Roney v. State

• Decision Date: 13 June 1932
• Docket Number: 30063
• Citation: 142 So. 475,167 Miss. 532
• Court: Mississippi Supreme Court
• Parties: RONEY v. STATE

142 So. 475

167 Miss. 532

RONEY v. STATE

No. 30063

Supreme Court of Mississippi, Division A

June 13, 1932

Suggestion Of Error Overruled, October 3, 1932.

(Division A.)

1. CRIMINAL LAW.

It is court's sole province to announce law to jury.

2. CRIMINAL LAW.

Error if any, in sustaining objection to question to jurors on voir dire examination held not to warrant reversal, where question was in form of statement of principle of law (Code 1930 section 2068).

3. CRIMINAL LAW.

Reasonable doubt in mind of one juror does not entitle defendant to acquittal.

4 JURY.

Counsel's question to jury, on voir dire examination, referring to material allegations of indictment, without setting forth such allegations, held properly excluded (Code 1930, section 2068).

5. CRIMINAL LAW.

Absence of evidence to support instruction relative to shooting by codefendants held not to require reversal, where there was direct evidence that defendant himself fired shot.

6. CRIMINAL LAW.

Where defendant on cross-examination admitted previous conviction of grand larceny, fact that jurors were informed by further cross-examination that defendant had served penitentiary term held not to warrant reversal (Code 1930, section 1532).

HON. W. A. WHITE, Judge.

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

Herbert Roney was convicted of assault and battery with intent to kill, and he appeals. Affirmed.

Affirmed.

Mize, Mize & Thompson, of Gulfport, for appellant.

The court erred in refusing to permit counsel for defendant to interrogate the jurors on their voir dire examination. There were only four questions that were sought to be asked, and to each of these an objection was improperly sustained. The fact that the court had asked the jury if they would follow the instructions of the court and render a fair and impartial trial does not cure this error because the statute specifically authorizes counsel for the parties to ask the jurors questions, and this statute was passed to cure the misconception that a great many trial judges have that when a judge asked the jury if they will follow the instructions of the court and render a fair and impartial trial that that should be an end to it.

Sec. 2068, Code of 1930.

The statute would serve no purpose if this court did not hold that it was reversible error to deny a defendant the right given him by this statute.

House v. State, 98 So. 156, 133 Miss. 675; Jones v. State, 98 So. 150, 133 Miss. 684.

The court erred in instructing the jury to the effect that it is not necessary that the jury believe that the defendant, Herbert Roney, actually fired the gun at and shot Will Massey, but that it was sufficient if the jury believe that he aided or abetted Jessie Robinson or Mart West or Buck West in the shooting of Will Massey, if the jury believe that either Jessie Robinson, Mart West or Buck West shot him.

Oliver v. State, 39 Miss. 526; Spradley v. State, 80 Miss. 82; Cooper v. State, 80 Miss. 175.

Section 1532 of the Code provides that any witness may be shown to have been convicted of crime, and if he denies it then he may be contradicted by the record, but the details are not admissible and he cannot be examined as to such details--only the fact that the witness was convicted is admissible.

Powers v. State, 126 So. 12; Walker v. State, 151 Miss. 862, 119 So. 796; Dodd v. State, 45 So. 863.

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

While, as stated in the case of Hale v. State, 72 Miss. 140, a defendant has the right to make such examination as would enable him to decide if there was ground for exercising his great right to peremptorily challenge and that he is given considerable latitude in his questioning to determine the exact state of a juror's mind and feelings, yet the questions sought to be propounded to the jury in the case at bar on the voir dire examination is not calculated to arrive at the jury's state of mind.

It was not error to refuse to allow defendant to examine a juror on his voir dire examination as to his conception of a reasonable doubt.

Fugate v. State, 85 Miss. 86.

The third alleged error complained of is the action of the district attorney in examining the appellant, Roney, with reference to his conviction for grand larceny and that he served a term in the penitentiary for it. Section 1532 of the Mississippi Code of 1930, provides that a witness may be examined with reference to his conviction of any crime.

The only thing admissible under this statute is the fact of the conviction of the crime and what crime, but the statute does not authorize the giving in evidence of the details of the crime, and I submit that that is all that this cross-examination does.

Powers v. State, 156 Miss. 316, 126 So. 12.

OPINION

Cook, J.

The appellant, Herbert Roney, and three others, were jointly indicted for an assault and battery with intent to kill and murder one Will Massey. A severance was granted, and upon a separate trial of the appellant he was convicted and sentenced to serve a term of four years in the state penitentiary; and from this conviction and sentence, this appeal was prosecuted.

Will Massey, the party alleged to have been assaulted, testified, in substance, that about ten o'clock at night, just after he had closed his place of business in Lyman, Mississippi, the appellant and one Mart West, who were armed with guns, accosted him and forced him into a car, saying to him, "We will show you about watching after us." That they drove to a point about four miles in the country, where they carried him into the woods, and after requiring him to take off his clothing, proceeded to whip him with large switches cut near by. He further testified that the appellant and the defendant Buck West kept him covered by guns, while the defendants Jesse Robertson and Mart West applied the lashes; that the whipping became so severe he broke loose and attempted to escape by running; that when he had run only a short distance, the appellant yelled to him to "Stop, I will kill you, " and immediately thereafter shot him down with buckshots, the bullets taking effect in his leg; that Mart West then ran up and hit him in the face with a pine stick, and they then carried him back to the place where they had begun whipping him and proceeded with the whipping. He further testified that they then placed him in their car and informed him that they would be carrying him to a hospital, and that Mart West told him that he must say that he had been shot in his hen house, and, "If you don't say so, I have witnesses enough to prove you were there;" and that he finally persuaded them to carry him to his home instead of a hospital. As to the seizure of Will Massey by the appellant and his codefendants and his being returned to his home by them severely beaten and otherwise wounded, he was corroborated by his wife, Clementine Massey.

The defense offered was an alibi. The appellant and others testified that the appellant was at his home on the night of the alleged shooting until Mart West and Jesse Robertson came there with the wounded negro in the car; that they came there for the purpose of borrowing money to buy gas to carry the wounded man to a hospital; and that the appellant and Buck West there joined the other two defendants.

The appellant first assigns as error the action of the court below in sustaining objections to certain questions sought to...