Phenizee v. State

• Citation: 180 Miss. 746,178 So. 579
• Decision Date: 07 February 1938
• Docket Number: 32983
• Court: United States State Supreme Court of Mississippi
• Parties: PHENIZEE v. STATE

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).

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 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

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.

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 court has nothing before it of such a definite nature as to call for notice by the court on this issue. In some cases the position of the Attorney-General would necessarily be well taken, but here, as will be seen from the quoted parts of the record, which we will insert in this opinion, the summaries made by the trial judge, viewed in the light of the accompanying statements made by counsel for appellant and by the district attorney, are such that we do not believe we would be justified in ignoring the issue.

In connection with this matter of making voir dire examinations a part of the record, it is, of course, within the authority of the trial judge to have all voir dire examinations taken by the court reporter, but so to do would be a useless labor in nine out of ten cases; and under rule 2 of this court the transcript is not to include the voir dire unless requested in writing by appellant. It being useless to put the court reporter to the tedious labor of taking down all voir dire examinations, a proper practice, we think, would be that when interrogatories are being put by counsel to which the other party objects, the reporter should be at once called and required to take the questions and answers to which objection is made, and likewise as to all subsequent objections in the course of the voir dire. Nothing further, it would seem, ought to be required, but properly this much should be.

The record upon the voir dire is as follows, and as we have already said, appellant urges that the examination and statements of the district attorney were such as to exact; a committal from the jurors that they would inflict the death penalty, although they had not yet heard any of the evidence:

"The court made a statement that the question would be put to the jury as to whether they would or would not inflict the death penalty.

"Mr Stribling: 'We object to that statement being made by the court to the jury.'

"Mr. Stribling: 'I want to move the court to have all these jurors stand aside, every one, as the state has virtually told the jury I won't accept you on this jury unless you are willing to hang the defendant and I want to know now in advance what you are going to do; if you are not willing to do that, then I don't want you on this jury and I move the Court to exclude the entire jury, all of them.'

"By the Court: 'The examination of the jurors by the District Attorney has been in substance to the effect that the District Attorney is advising the jurors now that the State's position will be to ask the infliction of the death penalty in this case, and he gives them warning now that that is the nature of the case they are about to sit on and asks them if they are willing to assume such responsibility. The motion will be overruled.'

"By Mr. Stribling: 'I want to state in the record it is my understanding the District Attorney has stated to each and every member of this jury that the state proposes and the intention of the state in the trial of this case is to ask for the death...