, acquaint him with what you expect to show by the witnesses with whom you have asked a conference.

III.

MOTION FOR CHANGE OF VENUE AND EVIDENCE ADDUCED ON HEARING OF SAME. The court's attention is directed to the motion for the change of venue, and especially to the evidence offered on same, both by the state and the defendant. The motion contained several grounds, all sworn to, and that the only effort made by the witnesses offered on the part of the state in contravention of such motion, was to break down the sold allegation that, because of prejudgment in the public minds of the defendant's guilt, he could not get a fair trial, but upon the examination of such witnesses, all agreed that they could not name a person, out of the more than six thousand qualified voters in Pike county who could give the defendant a fair trial, nor could a one of them name a person who had said anything, other than condemnatory of the defendant. In all the wide range of testimony, not one witness could tell us a man who had spoken friendly or even fairly of the defendant.

The evidence showed the jury lists had been exhausted, that the sheriff was a strong partisan on the part of the state and against the defendant, and wholly disqualified to draw a venire, that the thirty names selected or summoned to constitute the jury for the week had been selected and summoned by the sheriff, even prior to the convening of the term and when he had no order from the court, right or authority from the law to select and have in attendance such persons for a jury or week's jury service, and every witness either on direct or cross-examination said that there was a general county-wide discussion of the case and a prejudgment of the same from newspaper reports, a sample of which we filed as an exhibit to the motion for a change of venue.

The affidavits to the motion, under the law, constituted a prima-facie case, and unless overcome by other evidence the course should have granted the change. Did the evidence as offered overcome such prima-facie case? We submit not. See Tennison v. State, 79 Miss. 708; Brown v. State, 83 Miss. 645, 36 So. 73.

The application for a change of venue should not be denied, simply because certain witnesses may have said that they believed that twelve impartial jurors might be found, and that because of the general reputation of the citizenship of the county a fair trial could be had. See Anderson v. State, 97 Miss. 656, 16 So. 65.

IV.

SPECIAL VENIRE, HOW DRAWN, RETURN DAY OF SAME, SERVICE OF RETURN ON COUNSEL FOR DEFENDANT. Upon the return date of the venire the defendant exhibited his motion to quash same and for another venire urging in said motion that same had not been drawn as the law directed that the sheriff was disqualified to select...