Robinson v. State

• Decision Date: 05 April 1937
• Docket Number: 32590
• Citation: 173 So. 451,178 Miss. 568
• Court: Mississippi Supreme Court
• Parties: ROBINSON v. STATE

173 So. 451

178 Miss. 568

ROBINSON v. STATE

No. 32590

Supreme Court of Mississippi

April 5, 1937

Division A

1. GRAND JURY.

Indictment in murder prosecution held not void because grand juror allegedly served both as election commissioner and grand juror in finding and presentment of indictment (Code 1930 secs. 2029, 2031, 2050; Const. 1890, sec. 2).

2. CRIMINAL LAW.

Statute providing for appointment of counsel for a defendant charged with a capital crime in term time or vacation, where he is unable to employ counsel, is mandatory and should be observed by court in capital cases (Laws 1934, chap. 303, amending Code 1930, sec. 1262).

3. CRIMINAL LAW.

In murder prosecution, appointment of counsel by court one day after arraignment wherein accused pleaded not guilty held error, but harmless, where after appointment of counsel accused was permitted to move to quash indictment and challenge competency of grand juror, no request was made for any further action, and there was nothing in record to indicate that accused did not have a fair and impartial jury and trial (Laws 1934, chap. 303, amending Code 1930, sec. 1262).

4. CRIMINAL LAW.

Court would treat application for continuance as having been waived where application appeared in record but did not appear to have been presented to court, no order having been taken thereon.

5. CRIMINAL LAW.

To avail of application for continuance based on absent witnesses, there must be continued diligence at every stage of proceeding.

HON. R E. BENNETT, Judge.

APPEAL from the circuit court of Amite county HON. R. E. BENNETT, Judge.

Willie Robinson was convicted of manslaughter, and he appeals. Affirmed.

Affirmed.

Joe D. Gordon and Jack H. Ewing, both of Liberty, for appellant.

Failure of the court to appoint counsel for appellant until after his arraignment and a substantial part of the trial had transpired was reversible error.

Chapter 303, Laws of 1934; Section 1262, Code of 1930; Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A. L. R. 527; Busby v. State, 170 So. 144; Cooley on Const. Lim. (8 Ed.), pages 700, 701; Sheppard v. State, 165 Ga. 460, 141 S.E. 196; Reliford v. State, 140 Ga. 777, 79 S.E. 1128; McArver v. State, 114 Ga. 514, 40 S.E. 779; Sanchez v. State, 199 Ind. 235, 157 N.E. 1; Batchelor v. State, 189 Ind. 69, 125 N.E. 773; Mitchell v. Commonwealth, 225 Ky. 83, 7 S.W.2d 823; Jackson v. Commonwealth, 215 Ky. 800, 287 S.W. 17; State v. Collins, 104 La. 629, 29 So. 180, 81 Am. St. Rep. 150; State v. Pool, 50 La. Ann. 449, 23 So. 503; People ex rel. Burgess v. Risley, 66 How. Prac. (N. Y.) 67; State ex rel. Tucker v. Davis, 9 Okla.Crim. 94, 44 L. R. A. (N. S.) 1083; Com. v. O'Keefe, 298 Pa. 169, 148 A. 73; Shafer v. Territory, 14 Ariz. 329, 127 P. 746.

Appellant's application for a continuance should have been granted.

Busby v. State, 170 So. 144.

The indictment against appellant should have been quashed on motion of appellant to quash the same.

Section 2050, Code of 1930; Hill v. State, 89 Miss. 23, 42 So. 380.

The state failed to prove that a crime was committed or that appellant committed any crime.

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

The attorneys did not ask for additional time for preparation of the case, except as to the absent witnesses referred to in all application for a continuance and no objection was made to going to trial on the day it started or any other time.

It is said that the court erred in not granting a continuance because of certain absent witnesses which he claimed were material to his defense. There is no order of the court making any disposition of the application for continuance and nothing to show that it was ever brought to the attention of the court. A pleading not shown by the record to have been brought to the attention of the court is treated by this court as having been waived.

Sherrod v. State, 90 Miss. 856, 44 So. 813; Clinton v. State, 163 Miss. 435, 142 So. 17.

But, anyhow, there was no showing of continued diligence as required by the decisions of this court.

Lamar v. State, 63 Miss. 265; Ware v. State, 133 Miss. 837, 98 So. 229; Coward v. State, 158 Miss. 705, 131 So. 254; McKnight v. State, 171 Miss. 152, 157 So. 351.

Appellant is not relieved, by his original showing that the witnesses were out of the state, from producing the witnesses or their affidavits on a motion for new trial.

Coward v. State, 158 Miss. 705.

Appellant's right to challenge the grand jury was accorded him even after he was arraigned and had pleaded to the indictment. So that he lost no right accorded him under the state or federal laws. In other words, he got the full benefit of the law as laid down in Hill v. State, 89 Miss. 23, 42 So. 380, the authority on which he is relying on this proposition. As to the fact that one of the grand jurors was all election commissioner, the appellant has cited no authority to this court which would sustain his contention that an election commissioner does not in fact have the right to sit on a grand jury, nor that an indictment returned by a grand jury, one of whose members was an election commissioner, was subject to quashing.

The defendant, on the facts of this record, could have been convicted of murder, although the court below limited it to manslaughter and appellant was convicted of manslaughter.

Jones v. State, 169 Miss. 292, 152 So. 423.

It is said that there was no malice, no motive and no intent shown. Since the defendant was convicted of manslaughter it is useless to talk about the absence of malice and intent. These elements are never present in manslaughter and motive is not an indispensable element, even in murder. The least that can be said with reference to this homicide is that it resulted from the culpable negligence of the defendant.

We submit that the conviction should be affirmed.

Argued orally by Joe D. Gordon, and Jack H. Ewing, for appellant, and by W. D. Conn, Jr., for the state.

OPINION

McGowen, J.

On an indictment for murder, in the killing of Lucius Davis, appellant was tried, convicted, and sentenced to a term in the penitentiary for the crime of manslaughter, and appeals here.

The record discloses that the appellant was indicted for murder on October 21, 1936. On October 22d, he was arraigned and pleaded not guilty to the indictment. The order of the court on the arraignment does not disclose that he was on that day represented by counsel. On the following day, October 23d, the court entered an order reciting that the "court has appointed and does now appoint Joe D. Gordon and Jack H. Ewing as attorneys to represent the said defendant in this cause." The evidence discloses that, on the day of the arraignment, appellant thought that he had arranged for counsel to represent him. On October 28th, the appellant, through his counsel, filed a motion to quash the indictment on the ground that T. A. Sewell was impaneled, and acted, as a grand juror at the time the appellant was indicted, and that oil October 1st theretofore he had been appointed and duly commissioned as an election commissioner of Amite county. On the day counsel was appointed, Wednesday, October 28th, was set as the date of trial, and on that day the trial proceeded without objection.

In brief, the facts of the killing disclose that on Sunday afternoon, in May, 1936, on the rear porch of a house, unoccupied near a church, there were a number of men drinking and gambling. Appellant offered to sell one of them a pistol, then took it back from him, and pointed at Davis, the deceased, and shot, injuring him fatally. Appellant admitted that he slew Davis and identified the pistol with which the killing was done as his. When the sheriff arrested him some hours after the homicide, the appellant appeared to be intoxicated. The facts of the homicide were not in dispute.

The State, by its instructions, did not undertake to convict the appellant of murder, but submitted the cause to the jury on an instruction for manslaughter on the theory of culpable negligence. Appellant procured instructions on the same line.

1. It will be observed that the record does not disclose that counsel appeared when appellant was arraigned and pleaded not guilty to the indictment. On the following day, after the plea was entered, the court appointed counsel for appellant, who appeared and flied a motion to quash the indictment; and, after that motion was overruled, no point was made to the court on the previous order entered by the court as to the arraignment, in other words, the motion to quash was entertained after the plea to the indictment. There was no objection made, nor was the attention of the court, called to the fact of its failure to have the appellant arraigned after the appointment of counsel. Nor was there any objection entered that counsel had not had time enough to prepare for the trial.

The motion to quash the indictment was based upon the fact that T. A. Sewell, one of the grand jurors, was an acting member of the board of election commissioners at the time he was appointed to serve on the grand jury, and counsel was not appointed until after the grand jury had been discharged. It is the contention, on the motion to quash, that Sewell was incompetent to serve on the grand jury, because he could not while serving as a member...