Richardson v. State

• Citation: 121 So. 284,153 Miss. 654
• Decision Date: 25 March 1929
• Docket Number: 27628
• Court: United States State Supreme Court of Mississippi
• Parties: RICHARDSON v. STATE. [*]

121 So. 284

153 Miss. 654

RICHARDSON v. STATE. ^[*]

No. 27628

Supreme Court of Mississippi

March 25, 1929

Suggestion of Error Overruled April 15, 1929.

(En Banc.). Suggestion of Error Overruled April 15, 1929.

1. CRIMINAL LAW. Conviction will not be disturbed because of refusal of change of venue, where conflicting testimony tends to show case was not prejudged.

Where testimony on motion for change of venue is in conflict and reasonably tends to show that the case has not been prejudged, supreme court will not disturb verdict because of refusal of motion.

2. CRIMINAL LAW. Refusal of change of venue held not erroneous where jury was accepted without objection and without defendant exhausting peremptory challenges.

Overruling of motion for change of venue held not to constitute error where jury was accepted without objection and without defendant having exhausted his peremptory challenges.

3. CRIMINAL LAW. Permitting murder case to be reopened to show deceased came to his death as result of bullet wound held not erroneous.

Action of trial court in prosecution for murder in permitting case to be reopened for the purpose of showing that deceased came to his death as result of bullet wound held not erroneous.

4 HOMICIDE. Evidence in murder prosecution required submission to jury.

Evidence in prosecution for murder held sufficient to require submission to jury.

5 HOMICIDE. Instruction referring only to punishment for murder held not erroneous as depriving jury of right to convict of manslaughter.

Instruction in prosecution for murder, referring only to punishment for crime of murder in the usual form, held not erroneous as depriving jury of right, if they saw fit to do so, to convict of manslaughter.

6. HOMICIDE. Refusal of instructions relating to manslaughter if defendant killed deceased while resisting unlawful search held not erroneous, in view of defense (Hemingway's Code 1927, sections 1016, 1265).

In prosecution for murder, refusal of instructions based on Hemingway's Code 1927, section 1016 (Code 1906, section 1237), relating to conviction for manslaughter in case defendant unnecessarily killed deceased while resisting search after unlawful arrest, in violation of Hemingway's Code 1927, section 1265 (Code 1906, section 1447), held not erroneous in view of fact that entire defense was based on theory that killing was accidental and unintentional.

7. HOMICIDE. Error in excluding evidence of arrest without warrant held harmless under evidence repudiating killing resisting arrest. In prosecution for murder, any error in exclusion of evidence as to circumstances of arrest tending to show that arrest without warrant was not on probable cause or reasonable ground to suspect defendant had committed felony held harmless, in view of fact that evidence repudiated any theory that killing occurred while resisting arrest.

ETHRIDGE, GRIFFITH and ANDERSON, JJ., dissenting.

HON. W. A. WHITE, Judge.

APPEAL from circuit court of Hancock county, HON. W. A. WHITE Judge.

Silas Richardson was convicted of murder, and he appeals. Affirmed.

Judgment affirmed.

M. T. Nailling and Mize & Mize & Thompson, for appellant.

Counsel for the state may argue that the second motion for a change of venue was properly overruled under Cummings v. State, 144 Miss. 634, 110 So. 206. We therefore desire to point out the difference between the Cummings case and the case at bar. The Cummings case shows that a voir dire examination of the jurors was not contained in the record, and the court was therefore unable to see just what testimony the jurors gave on such examination and, further, in that case the defendant was not shown to have exercised all his peremptory challenges. We take it from an examination of the case, that the defendant in the Cummings case did not raise his motion until after the jury had been accepted by both sides, and since the defendant had not exhausted his peremptory challenges, he could not say that he did not get a fair and impartial jury.

We submit that this rule cannot be applied to this case, for the reason that the defendant made his motion before any member of the jury had been accepted by him. But, after the court had erroneously overruled his motion, the defendant was then placed in the position of being forced to get the best possible jury, whether fair and impartial or not, to try his case. It is true that the defendant did not use but ten of his peremptory challenges, but we do not believe that the inference can be carried out to such an extent as to say that, because all his peremptory challenges were not exhausted, the defendant could not be heard to say that he could not get a fair trial. See Fisher v. State, 145 Miss. 116, 110 So. 361; Sunderland v. United States, 19 F.2d 202; McNeely v. State, 283 S.W. 522; People v. Arthur, 145 N.E. 413; Hampton v. State, 88 Miss. 527, 40 So. 445, 117 Am. St. Rep. 740.

The court erred in permitting the case to go to the jury on the sole theory of it being murder or nothing. Under this assignment we wish to argue, further, that the court erred, therefore, in giving the second instruction for the state. Under this instruction the court clearly committed manifest and prejudicial error in that the court, by this instruction and other instructions asked by the defendant and refused by the court, refused to submit the case to the jury on any other theory than that of murder. This instruction amounts practically to an instruction on the weight of the evidence, for the reason that the evidence showed to the jury that John Damberino was dead, and the instruction told the jury that if they believed from the evidence that the defendant willfully, feloniously and of his malice aforethought, and not in his necessary self-defense, without authority of law and with premeditated design did take the life of John Damberino, it was their duty to find him guilty of murder.

Certainly, the evidence did not justify any such instruction being given unless the proposition of manslaughter was submitted to the jury also; because, under the evidence, the jury could have believed that the defendant, Silas Richardson, did kill John Damberino, and still not have believed that he did it with malice aforethought or with premeditated design.

The evidence showed, or tended to show, and would have shown clearly had the court permitted the defendant to go into such testimony, that the defendant was unlawfully incarcerated, and, as a logical sequence, was therefore unlawfully searched. We think the testimony showed clearly, conclusively and uncontradictedly, taking the state's testimony alone as true, that the defendant was unlawfully arrested and incarcerated, because the witness. Oliver, who arrested the defendant, stated in the absence of the jury that he had no warrant for the defendant's arrest; that the defendant did not have any automobile in possession at the time he was arrested; that he had only been informed that the defendant had taken a car, and, when examined as to the nature of his information, such examination showed it to be no more than a mere suspicion, and it certainly did not amount to probable cause. See Sec. 1265, Hem. Code 1927; Sec. 1204, Hem. Code 1917; Sec. 1447, Code of 1906; Kennedy v. State, 139 Miss. 579, 104 So. 449; Sec. 1016, Hem. Code 1927; Sec. 969, Hem. Code 1917; Williams v. State, 120 Miss. 604, 82 So. 318; Williams v. State, 122 Miss. 151, 84 So. 8; Williams v. State, 127 Miss. 851, 90 So. 705; Cryer v. State, 71 Miss. 467, 14 So. 261, 42 Am. St. Rep. 473; Fletcher v. State, 129 Miss. 217, 91 So. 340; Kennedy v. State, 139 Miss. 579, 104 So. 450; King v. State, 147 Miss. 31, 113 So. 173; Mapp v. State, 148 Miss. 739, 114 So. 825; State v. Messer, 142 Miss. 882, 108 So. 145; Ingram v. State, 144 Miss. 726, 111 So. 139; King v. State, 147 Miss. 31, 113 So. 173; McNutt v. State, 143 Miss. 346, 108 So. 721. See, also, 5 C. J. 399; 2 R. C. L. 446; Malcolmson v. Scott, 56 Mich. 459, 23 N.W. 166; Cunningham v. Baker, 104 Ala. 160, 16 So. 68, 53 Am. St. Rep. 27; Chandler v. Rutherford, 101 F. 774, 43 C. C. A. 218.

We respectfully submit, therefore, that the court manifestly erred in refusing to permit the defendant to show such unlawful search of his person, and further submit that, under the statute cited, supra, defining manslaughter, the defendant had a right to resist such unlawful search of his person, and if, while so resisting such made by the officer, Mark Oliver, or John Damberino, or both, he killed Damberino, said homicide was manslaughter only, and that said homicide should have been limited under the instructions of the court to manslaughter only, and then it should have been left to the jury to determine from the evidence whether such homicide was in necessary self-defense or done in the heat of passion. In this way, if it had been submitted to the jury on this proposition, which we urge as a matter of right should have been done, the jury would have had the alternative of convicting the defendant of manslaughter, or acquitting him. As it was, they had the alternative of convicting him of murder or acquitting him.

The court manifestly abused its discretion in not only permitting the state to reopen its case, but suggesting that it do so on the ground that the corpus delicti had not been proven. If we correctly understand the function of the court, it is to orderly direct the case, rule on the competency of evidence, and questions of law submitted to it, being all the while absolutely impartial as to each of the litigants; for if even the court should throw his influence and great wisdom to either side, it can no longer be said that he is maintaining an impartial attitude towards the parties litigant, but, on the contrary, that he has...