Peterson v. State, 46821

Citation268 So.2d 335
Decision Date19 June 1972
Docket NumberNo. 46821,46821
PartiesFred PETERSON v. STATE of Mississippi.
CourtUnited States State Supreme Court of Mississippi

Harold J. DeMetz, Ebb J. DeMetz, Gulfport, for appellant.

A. F. Summer, Atty. Gen., by Karen Gilfoy, Sp. Asst. Atty. Gen., Jackson, for appellee.

GILLESPIE, Chief Justice:

This is the second appeal of Fred Peterson, who was first convicted of murder in the Circuit Court of Stone County and sentenced to suffer the death penalty. His conviction was reversed by this Court on the ground of improper venue. Peterson v. State, 242 So.2d 420 (Miss.1970). Thereafter, he was tried in the Second Judicial District of Harrison County and was again convicted of murder of and sentenced to suffer the death penalty. At both trials and on both appeals the defendant has had the services of the same court-appointed counsel, who has capably served his client with selfless devotion in the best tradition of the profession.

I.

Defendant contends first that the process of selecting grand and petit jurors deprived him of due process and equal protection of the law. Mississippi Code Annotated section 1766 (1956) provides in part that the board of supervisors 'shall use the registration book of voters and shall select and list the names of qualified person of good intelligence, sound judgment, and fair character. . . .' Defendant argues that this statute permits the board of supervisors to use purely subjective tests and that jurors need only meet the personal requirements of the individual members of the board of supervisors. Defendant further argues that inasmuch as he is of law intelligence, poor character, and is of low intelligence, poor character, and and selecting jurors deprived him from being tried by a jury of his peers, and for this reason defendant's life was placed in the hands of individual jurors who probably could not appreciate the facts and circumstances of his life, background, education, character and judgment.

Defendant's arguments are without merit. All provisions of law relating to testing, drawing, summoning and impaneling jurors are merely directory. Holloway v. State, 242 So.2d 454 (Miss.1970). There was no showing in the trial court that the jurors were unconstitutionally listed or drawn. Gordon v. State, 160 So.2d 73 (Miss.1964). Moreover, due process and equal protection of the law do not require lowering the quality of the trial process. This Court has rejected the contention that the statutory method of selecting jurors is unconstitutionally vague because of alleged subjective and nonreviewable standards. Reed v. State, 199 So.2d 803 (Miss.1967), cert. denied 390 U.S. 413, 88 S.Ct. 1113, 19 L.Ed.2d 1273 (1968). The test is whether the jury lists reasonably reflect a cross-section of the population suitable in character and intelligence for that civic duty. Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953). The jury in this case was lawfully drawn, listed, and impaneled. Alexander v. Louisiana, 405 U.S. 625. 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972).

II.

The principal argument of defendant is that imposition of the death penalty constitutes 'cruel and unusual punishment' under the Eighth Amendment of the Constitution of the United States, and 'cruel or unusual punishment' under Mississippi Constitution Article 3 section 28. This Court recently considered this question in Capler v. State, 237 So.2d 445 (Miss.1970), and held that imposition of the death penalty is neither cruel nor unusual punishment, and upheld the statutes imposing capital punishment. In the earlier case of Shimniok v. State, 197 Miss. 179, 19 So.2d 760 (1944), the death penalty and the arguments for and against it were considered and the method of determining such punishment upheld.

The defendant relies upon the argument, authorities and supporting data submitted to the Supreme Court of California in People v. Anderson, 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880 (Cal.1972), and upon the opinion in that case. The Anderson opinion, which is essentially an excellent symposium on the subject of capital punishment, merits serious consideration, but a careful study of it and some of the source material upon which it is based does not persuade us that its conclusions are valid.

This Court has the power to strike down the statutes allowing capital punishment, and it is indeed our duty to do so if they offend either the Constitution of the United States or the Constitution of Mississippi. But the extent of the Court's power and the imperative nature of its duty to uphold the Constitutions do not dispose of the question before us.

Our approach to the question of whether capital punishment is cruel or unusual, and therefore constitutionally impermissible, brings into focus the policy of this Court in determining constitutional questions. We believe the proper function of this Court is to maintain a balance between a rigid unwillingness to change on the one hand, and an obsession with novelty in the pursuit of unproven methods on the other. This middle course is not only conducive to reasonable stability in the law, but to repose in society in general. This Court is committed to the proposition that because judges define their own powers, self-restraint is a cardinal virtue. In scores of cases we have held that all presumptions andintendments should be indulged in favor of the validity of a statute, and its unconstitutionality should appear beyond a reasonable doubt before it will be held invalid.

It is argued that capital punishment offends contemporary standards of decency common to civilized peoples. This assertion is not to be lightly brushed aside even if it is a most ambiguous statement. It is true that some countries and some states in the United States have abolished capital punishment. However, except in Anderson these changes have been accomplished by state legislatures.

This is the most violent century in modern history, and this great nation is one of the most violent countries in...

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23 cases
  • Stevens v. State, No. 2000-DP-00507-SCT.
    • United States
    • Mississippi Supreme Court
    • September 13, 2001
    ...is to define crimes and set out punishment for offenders, and this prerogative is given great latitude." Id.; See Peterson v. State, 268 So.2d 335, 337-38 (Miss.1972). ¶ 52. There only needs to be one act alone in order to constitute abuse and/or battery. Brown v. State, 690 So.2d 276, 291 ......
  • State v. Waddell
    • United States
    • North Carolina Supreme Court
    • January 18, 1973
    ...that the remainder of the statute is valid, and the only other punishment for murder is life imprisonment.' Accord, Peterson v. State, Miss., 268 So.2d 335 (1972). In State v. Square, La., 268 So.2d 229 (1972), the defendant's conviction of murder and the death sentence pronounced thereon h......
  • State v. Kleypas
    • United States
    • Kansas Supreme Court
    • December 28, 2001
    ...and dissenting),cert. denied 455 U.S. 922 (1982). Other courts have rejected Anderson challenges outright. Peterson v. Mississippi, 268 So.2d 335, 336 (Miss. 1972) ("The Anderson opinion, which is essentially an excellent symposium on the subject of capital punishment, merits serious consid......
  • Hall v. State, 57940
    • United States
    • Mississippi Supreme Court
    • February 9, 1989
    ...Wheeler v. Shoemake, 213 Miss. 374, 57 So.2d 267 (1952); Broadhead v. Monaghan, 238 Miss. 239, 117 So.2d 881 (1960); Peterson v. State, 268 So.2d 335 (Miss.1972); Masonite Corp. v. State Oil and Gas Board, 240 So.2d 446 (Miss.1970); Anderson v. Fred Wagner, etc., 402 So.2d 320, 321 (Miss.19......
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