McLelland v. State

• Decision Date: 06 November 1967
• Docket Number: No. 44503,44503
• Citation: 204 So.2d 158
• Parties: Carl McLELLAND v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 158

204 So.2d 158

Carl McLELLAND v. STATE of Mississippi.

No. 44503.

Supreme Court of Mississippi.

Nov. 6, 1967.

Suggestion of Error Overruled Nov. 20, 1967.

Donald W. Williamson, Meridian, for appellant.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.

BRADY, Justice:

The appellant was indicted and convicted in the Circuit Court of Lauderdale County, Mississippi, for the forgery of a check. From his conviction and sentence of five years in the state penitentiary he prosecutes this appeal.

On January 19, 1966, Sybil Alexander and Charlie Barr were visiting in appellant's home. One of them, out of appellant's presence, wrote out a check for $48.96, signing the name D. W. Carr as maker. Under the signature were the written words 'Red Hot Truck Stop,' and in the left corner appeared the words and numerals '40 hrs. work.' Appellant's twelve year old nephew testified that only he, Sybil Alexander and Charlie Barr were in the room at the time the check was made out and that appellant, upon entering the room was given the check to get it cashed. Charlie Barr, now deceased, and appellant proceeded to a grocery store operated by Joe Burnett to cash the check. Mr. Burnett testified that on January 19 he and Donald Richardson, his employee, were both operating check-out stands in the store when appellant and Charlie Barr presented the check to Richardson in payment for the items which they had selected. Richardson passed the check to Burnett who then called the bank to determine if D. W. Carr had sufficient funds on deposit to cover the check. Assured that he did, Burnett passed the check back to Richardson who in turn passed it to appellant for his endorsement. Appellant claims that he passed the check and pen to Charlie Barr but did not actually see him endorse it. Burnett and Richardson, however, testified that appellant endorsed the check with the name 'James Easley,' which Richardson did not question because he was familiar with appellant's face but not his name. Richardson also stated that appellant received the cash balance remaining after the purchase price of the groceries was deducted. Appellant denies that he received any money and asserts that Charlie Barr was the recipient. Mr. Richardson testified, as did Joe Burnett, that no one other than appellant wrote anything on the check in his presence.

Mr. D. W. Carr, proprietor of the Red Hot Truck Stop, testified that he had known appellant for approximately seven years but that appellant had never worked for him and that he never had occasion to give appellant a check for anything. He stated positively that the signature appearing on the check as maker was not his signature. Appellant's sister, brother-in-law and nephew each testified that the handwriting on the check was not that of appellant. The bank refused to honor the check and appellant was arrested on January 21, 1966, on a forgery charge. Being unable to make bond, appellant was held in the Lauderdale County jail from the date of his arrest until February 19, some twenty-eight days later, when he was taken before a justice of the peace, Briggs McArthur, for a preliminary hearing. On the date set for the preliminary hearing Constable Harry Hughes escorted appellant from the county jail across the street to the office of the justice of the peace. While en route, appellant voluntarily stated to the constable that he was in a mess and that 'they forged a check on Mr. Carr.' Appellant then solicited the constable's help in seeing that appellant was sentenced to serve time on the county road rather than being sentenced to the state penitentiary. The constable's reply was: 'I told him I didn't know anything about that.' Other necessary facts will be discussed under the assignments of error which we will consider.

Appellant asserts that the twenty-eight day delay in carrying him before a magistrate deprived him of his constitutional right to a prompt preliminary hearing with the assistance of counsel and, apparently, that he also was deprived of his right to a speedy and public trial guaranteed by Mississippi Constitution section 26. Appellant cites Sheffield v. Reece, 201 Miss. 133, 28 So.2d 745 (1947) for authority that the legislative purpose of Mississippi Code 1942 Annotated section 2473 (1956) is to prevent an arresting officer from detaining a person for an unreasonable length of time without affording him an opportunity for a hearing on the merits of the accusation against him. Appellant cites no case nor has one been found wherein an unnecessary delay, per se, has precipitated a reversal of the conviction. Appellant also relies on White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963), in which the United States Supreme Court reversed a conviction because the petitioner pleaded guilty to a capital offense at a peliminary hearing without the assistance of counsel. The Supreme Court held that in that instance the preliminary hearing was a 'critical stage' in the proceedings against the petitioner and reversed under the authority of Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961). The record in the case at bar fails to reflect anything which took place prior to or during the preliminary examination that could have been prejudicial to the appellant; and no defenses were required to be raised at that time which could not be asserted later at the trial on the merits.

The nature and purpose of the preliminary hearing in Florida are similar to those of Mississippi. In Barton v. State, 193 So.2d 618 (Fla.Ct.App.1966), the Florida Court of Appeals said: 'Such proceedings partake of the nature of an inquiry and serve only to determine whether or not probable cause exists to hold a person for trial.' Id. at 624. This appears to be the general rule with respect to the functions and significance of preliminary hearings in the various jurisdictions. See, e.g., State v. Vogel, 212 A.2d 560 (N.J.1965); Phelps v. State, 404 P.2d 687 (Okl.Cr.App.1965); Commonwealth v. Russell, 416 Pa. 546, 207 A.2d 792, 793 (Pa.1965); and State v. Jackson, 66 Wash.2d 24, 400 P.2d 774, 778 (1965).

We hold, therefore, that the delay in taking the appellant before a magistrate for a preliminary hearing did not deprive him of his right to a speedy trial under section 26 of the Mississippi Constitution or Amendment VI of the United States Constitution and that such a delay without prejudice is not sufficient to require a reversal of his conviction.

Appellant was first indicted at the May 1966 term by the Lauderdale County grand jury and an attorney was appointed to represent him at that time. Before he was brought to trial, however, the circuit judge quashed the grand jury panel and all indictments returned by it. The appellant, still unable to make bond, was bound over to the November term of the grand jury and returned to the Lauderdale County jail. Since there was no certainty that the appellant would be indicted again, his court appointed attorney was allowed the statutory compensation for his services and discharged. Upon being re-indicted in November, appellant's present counsel was appointed to represent him. This second appointment occurred on November 16, five days prior to the date appellant was tried. Appellant asserts that he was deprived of his right to counsel because his first attorney was discharged in May and because the second appointment did not take place until November. As authority for the first argument, appellant cites Winter v. State, 247 Miss. 640, 157 So.2d 127 (1963). In Winter defendant's attorney withdrew on short notice and the defendant was forced to trial without an opportunity to secure another attorney. Such is clearly not the case here. In support of his assertion that he was deprived of his right to counsel because no new attorney was appointed to represent him prior to the November term of the circuit court, appellant cites Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963); Harvey v. State, 340 F.2d 263 (5th Cir. 1965); and McKenzie v. State, 233 Miss. 216, 101 So.2d 651 (1958). Neither Gideon nor Harvey had counsel when they were tried and these cases are controlling on the proposition that an indigent defendant is entitled to court appointed counsel.

In McKenzie v. State, supra, the circuit court appointed all nine members of the Newton County Bar to defend McKenzie on a charge of murder. He was being held in the Hinds County jail and none of the nine attorneys appointed to represent him was willing to travel to Hinds County to confer with McKenzie. McKenzie was brought to the Newton County courthouse for his trial and was allowed only a brief consultation with his attorneys prior to the time trial actually began. We held in McKenzie that even though he had nine attorneys representing him, the refusal of any of them to travel to Jackson for consultation and the brief period of time which he had with his attorneys prior to the trial amounted, in effect, to a lack of counsel and therefore a denial of due process. We find nothing similar in the case at bar. Counsel representing appellant had five days in which to interview witnesses, file pleas and prepare himself for the trial of this case. The record discloses that all of this was done and the appellant was most abley represented. The record further discloses that appellant's attorney made no motion for additional time nor did he indicate a lack of time to accurately prepare a defense. We hold therefore that there is no merit in this assignment of error.

Appellant next asserts that the grand jury was illegally and unconstitutionally drawn. The facts and issues upon which this assignment of error is founded are identical to those in Davis v. State, 204 So.2d 270 (Miss. Nov. 6, 1967); Boyd v. State, 204 So.2d 165 (Miss. Nov. 6, 1967); and Northcutt v. State, 203 So.2d 795 (Miss. Oct. 30, 1967)....