Ray v. State, 38335

• Decision Date: 17 March 1952
• Docket Number: No. 38335,38335
• Citation: 57 So.2d 469,213 Miss. 650
• Parties: RAY v. STATE.
• Court: Mississippi Supreme Court

Page 469

57 So.2d 469

213 Miss. 650

RAY v. STATE.

No. 38335.

Supreme Court of Mississippi.

March 17, 1952.

Tom Bourdeaux, Roger Shows, Meridian, for appellant.

J. P. Coleman, Atty. Gen., by Joe T. Patterson, Asst. Atty. Gen., for appellee.

ARRINGTON, Justice.

The appellant, James Ray, Jr., was jointly indicted with Roosevelt Young, Ernest Woodson and Bryant Moody, Jr. for the murder of C. W. McDonald. The appellant was granted a severance, tried, convicted, and sentenced to death, from which judgment he appeals.

McDonald operated a small grocery store in the City of Meridian. He was unmarried, was about 70 years of age, and lived in quarters in his store. On the morning of April 9, 1950, he was found brutally murdered in his grocery store. Upon an investigation made by the officers, Ernest Woodson and Roosevelt Young were arrested, and later, the appellant, James Ray, Jr., and Bryant Moody, Jr., were arrested. Upon arraignment, Bryant Moody, Jr., who was represented by counsel, entered a plea of guilty to murder and was sentenced to life imprisonment in the penitentiary. On the trial of appellant, he testified as a state's witness, implicating the appellant as a participant in the crime. One McCarty testified on the part of the State that he saw the appellant coming out of the store of the deceased at or about the time the alleged crime occurred with something similar to a crowbar. Tony Miller, a 13 year old boy, testified that he saw Ray going into the store with a crowbar. This witness further identified all four of the defendants as being present at the store. The evidence on the part of the state further showed that the murder was planned for the purpose of robbery and according to the testimony of Bryant Moody, Jr., after the robbery, the money obtained was divided into four parts and that Roosevelt Young, one of the codefendants, gave him $50. The appellant James Ray, confessed his guilt to the officers. His confession is fully corroborated by the testimony of the witnesses and the physical facts.

On this appeal, four assignments of error are argued: (1) That the court erred in admitting in evidence a tape recording of the alleged confession made by the accused; (2) the confession was not freely and voluntarily made; (3) the court erred in admitting the testimony of the witness, Tony Miller, because of his youth and that he was not competent to testify, and (4) that the court erred in overruling a motion of the defendant for a subpoena duces tecum. As to the admissibility of the confession, when the confession was offered in evidence, the court conducted a preliminary inquiry as to its admissibility in the absence of the jury. Seven officers testified that the appellant was fully advised of his rights and that his statement was freely and voluntarily made without resort to coercion, force, physical violence, threats, or promise of immunity or reward. The proof further shows that the questioning was held on the ground floor of the city hall in Meridian, that the windows and doors were open and that a large number of people were in and out. The defendant testified on the hearing that his statement made to the officers was not free and voluntary, that he was forced to make his statement as a result of physical violence administered to him by the officers, Nichols, Birdsong, and Wyche; that they beat him and resorted to other brutal treatment in order to make him confess. All of the brutal treatment was denied by the officers. The court held that the confession was admissible. This court has consistently held that where the evidence on the admissibility of a confession is conflicting, this court will not disturb the trial court's finding unless it appears to be clearly contrary to the evidence. Street v. State, 200 Miss. 226, 26 So.2d 678, and authorities cited therein. The appellant contends that the confession was inadmissible under the holding of the court in the case of Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224. The facts in the instant case are quite different from those in the Haley case, which case was fully discussed in Moore v. State, 207 Miss. 140, 41 So.2d 368. In this case, which involved a confession, the court held that the decision of the trial judge that the confession was free and voluntary would be upheld unless manifestly wrong.

After the appellant admitted his guilt and participation in the McDonald murder, a tape recording was made of the accused's confession. The court heard the recording in the absence of the jury. Mike Nichols, Director of the Identification Bureau of the Mississippi Highway Patrol, testified that the machine recorded every sound that was made and that the tape recording reproduced the confession exactly as it was given and that nothing had been added to it or taken from it; that the tape recording had been under lock and key in his possession since it was made and that it was not tampered with or changed in any respect; and that the questions and answers reproduced on the recording were exactly as the questions were propounded to appellant and the answers given by him thereto. The trial court held that the tape recording was admissible and it was played before the jury.

The appellant argues that the admission of the tape recording of an alleged confession, because of its very nature, violates the defendant's rights and is reversible error, and for the further reason that a tape recording is subject to partial deletion, splicing, and rearranging, whereby a person might distort, modify, alter and destroy its original form. This is the first time that the question of a recording has been presented to this court. We have been unable to find where any other court has passed upon the admissibility of a tape recording. The Attorney General, however, cites the case of Williams v. State, Okl.Cr., 226 P.2d 989, 994. In this case a wire recording of a confession was held to be admissible in evidence. The court stated that this was the first time that the identical question had ever been presented to that court and cited 168 A.L.R. 927, Annotation, where cases pertaining to sound recordings as evidence were discussed, and held that the reasoning of the courts in some of those cases would likewise apply to the wire recording there involved. A wire recording is very similar to a tape recording, and we are of the opinion that the holding of the Oklahoma court is applicable to the instant case.

'According to the evidence before us, the wire recording was taken upon a thin wire by mechanical or electrical means. The original recording on a spool was filed with the record on appeal and we have inspected it. Such wire purports to record the sounds of the human voice which are picked up by a microphone and transferred to the wire. The wire is fragile. It can be easily broken and tied together. It can be stopped and played back at will. The wire can be erased and used again. It is the contention of counsel for defendant that the recording wire is so fragile, breakable and perishable that the court should not have admitted it in evidence.

'It is true that most of the cases involving sound recordings as evidence involve various types of discs used to reproduce the sound of the human voice. State v. Perkins, 355 Mo. 851, 198 S.W.2d 704, 708, 168 A.L.R. 920. In that case the...