Phenizee v. State, 32983

CourtMississippi Supreme Court
Writing for the CourtGriffith, J.
Citation180 Miss. 746,178 So. 579
PartiesPHENIZEE v. STATE
Docket Number32983
Decision Date07 February 1938

178 So. 579

180 Miss. 746

PHENIZEE
v.
STATE

No. 32983

Supreme Court of Mississippi

February 7, 1938


Suggestion Of Error Overruled February 28, 1938.

(In Banc.)

1. JURY.

Though trial judge may require court reporter to take all voir dire examinations, it is sufficient that reporter be required to take questions and answers to which objections are made in course of voir dire (Rules of the Supreme Court, rule 2).

2. JURY.

In a capital case, trial judge must ask every juror tendered on trial panel whether he has any conscientious scruples against infliction of capital punishment and must exclude any juror who has such scruples (Code 1930, section 2068).

3. JURY.

In capital cases, where trial judge observes that a juror has not understood question whether he has any conscientious scruples against the infliction of capital punishment, judge should explain meaning of question, or after explaining question, translate it into simple form by asking whether juror is opposed to hanging or whether juror is opposed to death penalty in particular class of case about to be tried (Code 1930, section 2068).

4. JURY.

The right of parties and their attorneys to examine jurors after trial judge has satisfied himself of competency of panel belongs to district attorney as well as to other attorneys (Code 1930, section 2068).

[180 Miss. 747]

5. JURY.

In a capital case, district attorney may satisfy himself by a reasonable examination that no juror who entertains conscientious scruples against death penalty shall remain on jury, even though juror or jury may have passed trial judge's examination (Code 1930, section 2068).

6. JURY.

The district attorney's examination of jurors on question whether they entertain conscientious scruples against death penalty in capital cases should be in the abstract, and he must not go to extent of forcing a committal with respect to what juror or jury would do in the particular case, nor should examination create impression that juror will be looked upon with displeasure unless he returns a death verdict (Code 1930, section 2068).

7. CRIMINAL LAW. Jury.

In murder prosecution, district attorney's statements to jury on voir dire that state was going to ask death penalty and that any one opposed to inflicting death penalty would be excused, were erroneous, but error was cured by trial judge's statement that it was solely for jury to say whether capital punishment should be inflicted in any case, by district attorney's statement that it was up to jury whether death penalty should be inflicted, and by written instruction, given at state's request telling jury that if a verdict of guilty was returned, jury could fix penalty at death or life imprisonment (Code 1930, section 2068).

HON. JOHN C. STENNIS, Judge.

APPEAL from the circuit court of Lowndes county HON. JOHN C. STENNIS, Judge.

James Phenizee was convicted of murder, and he appeals. Affirmed.

Affirmed.

Wm. P. Stribling, of Columbus, for appellant.

We submit that under the authorities, Fugitt v. State, 37 So. 557; Roney v. State, 142 So. 475; State v. Ussery, 152 So. 302, all considered unerringly point to one conclusion that is most fundamentally violated in organizing a jury to try this man for his life, to-wit: the examination must be scrupulously conducted with fairness to the defendant on trial for his life.

The whole effect of the voir dire examination was to [180 Miss. 748] commit this jury of white men to the proposition of hanging this negro for the State pretty nearly regardless of the law and the evidence, and no such a voir dire examination should be permitted to stand where a human life is to be snuffed out as a result of the jury's verdict.

We insist that when the set of instructions are considered in connection with this voir dire examination that it is entirely out of the question to take the life of a human being as a result of a verdict of a jury so steeped in committals and so instructed that they may ignore the defendant's inalienable right to the benefit of every reasonable doubt.

W. D. Conn, Jr., Assistant Attorney. General, for the State.

A trial court has the right to exclude from the jury any person who states that he has conscientious scruples against the infliction of capital punishment.

Barcwitz v. State, 115 Miss. 47, 75 So. 671.

The substance of the voir dire examination in the case at bar seems to be an effort on the part of the district attorney to be able to exclude from the jury those who did not believe, or had conscientious scruples against the infliction of the death penalty.

Assuming, however, that the district attorney may have urged the matter too strongly on the jury, nevertheless, the action of the trial court in telling the jury, in response to all of these objections, that the jury, and the jury alone, were sole judges as to whether the death penalty should be inflicted, was sufficient to remove the and the jury alone, to say whether or not this death penalty should be inflicted, was sufficient to remove the prejudicial effect of such character of examination.

On the record we submit that there was no error in the giving of any or of all of the instructions.

Blevins v. State, 154 So. 269; Millette v. State, 167 Miss. 172, 148 So. 788; Speaks v. State, 161 Miss. 334, 136 So. 921; Floyd v. State, 166 Miss. 15, 148 So. 226; Powers v. State, 168 Miss. 541, 151 So. 730; Davis v. State, 154 So. 304; Eddleman v. State, 155 So. 420; Ransom v. State, 149 Miss. 262, 115 So. 208; Hartfield v. State, 170 So. 531.

Argued orally by Wm. P. Stribling, for appellant, and by W. D. Conn, Jr., for the State.

OPINION

[180 Miss. 749] Griffith, J.

Appellant was convicted of murder and sentenced to be hanged. There is no assignment that the verdict is not sustained by the evidence; but in accordance with our custom in death cases, we have carefully the record, as if such an assignment were urged, and we find the evidence amply sufficient. We see no reversible error either in the admission or rejection of evidence, and none in the instructions of the court.

Counsel for appellant has brought, to our attention the examination of the jurors on the voir dire, and the statements made in the presence of prospective jurors, by the district attorney, in the course of that examination, and has urged that the import of the interrogatories and statements was such as to commit the jurors to the infliction of the death penalty before a word of the evidence had been heard. This contention we deem of sufficient moment to require full discussion. [178 So. 580]

It sufficiently appears that all the questions and answers on the voir dire are not in this record, and the Attorney General takes the position, Young v. State, 150 Miss. 787, 117 So. 119, that in such a situation the...

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12 practice notes
  • Balfour v. State, No. 89-DP-1355
    • United States
    • United States State Supreme Court of Mississippi
    • March 25, 1992
    ...of Phenizee v. State that the parties are entitled to further, supplementary examination to that of the trial judge. Phenizee v. State, 180 Miss. 746, 753-54, 178 So. 579, 582 (1938). We can do no more to improve upon this point than that which we stated in Historically, the procedural auth......
  • Simon v. State, No. 91-DP-00353-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • February 20, 1997
    ...784 (Miss.1987); Murphy v. State, 246 So.2d 920, 921 (Miss.1971); McCaskill v. State, 227 So.2d 847, 852 (Miss.1969); Phenizee v. State, 180 Miss. 746, 178 So. 579, 582 The line between a proper and improper question is not always easily drawn; it is manifestly a process in which the trial ......
  • Hansen v. State, No. 89-DP-0823
    • United States
    • Mississippi Supreme Court
    • December 18, 1991
    ...and it shall not be necessary to propound the questions through the presiding judge.... 3 We have recognized in Phenizee v. State, 180 Miss. 746, 753-54, 178 So. 579, 581-82 (1938), that this rule means what it says. Of late, we have promulgated procedural rules contemplating voir dire exam......
  • Williams v. State, No. DP-56
    • United States
    • United States State Supreme Court of Mississippi
    • October 7, 1987
    ...State, 246 So.2d 920, 921 (Miss.1971); McCaskill v. State, 227 So.2d 847, 852 (Miss.1969) (reversed on other grounds); Phenizee v. State, 180 Miss. 746, 178 So. 579, 582 (1938). In Phenizee, Justice Griffith The examination on the question we are here considering should be in the abstract a......
  • Request a trial to view additional results
12 cases
  • Balfour v. State, No. 89-DP-1355
    • United States
    • United States State Supreme Court of Mississippi
    • March 25, 1992
    ...of Phenizee v. State that the parties are entitled to further, supplementary examination to that of the trial judge. Phenizee v. State, 180 Miss. 746, 753-54, 178 So. 579, 582 (1938). We can do no more to improve upon this point than that which we stated in Historically, the procedural auth......
  • Simon v. State, No. 91-DP-00353-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • February 20, 1997
    ...784 (Miss.1987); Murphy v. State, 246 So.2d 920, 921 (Miss.1971); McCaskill v. State, 227 So.2d 847, 852 (Miss.1969); Phenizee v. State, 180 Miss. 746, 178 So. 579, 582 The line between a proper and improper question is not always easily drawn; it is manifestly a process in which the trial ......
  • Hansen v. State, No. 89-DP-0823
    • United States
    • Mississippi Supreme Court
    • December 18, 1991
    ...and it shall not be necessary to propound the questions through the presiding judge.... 3 We have recognized in Phenizee v. State, 180 Miss. 746, 753-54, 178 So. 579, 581-82 (1938), that this rule means what it says. Of late, we have promulgated procedural rules contemplating voir dire exam......
  • Williams v. State, No. DP-56
    • United States
    • United States State Supreme Court of Mississippi
    • October 7, 1987
    ...State, 246 So.2d 920, 921 (Miss.1971); McCaskill v. State, 227 So.2d 847, 852 (Miss.1969) (reversed on other grounds); Phenizee v. State, 180 Miss. 746, 178 So. 579, 582 (1938). In Phenizee, Justice Griffith The examination on the question we are here considering should be in the abstract a......
  • Request a trial to view additional results

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