Pruitt v. State, 29750

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: McGowen, J.
• Citation: 139 So. 861,163 Miss. 47
• Parties: PRUITT v. STATE
• Docket Number: 29750
• Decision Date: 07 March 1932

139 So. 861

163 Miss. 47

PRUITT
v.
STATE

No. 29750

Supreme Court of Mississippi

March 7, 1932

(En Banc.)

1. CRIMINAL LAW.

Objection that foreman of grand jury did not indorse name on indictment could not be raised for first time on appeal (Code 1930, sections 1193, 1198, 1206).

2. CRIMINAL LAW.

Opinion of witness familiar with racial mixture as to race is competent.

3. CRIMINAL LAW.

Supreme Court must consider evidence offered on behalf of state most favorably in determining whether to reverse conviction.

4. CRIMINAL LAW.

Testimony of accomplice alone, uncorroborated, is sufficient to sustain conviction.

5. HOMICIDE.

Evidence, including testimony of accomplice, held sufficient to sustain conviction for murder.

6. HOMICIDE.

In prosecution for murder of mulatto baby born to white woman, evidence of illicit relations between mother and defendant negro held competent to show motive for crime.

7. CRIMINAL LAW.

In prosecution for murder of mulatto baby, that district attorney in argument called jury's attention to fact that defendant negro was making eyes at white mother of deceased while mother [163 Miss. 48] was witness held not reversible error, in view of court's admonition to attorney to stay within record.

8. CRIMINAL LAW.

Trial court cannot be put in error on matter not presented to it.

9. HOMICIDE. Instruction in murder prosecution held not objectionable for omitting words "with malice aforethought" or their equivalent, and in failing to state that poison was administered without authority of law.

Instruction was not objectionable, since it told jury that, if the substance was administered unlawfully for purpose of producing death of deceased with deliberate intention of producing his death, defendant was guilty of murder, and furthermore the poison could not have been administered to the deceased, a baby three months old, with the deliberate intention of producing its death, without it being unlawful.

ANDERSON and GRIFFITH, JJ., dissenting.

HON. J. D. FATHEREE, Judge.

APPEAL from circuit court of Lauderdale county HON. J. D. FATHEREE, Judge.

Ervin Pruitt was convicted of murder, and he appeals. Affirmed.

Affirmed.

S. C. Broom, of Jackson, for appellant.

Ordinarily a conviction may be had upon the uncorroborated evidence of an accomplice, but, where the accomplice is barely intelligent enough to be a witness, and where his reputation for truth and veracity has been successfully impeached by unimpeached witnesses, and where such evidence is not corroborated sufficiently, and where there is strong testimony of an alibi by numerous witnesses, a conviction on such testimony of such impeached witness, will not be upheld.

Hunter et al. v. State, 102 So. 282.

We submit that human life is so sacred as to require a much higher degree of proof than is here submitted, especially when a man much higher and more satisfactory degree of proof was or should have been available. There should have been a post mortem and an analysis [163 Miss. 49] which would have disclosed in all probability the kind and character of poison administered. Then, it would have been an easy matter to check up on this poison and ascertain from whence it came and by whom obtained.

It cannot be said that the witness was uncontradicted because the defendant did not take the stand and deny her statement because to take this position is equivalent to a comment upon his failure to testify and is certainly an improper inference to make from his failure to testify. As a practical proposition under circumstances of this kind, the court knows the utter futility of a negro testifying in a case such as this.

Powell, Harper & Jiggitts, of Jackson, for appellant.

It is essential under the laws of Mississippi that an indictment be endorsed or signed by the foreman of the grand jury. Failure in this regard is fatal error, and renders the indictment bad and void.

Cody v. State, 3 How. 27; Kirk v. State, 13 S. & M. 406; Moore v. State, 13 S. & M. 259; Peter v. State, 3 How. 433.

It is not necessary to make a motion to quash an indictment in the lower court where the prosecutor's name is not marked on said indictment, as said indictment is fatal for such failure, and the highest court will reverse for such fatal defect regardless of whether or not a motion to quash was made in the lower court.

Kirk v. State, 13 S. & M. 406; Jesse v. State, 28 Miss. 100.

The question of the indictment being fatal because of the failure of the prosecutor to sign same is jurisdictional, and will therefore be considered for the first time on appeal.

Jurisdictional matters may be raised for the first time in the Supreme Court. [163 Miss. 50]

Kyle v. Calhoun City, 123 Miss. 542; Cagle v. State, 106 Miss. 831; Norwood v. State, 129 Miss. 813; Dorsey v. State, 143 Miss. 600; Norris v. State, 143 Miss. 365; Ussery v. State, 154 Miss. 704.

It is essential to a valid indictment that it contain a proper caption.

Carpenter v. State, 4 How. 163, 24 Am. Dec. 116; Kelly v. State, 3 S. & M. 518; Sam v. State, 13 S. & M. 189; Thomas v. State, 5 How. 20.

This court has held that the accused cannot waive objections to a void indictment.

Newcomb v. State, 37 Miss. 383; Buchanan v. State, 97 Miss. 839; State v. Coulter, 104 Miss. 764; Taylor v. State, 74 Miss. 544; Herron v. State, 118 Miss. 420.

It was fatal error for the district attorney, during his closing argument, to make use of the following words:

"While the witness, Mrs. Louella Williamson, was testifying, did you see him making eyes at her?"

Cavanah v. State, 56 Miss. 299; Martin v. State, 63 Miss. 505; Turner v. State, 94 Miss. 458, 48 So. 409; Story v. State, 133 Miss. 476; Darby v. State, 121 Miss. 869; De Jean v. State, 108 Miss. 146; Roby v. State, 147 Miss. 575, 113 So. 185.

Improper argument of counsel which will materially prejudice the minds of the jury against the accused is a substantial wrong done him in the trial, for which there must be a reversal.

Story v. State, 133 Miss. 476; Roby v. State, 147 Miss. 575.

Refusal of instruction that malice aforethought was necessary element of murder, etc., the jury should find not guilty was reversible error.

Burnette v. State, 92 Miss. 826.

Malice is a necessary element of murder.

Guest v. State, 96 Miss. 871; 14 R. C. L. page 772, section 39; Brett v. State, 94 Miss. 669, 47 So. 781.

There is also also another fatal defect in the instruction [163 Miss. 51] in that the instruction fails to use the words "without authority of law."

Section 985, Code of 1930.

Where the law governing a case is expressed in a statute the court charging the jury should use the words "there employed."

14 R. C. L. page 722, sec. 29; Ivey v. State, 84 Miss. 264, 36 So. 265; Rutherford v. State, 100 Miss. 832.

The fact that the defendant was or was not the father of the purported mulatto baby did not have any bearing on this case, and the parentage was not a crime involved in this matter.

The evidence of certain witnesses as to the parentage of the infant was purely opinion evidence and should not have been admitted.

Wells v. Skripp, Walker 353; Bloom v. McGarth, 53 Miss. 249; Clumberland Tel. & Tel. Co. v. Odeneal, 26 So. 966; Majors v. State, 83 Miss. 439.

An insane person or idiot is not a competent witness.

Phebe v. Prince, Walker 131.

The testimony of Luella Williamson, being an accomplice, should be weighed with great caution.

Fitzcox v. State, 52 Miss. 923; White v. State, 52 Miss. 216.

Insufficient evidence is, in the eye of the law, no evidence.

State v. Galbo, 2 A.L.R. 1220.

The general rule in this country is that the corpus delicti cannot be established by the confession of the accused, unsupported by corroborated evidence, and a conviction had upon such erroneous evidence cannot be sustained.

Wharton, Criminal Law (1 Ed.), Vol. 1, page 449, sec. 357; 6 Am. & Eng. Law (2 Ed.), page 582; Bines v. State, 118 Ga. 320, 68 L.R.A. 33, 45 S.E. 376, 12 Am. Crim. Rep. 205; Priest v. State, 10 Neb. 393; Smith v. State, 17 Neb. 358. [163 Miss. 52]

Where the corpus delicti is not proven by independent testimony, extra judicial confessions of the accused are insufficient to warrant conviction.

Stringfellow v. State, 26 Miss. 157; Winslow v. State, 76 Ala. 42; State v. German, 54 Mo. 526; U. S. v. Mayfield, 59 F. 118.

Although this court may be reluctant to reverse this case after it has been passed upon by the jury, still if the evidence is inconclusive, and if a great injury would be done by sustaining the verdict of the jury, this court should, we submit, in the interest of highest justice, set aside the verdict of the jury and reverse its findings.

Byrd v. State, 154 Miss. 742; Horn v. State, 60 So. 1011; Sykes v. State, 45 So. 838; Brown v. State, 121 So. 297; Lefere v. Krohn, 127 Miss. 305; Williams Yellow Pine Co. v. Henley, 155 Miss. 893; Mobile & O. R. Co. v. Cox, 153 Miss. 597.

S. D. Redmond, of Jackson, for appellant.

The judgment of the court below is contrary to every material fact. The verdict then being based upon evidence that is so insufficient to support it, so contrary to all the evidence and to instructions as given to the jury by the court, the question is shall this court uphold a verdict so rendered and permit the very grossest injustice?

That the court has a right, and that it is its duty to set aside the sentence of the court below, has been long settled by all of the authorities.

4 C. J. 856, par. 2835; 2 R. C. L. 197; State v. Pienick, -- Wash. -- (1907), 90 P. 645, 11 L.R.A. (N.S.) 987; State v. Brown, 102 P. 641; 24 L.R.A. (N.S.) 545, at page 551; State v. Smart, 4 Richardson's Law (So. Carolina) 356, 55 Am. Dec. 683 at 686; Allen v. Young, 6 T. B. Monroe, 136.

The indictment was insufficient and therefore fatally [163 Miss. 53] defective. The indictment was...