Owens v. State

• Citation: 33 So. 718,82 Miss. 18
• Court: United States State Supreme Court of Mississippi
• Decision Date: 02 March 1903
• Parties: WHITTINGTON OWENS v. STATE OF MISSISSIPPI

33 So. 718

82 Miss. 18

WHITTINGTON OWENS v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

March 2, 1903

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

The appellant, Owens, was indicted by the grand jury of Lafayette county, for the murder of one John A. Montgomery, was tried and convicted and sentenced to death. He appealed therefrom to the supreme court and the conviction was reversed. See Owens v. State, 80 Miss. 499. The former report of the case gives a statement of the facts. The reader, however is referred as well to the case of Matthis v. State, 80 Miss. 491, and to the footnote on page 493 of said volume. After the remand of the case, a change of venue was granted Owens on his application, to Marshall county, where he was again tried and convicted, from which, his motion for a new trial having been overruled, the present appeal was prosecuted by him to the supreme court.

Owens appellant, was also indicted by the same grand jury for the murder of Hugh Montgomery, a brother of decedent in this case, and he was also indicted for the murder of one Williams, and was tried and convicted of this last crime and appealed to the supreme court. See Owens v. State, post, 31.

Matthis who had been convicted of the crime (and since hanged) testified in the present case for the state. On his cross-examination, he stated that no inducement had been offered him to testify as he had done. The state, over the objection of defendant, was permitted to prove the truth of the statement.

In the course of his examination, Matthis further testified, on cross-examination, that "I went into the room with the two Montgomerys for them to go to bed, and Hugh Montgomery had taken a pistol away from me in August, and put me in jail, and gave the pistol to the jailer; John Montgomery got to bed first, and I held the light for them to get to bed, and sat down on the footboard, and Hugh sat down and talked, and finally pulled off his coat, and pulled off a scabbard and laid it under his pillow, and then pulled off his pants, and I asked Hugh to 'let me see that pistol you pulled off the scabbard,' and he says, 'I will show it to you some other time,' and I said, 'Let's see it now.' I had seen the handle, and knew it was mine. I says, 'You told me a damned lie about that pistol; you have got it, and I want it;' and he grabbed around for his pistol, and says, 'God damn you, I will take you to town tonight,' and as he done that the negro (Orlandus Lester) jumped in the door and shot Hugh on the side of the head, and John was reaching around for his pistol, and he shot John."

The fifteenth instruction asked for defendant and refused was as follows: "The court further instructs the jury that, although they may believe from the evidence that the witness Lester went to the house of defendant of his own accord, or was sent there by Matthis on the night of the killing of said officers, and that he (Lester) told defendant that the officers were at Matthis' house, and that he, or he and Matthis, wanted to kill said officers, and that the defendant gave Lester some buckshot shells and told him to go back to Matthis' house and kill said officers, and that the negro (Lester) did go back to the house of Matthis, where the officers were, and attempted to kill said officers, but was prevented by said Matthis from doing so, and that afterwards, and on the same night, Matthis and Hugh Montgomery engaged in a quarrel about a pistol, and that while they were so engaged the negro (Lester) shot and killed said officers, not because Owens had told him to do so, or had in some way influenced him, but alone, because of the trouble between Matthis and Hugh Montgomery, then the jury should find the defendant not guilty."

The opinion of the court contains a further statement of the facts.

Reversed and remanded.

Stephens & Stephens, for appellant.

It was error to permit the district attorney to go upon the witness stand in order to bolster up his own witness.

There had been no charge that anyone, much less the state's attorney, had bribed or persuaded Matthis to testify. 1 Green-leaf, 469; Madden v. State, 65 Miss. 176; Head v. State, 44 Miss. 751, and Williams v. State, 79 Miss. 555.

The fifteenth instruction asked by defendant, and which was refused by the court, should have been given.

Owen is not to be held responsible for what was done in a difficulty that was wholly disconnected with the plot and plan made by him and the negro. Although he may have planned and arranged with Lester to kill the Montgomerys, and Lester left him fully intending to do so, yet if Lester decided not to kill the men, but afterwards did kill them, not because of anything Owen had said or done in the matter, but for another reason, then Owen was not a party to the affair.

The instruction simply carries the idea that if the negro abandoned, from any cause, the design to kill these men according to Owen's instructions or advice, but afterwards killed the men because of some other reason or influence, then the jury must find the defendant not guilty. The testimony of Matthis warrants the theory that Lester shot the officers because he, Matthis, was engaged in a difficulty with them.

It is the right of a defendant to have the jury instructed upon any theory that may be reasonably deduced from the evidence, and the refusal of this instruction was reversible error.

The verdict of the jury in this case is an absolute nullity; it is not such a verdict as the law warrants or recognizes in cases of this kind; no legal judgment could rightfully be pronounced upon it.

The court ought, either to have required the jury to put their verdict in legal form, or have declared a mistrial. At best it simply amounted to a mistrial, for there was no unanimity of consent among the jurors; and therefore no absolute and complete finding, for unanimity of consent is declared to be indispensable to the sufficiency of a verdict.

The written verdict was cloudy and ambiguous, and in attempting to clear it up and rid it of its ambiguity, as it was the duty of the court to do, it was unmistakably shown that the jury had not really agreed upon any verdict at all.

This court has held that the thing to be ascertained is the will and intention of the jury. The words employed in a verdict are the mere vehicles for conveying the jury's will; and where there are words in the verdict raising an apparent cloud as to what the actual intent and finding of the jury is, the court should dispel that cloud and have the jury make plain their meaning.

The oral statements of the jurors show beyond peradventure that they would never have returned a verdict under which they knew Owen would have either to hang or be imprisoned for life. Smith v. State, 75 Miss. 542, and authorities therein cited; Chamberlain's Best on Evidence, sec. 591; Clark's Criminal Procedure, 483, and cases cited; 43 Ala. 320; Davis v. Searcy, 79 Miss. 292.

Monroe McClurg, attorney general, for appellee.

The district attorney testified in response to the questions put to Matthis that he had been promised clemency if he should testify in the case against Owens. It was not only proper for the district attorney, who prosecuted for the state, to relieve the minds of the jury as to any supposed misconduct on his part, but it was competent rebuttal testimony tending to show the falsity of that proposed by the defendant appellant. There is no reversible error found in this proposition. At most, it went to the credibility of the witness Matthis, and was, in fact, worth nothing more either for or against the accused Owen, who was not on the stand, or otherwise making a confession. It was irrelevant matter. Madden's Case, 65 Miss. 176. That case was not reversed because of the admission of such irrelevant testimony, and doubtless would not have been reversed at all but for the testimony admitted as to public sentiment. There is nothing in Williams' Case, 79 Miss. 555, touching this point.

"What do you mean by your verdict?" This question was addressed to the proposition as to whether the jury meant to say "guilty" or "not guilty." It cannot be lawfully otherwise propounded. Not a single juror of the twelve put upon a public gibbet in the presence of the defendant, counsel, interested friends, and a curious public, stated that he opposed a verdict of guilty -- all were agreed on that -- but each stated what he thought the law ought to be in such case. The trial judge let his foot slip in going into this unauthorized procedure, nevertheless found the correct meaning of the verdict twice rendered; namely, that the jury was unanimous in believing the defendant guilty as charged, but that none of them desired that he should be hung. He merely announced the law in such case by pronouncing the life imprisonment sentence. The purpose and intent of the law was certainly reached. Guilty of murder, but not to be hung. The law fixed the life sentence in such case, and the court so correctly ruled in his judgment. The legal effect of the verdict was unquestionably announced by the court. This case will not be reversed because the members of the jury had divergent notions as to what the penalty should be. The jury was unanimous in a verdict of guilty as charged, and that the accused should not be hung. All else were surplusage -- almost judicial folly. The verdict was responsive to the issue. Smith's Case, 75 Miss. 551; Penn's Case, 62 Miss. 450; Traube's Case, 56 Miss. 153; Timmon's Case, 56 Miss. 786; Bedell's Case, 50 Miss. 492; James' Case, 55 Miss. 57; John's Case, 78 Miss. 665; McGuire's Case, 76 Miss. 504.

On the single refused instruction there can be no possible substantial complaint. The other instruction granted at the request...