Owens v. State

• Decision Date: 09 March 1903
• Citation: 33 So. 722,82 Miss. 31
• Court: Mississippi Supreme Court
• Parties: WHITTINGTON OWENS v. STATE or MISSISSIPPI

33 So. 722

82 Miss. 31

WHITTINGTON OWENS v. STATE or MISSISSIPPI

Supreme Court of Mississippi

March 9, 1903

FROM the circuit court of Lafayette county. HON. PERRIN H. LOWREY Judge.

Owens appellant, was indicted and convicted of murder, and appealed to the supreme court. The facts are stated in the opinion of the court.

For a history of appellant's several trials, see Owens v State, ante, 19; Owens v. State, 80 Miss. 499; Matthis v. State, 80 Miss. 491, and the footnote to last case, at page 493.

Reversed and remanded.

H. D. Stephens, for appellant.

Under the facts, appellant was clearly entitled to a change of venue. The condition of the public mind in Lafayette county was so adverse to him that it was with difficulty that he was protected from a mob. The court below, because of the pre-judgment of his case by the people of that county, and the grudge and ill-will borne towards him by that people, adjudged that appellant was entitled to a change of venue in the cases against him for killing the Montgomerys.

In the present case, where the change of venue was denied appellant, the witnesses are the same as those against him in the Montgomery cases; there is a decided connection between the causes. If appellant be guilty, all three of the murders were committed in pursuance of a common design. It is true the offense in the present case was committed before the Montgomerys were killed, and that the killing of Williams attracted but little public attention, and that the prejudgment of appellant and the grudge and ill-will borne against him by the people did not come into existence until after the Montgomerys were murdered, but it all exists now, and existed with great intensity when the change of venue in this case was applied for by appellant. It is impossible to separate the cases in the public mind. The court below had a wrong conception of the law of the case. It proceeded upon the idea that a change of venue should be denied, no matter how much prejudice, prejudgment, grudge, of ill-will might be entertained by the public against appellant, unless such prejudgment, ill-will, etc., grew out of the particular charge to be tried. No conception could be more erroneous. Any conception is erroneous which will turn an accused over to a howling mob of infuriated men for execution, although the process be called a trial.

W. V. Sullivan, on same side.

[Mr. Sullivan's brief was withdrawn or lost from the record before it reached the reporter. ]

William Williams, attorney general for appellee.

The testimony shows that there was a sentiment in the county of Lafayette against appellant on account of the murder of the Montgomerys, but that the murder of Hampton Williams and appellant's connection with same had been discussed very little, and the testimony offered for and against the application for a change of venue shows beyond a doubt that the murder of Hampton Williams attracted but little attention.

"In reviewng the action of the circuit court in refusing defendant's application for a change of venue where a motion for a new trial has been overruled, and the whole evidence in the record, this court will not look alone to the evidence before the court on the application for a change of venue, but will judge from the whole case whether an impartal trial was had." Cheatham v. The State, 67 Miss. 335.

If there was no abuse of the discretion vested in the trial court, this court should not reverse the judgment of the trial court on this application and motion. Stewart v. The State, 50 Miss. 587; Bishop v. The State, 62 Miss. 289.

The record shows that after the examination of about forty-five persons, the jury of twelve had been empaneled and was accepted by both the state and the defendant. The court's attenton is directed to the fact that in empaneling the jury, appellant exercised only seven peremptory challenges.

It is submitted that every case should stand upon its own merits, and that the facts in this case show that appellant was tried by a fair and impartial jury. If this contention is true, then the third assignment of error is not tenable.

Argued orally by H. D. Stephens and W. V. Sullivan, for appellant, and William Williams, attorney general, for appellee.

OPINION

TERRAL, J.

The appellant, Whittington Owens, was convicted in the circuit court of Lafayette county of the murder of Hampton Willams, and was sentenced to be hanged. From that sentence he takes this appeal.

One of the principal grounds of complaint which he makes is the refusal of the court to grant him a change of venue for the trial of said cause. The present indictment against Owens...