Owen v. State

• Decision Date: 14 December 1936
• Docket Number: 32379
• Citation: 171 So. 345,177 Miss. 488
• Court: Mississippi Supreme Court
• Parties: OWEN et al v. STATE

171 So. 345

177 Miss. 488

OWEN et al v. STATE

No. 32379

Supreme Court of Mississippi

December 14, 1936

Suggestion of Error Overruled, January 11, 1937.

(In Banc.)

1. Jury. In prosecution of two negro, defendants for murder that trial court on preliminary examination asked proposed juror if he would render a "while man's verdict" held not reversible error in view of full explanation and examination of jurors in which they were required to testify that they would give a negro the same fair, just, and impartial consideration that would he accorded any other person.

One of the definitions of a "white man" is. used colloquially, a trustworthy, fair-dealing person.

2. CRIMINAL LAW.

Trial court's statement regarding proceeding at trial would be accepted as true where not disputed.

3 Jury.

Jurors' relationship to two witnesses for state held not to disqualify jurors who stated that they had not. talked to witnesses, did not know what their testimony would "be and that jurors would treat such testimony as they would that of any other witness.

4. CRIMINAL LAW.

Where defendants, on cross-examination of state's witnesses developed fact that one witness slapped a defendant because he hail lied to witness, and circumstances leading up to the striking, but did not develop statement then made by such defendant, permitting state to introduce statement held error but not to require reversal where subsequent confessions, freely made and properly introduced in evidence, contained the same statement, among others more damaging.

5. HOMICIDE.

Evidence held sufficient to sustain conviction for murder.

6. JURY.

Juror whose wife had certain relations who had married relatives of deceased held not disqualified, in prosecution for murder.

7. CRIMINAL LAW.

Refusing writ of coram nobis to set aside verdict in murder prosecution because a juror's wife had certain relations who had married relatives of deceased Held not error where juror did not know facts relied on to constitute relationship to deceased at time of trial.

HON. W. W. MAGRUDER, Judge.

APPEAL from the circuit court of Clay county HON. W. W. MAGRUDER, Judge.

George Owen and Joe Phillips were convicted of murder, and they appeal. Affirmed.

Affirmed.

Hill Jarratt, N. H. Malone, and J. E. Caradine, all of West Point, for appellants.

The trial court erred in its refusal to sustain the motion of the defendants to quash the jury on account of the remark of the judge made to said jury in the process of the voir dire examination of proposed juror, A. B. Blankenship.

While in the matter of selecting and qualifying a jury, and after some ten jurors had been accepted by the state, the trial judge, in the presence of the other jurors in the box and the remaining members of the special venire who were in the courtroom, asked a proposed juror, A. B. Blankenship, among other questions, if he would render "a white man's verdict."

The remark in question would, perhaps, have been without force in a case where the defendant was a white man and accused of an offense against another member of the white race, but its force becomes intensified and readily apparent in a case such as this, where two negroes are charged with the murder of a white man. It is hard to conceive of a possible meaning of the remark except one that would tend to prejudice the defendants' cause being tried by a jury of white men. It is not urged that the trial judge intended to render any improper influence by the remark or even that he was conscious of having made the remark, but it is earnestly urged that the remark was such as might have been reasonably calculated by the jury to have conveyed the trial judge's attitude towards the defendants as negroes, and which might have produced the verdict or influenced the jury in their verdict, and resulted in their being denied their constitutional right of a trial by an impartial jury guaranteed to them by the twenty-sixth section of the Constitution.

Green v. State, 97 Miss. 834, 53 So. 415; Lamar v. State, 64 Miss. 687, 2. So. 12.

The court erred in permitting the confessions offered by the state to be used against the defendants and each of them, before the jury over the objection of the defendants, and in overruling the defendants' motions to exclude the state's evidence regarding the confessions. It is well settled in this state if on a preliminary hearing by the court there is a reasonable doubt as to whether a confession was free and voluntary, it must be excluded from the jury.

Ellis v. State, 65 Miss. 44; Williams v. State, 72 Miss. 117; State v. Smith, 72 Miss. 420; Whip v. State, 143 Miss. 757; Ammons v. State, 80 Miss. 592; Johnson v. State, 107 Miss. 196; Jones v. State, 133 Miss. 684; Banks v. State, 93 Miss. 700; 1 Greenl. Evidence 221; Peter v. State, 4 Sm. & M. 31; Van Buren v. State, 24 Miss. 516; Simon v. State, 37 Miss. 288; Whitley v. State, 78 Miss. 255; 1 Wigmore on Evidence, 986; State v. Smith, 72 Miss. 420; Harvey v. State, 20 So. 837; Fisher v. State, 110 So. 361, 145 Miss. 116; McMaster v. State, 82 Miss. 459; Boudreaux v. State, 168 So. 621; 16 C. J. 730; Keeton v. State, 167 So. 68; White v. State, 129 Miss. 182.

The trial court made an error in permitting state witness McDonald upon his cross-examination to testify over the objection of the defendants to a statement alleged to have been made by Joe Phillips on the occasion of his arrest on January 6, 1936, after it was shown that immediately preceding such alleged statement, the defendant Joe Phillips had been struck by the arresting officer, which statement was to the effect that he had previously lied to such arresting officer when he said he was not and had not been at the store of Mr. Herman Whatley on the night of the murder.

The defendants asked and were refused an instruction on the presumption of innocence. No other instruction covering the subject was given. We submit that this instruction correctly stated the law of the case and that its refusal is reversible error.

Fugitt v. State, 85 Miss. 94.

All persons are presumed to be absolutely innocent of the crime charged in its entirety and in all its material parts, until the jury finds to the contrary on proper instructions, based on competent and relevant testimony.

Cook v. State, 85 Miss. 738; Howell v. State, 98 Miss. 439; Blalock v. State, 79 Miss. 517; Wilkie v. Collins, 48 Miss. 496; Owens v. State, 80 Miss. 499.

None of the instructions given can take the place of the refused instruction.

Gentry v. State, 108 Miss. 505.

A motive is in general a consideration, which determines choice or induces action; an inducement is an attractive consideration held out to persuade to some particular action, and there is nothing in this record to indicate in the least that these two negro boys had any motive whatever to slay the deceased, Herman Whatley.

The verdict of the jury was contrary to the law and the testimony.

A new trial should have been granted on the hearing of the writ of error coram nobis petition. This petition set up two relationships of one of the jurors, O. C. Brown, to the deceased. It also set up that this juror denied any relation to the deceased or any member of his family by blood or marriage when questioned by the trial judge upon his voir dire examination concerning such relationship; and, further, that such relationship was not known at the trial or prior to adjournment of court by the defendants or their attorneys, nor could it have been known to them or any of them. The above facts were clearly proven by uncontradicted evidence on the hearing thereof. The two relationships set up in the petition were fully verified, and either relationship was such as would have disqualified the juror had it been known to the court. Taking both relationships in conjunction, it is clearly apparent that the juror was not an impartial juror, free and unbiased.

16 R. C. L. 77; Davis v. Searcy, 79 Miss. 292; Garner v. State, 76 Miss. 515; Ledford v. State, 75 Ga. 856.

B. H. Loving, of West Point, and Webb M. Mize, Assistant Attorney-General, for the state.

The trial court did not err in its refusal to sustain the motion of the defendants to quash the jury on account of the judge's remarks to the jury in the process of the voir dire examination of proposed juror, A. D. Blankenship. We think that noticing can be added, or nothing can be said in addition to the judge's order to clear up what the judge actually said to the jurors. None of the inferences appellants say can be drawn from the remarks as they stated it to be, can be drawn from the remarks actually made. As this case is on appeal, the Supreme Court must accept as true the statement of the trial judge as to his recollection of the facts of the proceeding sought to be reviewed.

Turner v. State, 121 Miss. 68, 83 So. 404; Gurley v. State, 101 Miss. 190, 57 So. 565; Hill v. State, 112 Miss. 260, 72 So. 1003; Pinder v. State, 27 Fla. 370, 8 So. 837, 26 A. S. R. 75; Aldridge v. U.S. 75 L.Ed. 1054, 283 U.S. 308; Brumfield v. Consolidated Coach Co., 40 S.W.2d 360.

The trial court did not err in permitting the confessions offered by the state to be used against the defend ants, and each of them, before the jury over the objection of defendants and did not err in overruling the motions to exclude the state's evidence regarding the confessions.

The evidence showed, beyond the peradventure of a doubt, that there were no promises of reward made to the defendants, no expected leniency, or hopes of same, given; that there were no threats, no duress, no expectancy of mob violence, and, in fact it conclusively showed that nothing transpired before the confessions were made that would, in any way, make the confessions inadmissible in...