Pearson v. State

• Decision Date: 20 April 1936
• Docket Number: 32086
• Citation: 176 Miss. 9,167 So. 644
• Court: Mississippi Supreme Court
• Parties: PEARSON v. STATE

167 So. 644

176 Miss. 9

PEARSON v. STATE

No. 32086

Supreme Court of Mississippi

April 20, 1936

Suggestion Of Error Overruled May 18, 1936.

(In Banc. Suggestion of Error Overruled May 18, 1936.)

1. CRIMINAL LAW.

Where murder indictment was quashed on ground that negroes were omitted from jury box from which grand jury was drawn defendant could not complain of trial court's refusal to quash second indictment on ground that grand jury was drawn from registration books and not from jury box which had been quashed (Code 1930, secs. 2029, 2033, 2038, 2039, 2040, 2060; Const. 1890, sec. 264).

2. CRIMINAL LAW.

Return of second indictment after quashing of first indictment on motion of defense counsel appointed by court held not to entitle counsel to additional time to prepare for trial on ground that quashing of first indictment relieved counsel of duty to defend.

3 HOMICIDE.

Evidence supported conviction for murder.

4 WITNESSES.

Permitting court reporter to read shorthand notes to prove defendant's statements to district attorney prior to trial held not error, notwithstanding notes were not submitted to or signed by defendant, since rule that statements taken by justices of the peace at preliminary hearings are inadmissible until signed by defendant was inapplicable.

5 WITNESSES.

Witness who has made memorandum in writing on preliminary hearing may refresh his memory therefrom, if witness has testified to correctness of memorandum.

HON. WM. A. ALCORN, Judge.

APPEAL from circuit court of Coahoma county HON. WM. A. ALCOR, Judge.

Fedro Pearson was convicted of murder, and he appeals. Affirmed.

Affirmed.

Pat D. Holcomb and Edward W. Smith, both of Clarksdale, for appellant.

Defendant was denied rights guaranteed by Article VI and XIV of Constitution of United States. Counsel was appointed on Monday, the seventh day of October, to defend the appellant against the charges of the second indictment and was given until the following morning at nine o'clock, Tuesday, October 8th, to plead to that indictment. At said time appellant filed a motion to quash the indictment on the ground alleged therein and at that time moved the court to allow the defendant until two o'clock to make further investigation of authorities and to subpoena witnesses. The court denied the motion for time and forced defendant then and there to present the motion to quash without affording counsel opportunity to adequately acquaint himself with the law, or to adequately present the facts by having his witnesses subpoenaed, thereby denying appellant the constitutional right of compulsory process.

Commonwealth v. O'Keefe, 298 Pa. 169, 148 A. 73; Powell v. Alabama, 77 L.Ed. 158; Paoni v. U.S. 281 F. 801; Constitution of United States, Articles VI and XIV; Constitution of State of Mississippi, sec. 26; Section 1262, Code of 1930; State v. Poole, 23 So. 503; State v. Brooks, 1 So. 421; Shaffer v. Terr., 127 P. 746; Schields v. McMicking, 23 Philippine 526; Warren v. State, 164 So. 234.

The grand jury which found the indictment against appellant was improperly and irregularly drawn and unknown to Mississippi jurisprudence, and therefore the indictment should have been quashed.

The order sustaining the motion to quash the indictment in Cause No. 4071 is the only authority for the convening of the grand jury that indicted this defendant in Cause No. 4080. The order was entered by an independent action of the court without application therefor by the district attorney or accused. It is respectfully submitted that the court was without authority to summon another grand jury; for, the court is only authorized and empowered to impose upon the province of the board of supervisors and the general laws applicable to the convening of jurors in certain enumerated cases.

Sections 2060 and 2062, Code of 1930; Williams v. State of Mississippi, 42 L.Ed. 1012; Gibson v. State of Mississippi, 40 L.Ed. 1075; Smith v. State of Mississippi, 40 L.Ed. 1082; Norris v. Alabama, 79 L.Ed. 1074; Campbell v. State 7 So. 441; Cook v. State, 90 Miss. 137; Baker v. State, 23 Miss. 243.

The court erred in permitting Mr. John Sligh, the official court reporter, to read from his notes an alleged confession.

The shorthand notes were certainly a confession reduced to writing by another person, which was not signed by appellant, or read over to appellant and admitted to be correct by appellant, and, therefore, was not admissible.

16 C. J. 732, sec. 1508.

It seems that without exception the courts recognize that a written confession must either be signed or voluntarily approved as his writing.

Shelton v. State, 117 So. 8.

Since there are so many glaring errors and imperfections of both law and procedure, as is reflected by the entire record in this cause, the defendant, certainly, comes squarely within the announcement of the recent case of Warren v. State, 164 So. 234.

A contravention of Article VI of the Federal Constitution is a deprivation of Article XIV of the Constitution of the United States. Further, Section 26 of the Constitution of the State of Mississippi and Section 1262 of the Mississippi Code of 1930 insures to one charged of crime virtually the same rights as Article VI.

However, the denial in fact of counsel in contravention of Article VI of the Constitution is tantamount to a denial of the due process clause of the WIV Amendment to the Constitution of the United States.

The single condition on which the court could rightfully have awarded a special venire did not exist. It was a void act.

Baker v. State, 23 Miss. 243.

There was not a scintilla of evidence in the record that fraud had been practiced, therefore the court was without authority to quash the box.

Sections 2052, 2060 and 2062, Code of 1930; Campbell v. State, 17 So. 441; Cook v. State, 90 Miss. 137; Quich v. State, 132 Miss. 794; Baker v. State, 23 Miss. 243.

It is respectfully submitted that the action sua sponte of the court in ordering a special venire of fifty jurors was error.

Section 2064, Code of 1930; Gavigan v. State, 55 Miss. 533.

W. D. Conn Jr., Assistant Attorney-General, for the state.

At the outset, it is well enough to call attention to the fact that Article VI of the amendment to the Federal Constitution confers no rights on a defendant in a state court. This amendment is exclusively a limitation on federal authority--it is no limitation on the state.

Counsel was appointed on September 26th and trial had on October 11th, a time of some fifteen or sixteen days after the appointment was made. Under such circumstances, can an attorney insist that he is unprepared and ask for further time to "prepare another plea, or another defense, whatever it might be," particularly when no further "plea, or defense" is hinted at by any subsequent pleading. It is not shown that the defendant could have made any further "pleas or defenses" and for this reason it would be utter folly to send this case back for another trial just to see if it would be possible for some other attack t:o be made upon the indictment in this case.

Giles v. State, 150 Miss. 756, 116 So. 887.

From this record it clearly appears that the first indictment was quashed upon motion of defendant upon the ground that negroes had been excluded from jury duty solely because of their race and color contrary to the Fourteenth Amendment to the Federal Constitution. Norris v. Alabama, 79 L.Ed. 1074 ((me of the Scottsborg cases). The court, in quashing the indictment, on the proof offered, apparently sua sponte quashed the jury box, as I say it should have done.

After this indictment and the jury box was quashed the court ordered the sheriff to summons fifty persons for jury duty to appear at nine o'clock a. m., October 5, 1935. Out of this group evidently a grand jury was organized and this grand jury returned the indictment on which this defendant was tried.

The motion to quash this indictment was grounded upon the proposition that the jury should have been drawn front the jury boxes instead of by way of an open venire--that the court exceeded its authority in quashlng the jury boxes of its own motion. In other words, appellant wanted another grand jury drawn from the same box as the first one, one which would be subject to the same criticism as was directed to the first one, a simple case of blowing hot and cold with the same breath.

The opinion in the case of Norris v. Alabama, supra, contains no new rule of law so far as Mississippi is col, cerned. The rule there referred to has been the Mississippi rule for a good many years. See Farrow v. State, 91 Miss. 509, 45 So. 619. And if on proper showing on a motion to quash an indictment it, clearly appears that the Vice of the same goes back to an improperly constituted jury box, the court, of its own motion, ought to quash the box.

Quick v. State, 132 Miss. 794, 96 So. 737.

Thus it seems that since it is the duty of the court to see that a jury is composed of fit persons, a fair and unbiased jury, one to which no legal objection may be made, and this matter is addressed largely to its judicial discretion, this court should not hold this trial court in error for its evident purpose in acting to get a panel to which there could be no legal objection and particularly when it clearly appears that a fair and impartial jury sat in this case. At least, nothing to the contrary appears of record.

It is argued here that the notes of the official court reporter constituted a written confession not adopted by appellant and consequently inadmissible as evidence. In McMasters v. State, 83 Miss. 1, 35, So. 302, and Tyler v. State, 159 Miss. 223, 131 So. 417, the state submits that this testimony was competent and admissible.

Argued orally...