Rush v. State

Decision Date24 January 1966
Docket NumberNo. 43295,43295
PartiesJames L. RUSH v. STATE of Mississippi.
CourtMississippi Supreme Court

Laurel G. Weir, Philadelphia, for appellant.

Joe T. Patterson, Atty. Gen., by R. Hugo Newcomb, Sr., Asst. Atty. Gen., Jackson, for appellee.

INZER, Justice.

Appellant, James L. Rush, was indicted, tried and convicted in the Circuit Court of Neshoba County on a charge of assault and battery, with the intent to kill and murder Paul Stokes. He was sentenced to serve a term of ten years in the state penitentiary. From this conviction and sentence he appeals to this Court.

Appellant makes the following assignment of errors:

1. The verdict of the jury is contrary to the overwhelming weight of the law and evidence and is not supported by any law or evidence.

2. The Court erred in overuling (sic) the motion for new trial.

3. The Court erred in granting every instruction granted to the State and in refusing every instruction refused appellee as shown by the record.

4. The Court erred in sustaining every objection made by the State and in overruling every instruction refused appellant as shown by the record.

5. The Court erred in refusing appellant a continuance.

6. The Court erred in allowing appellant to be tried on the indictment brought from the files without requiring a new indictment.

7. The Court erred in not causing appellant to be represented by an attorney and in not having him and his attorney present at all times.

8. The judgment of the Court is erroneous for the many other reasons apparent upon the face of the record and to be shown on a hearing of this appeal.

The proof on behalf of the state shows that in April, 1962, appellant was living in a tenant house on the farm of Paul Stokes in Neshoba County. Appellant had made a crop on the farm the year before, but did not contract to make a crop for the year 1962. He was working for Stokes and others when needed. The house in which appellant lived was about three-fourths of a mile from the home of Stokes. On Sunday, April 15, 1962, Stokes went to the house where appellant lived to see appellant about doing some work for his father-in-law the next day. When he reached the house he knocked on the floor of the front porch, and appellant's wife came to the door. Stokes asked where appellant was, and upon being informed that he was in the house, Stokes asked her to tell him to come out. At about that time, appellant came out the door with a 22-caliber rifle in his hand, and said to Stokes, according to the testimony of Stokes, 'I am going to kill you.' Stokes ran around to the rear of the house, and appellant followed him, and shot him between the shoulders. Stokes was knocked to the ground, and appellant threw his rifle down and ran over and jumped on Stokes, and started hitting him. Stokes managed to get up, and appellant picked up the rifle and went back into the house. Stokes started home, and when he was about half way there, appellant came up behind him and shot him two other times. One shot hit Stokes in the right hip and the other in the upper part of the leg. These shots knocked Stokes to the ground, and appellant came up to him and drew the rifle on him, and told him, 'Let's go.' Appellant then made Stokes go back to his house with him. On their way to the house, a car driven by Walter Steele drove up. Appellant pointed the gun at Steele, and waved him back. Steele backed his car to the main road and left. Stokes told appellant that he had to have a doctor, and appellant agreed to go to Stokes' home. They started to Stokes' house, and on their way, they met a car in which Ross Ford and Chet Ford were riding. Appellant waved his rifle at them and told them to go on by. After they reached Stokes' home, they went into the back yard, and Burnice Cook and Adam Stewart drove up into the driveway. Appellant halted them, and after about fifteen to twenty minutes, Cook and Stewart prevailed upon appellant to let Stokes go to the hospital. During all this time, appellant had his rifle drawn on Stokes. Cook then drove Stokes to the hospital, and appellant went went back to his home. Appellant informed Cook and Stewart that he would surrender to the sheriff when he came. Mr. E. G. Barnett, the Sheriff of Neshoba County, received a call about the trouble and went to investigate. He found appellant at his home, and appellant informed him that he had messed up and was ready to go. The rifle was leaning on the door of the porch, and the sheriff picked it up. He then put appellant into his car, and carried him to jail. The sheriff then went back to the home of appellant to make a further investigation. In back of the house he saw a place that looked like some scrambling had taken place. He also saw some spots of blood and found an empty rifle cartridge. He went through the house, but saw no evidence of any disorder therein. He did find some rifle cartridges lying on the bed. He found no evidence of any blood or struggle inside of the house.

Appellant remained in jail from April 15 until in August, when he was carried to the Neshoba County Hospital. He had at that time what is described as a spell or seizure, and it was thought that he had spinal meningitis; however, it developed that he did not have this trouble. Later, on an order of the circuit judge, he was sent to Mississippi State Hospital at Whitfield for a mental examination. He was admitted to the hospital at Whitfield on August 21, 1962, and on August 24, 1962, he was operated on for a hemorrhage of one of the blood vessels in his brain. On October 10, 1962, it was determined by the doctors at the hospital that appellant was insane. Appellant remained in the hospital, and his condition gradually improved until he was discharged from the hospital in November 1963 as being cured and sane. He was returned to the Neshoba County jail where he remained until he was tried.

At the September 1962 Term of the Circuit Court of Neshoba County, appellant was indicted; he was in the mental institution at that time. At the February 1963 Term of the court, appellant was still in the hospital, and the case was continued. At the September 1963 Term of the court, an order was entered on the motion of the district attorney to carry the case against appellant to the files.

After appellant was returned to the jail in Neshoba County, he employed counsel to represent him. This was done several weeks prior to the February 1964 Term of the court at which he was tried. On Thursday of the first week of the February 1964 Term of the court, a motion was sustained to revive the case and restore it to the active criminal docket. On the same date appellant was arraigned and entered a plea of not guilty. The arraignment was in open court, and appellant's counsel was with him at the time he was arraigned. The court fixed the amount of bail bond, and the case was set for trial on Wednesday of the following week.

On the day set for trial, counsel for appellant filed a motion to quash the proceedings and also a motion for continuance. The basis for the motion to quash was that the action of the court retiring the case to the files was taken without appellant being present and that the action reviving the cause or restoring it to the active docket was done in the absence of appellant and his counsel. It was contended that appellant could not be tried on the indictment that had been retired to the files and that the grand jury had refused to reindict appellant. Testimony was taken on this motion, and the trial judge rendered an opinion which was dictated into the record. He held that the defendant and his attorney were present in court when the motion to revive the cause was sustained, and that retiring the case to the files did not amount to nolle prosequi of the indictment. The overruling of this motion to quash is assigned as one of the errors on this appeal. We find that the motion to quash was properly overruled. The passing of an indictment to the files is not an acquittal or a nolle prosequi of the indictment. The district attorney may at any future term of the court move to withdraw the indictment from the files, and the court is at liberty to sustain the same. When the motion is sustained the indictment again becomes a part of the active cases subject to trial. Byrd v. State, 179 Miss. 336, 175 So. 190 (1937); Gordon v. State, 127 Miss. 396, 90 So. 75 (1921).

The court then overruled the motion of the defendant for a continuance, and this action is also assigned as error. The motion as made is as follows:

The adult defendant in the cause, James L. Rush, moves the court to continue this cause until a later date and until the next regular term of this Court for the reasons that several of his vital witnesses to prove vital points in his defense are not present in Court.

The only eyewitness to the alleged crime other than defendant and the prosecuting witness is Elmira Rush, the wife of defendant and he desires her presence in Court to prove that the defendant was insane at the time of the shooting and did not knew right from wrong and that the shooting was justifiable or was without malice aforethought or intent of kill and murder because of actions of the prosecuting witness towards her and that process for her appearance has been diligently issued, but she has not been served with said process and is not present in Court, but she can be here to testify to said facts at the next term of this Court and she is the only witness defendant can prove said facts by.

Defendant Moves the Court to continue this cause to a later date so his vital and necessary witnesses can be present.

It may be readily observed that the motion, as made, does not comply with the provisions of Mississippi Code Annotated section 1520 (1942) relative to continuances. In none of the cases cited by appellant, or in any that we have been able to find, has this Court held...

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12 cases
  • De La Beckwith v. State
    • United States
    • Mississippi Supreme Court
    • December 22, 1997
    ...the district attorney could move at any future term to withdraw it from the files and reactivate the prosecution. Rush v. State, 254 Miss. 641, 182 So.2d 214, 216 (1966). The end of the first indictment on the docket, under MacDonald, supra, and its progeny, closed out any Sixth Amendment s......
  • Harvey v. State, 44669
    • United States
    • Mississippi Supreme Court
    • February 19, 1968
    ...facts related to the subject within the field in which the expert is able to aid the jury with an expert opinion. Rush v. State, 254 Miss. 641, 182 So.2d 214 (1966); Birchett v. Hundermark, 145 Miss. 683, 110 So. 237 (1926). Nevertheless, all facts should be excluded which the jury can inte......
  • Fogleman v. Hubbard
    • United States
    • U.S. District Court — Southern District of Mississippi
    • January 25, 2022
    ... ... only challenging his pretrial detention. Doc. [5]. On March ... 17, 2021, respondent Evan Hubbard (“State”) filed ... the instant motion to dismiss. Doc. [30] ... II ... RELEVANT BACKGROUND ... In the ... Gordon , 90 So. at 95. At that time, the defendant ... may challenge reactivation of the indictment. See , ... e.g. , Rush v. State , 182 So.2d 214, 216-17 ... (Miss. 1966). While passing an indictment to the files is a ... court-approved process, the ... ...
  • State v. Bias
    • United States
    • West Virginia Supreme Court
    • December 10, 1986
    ...5, 18 L.Ed.2d at 7 n. 5 (emphasis added). Cited as an example of a case involving a constitutional procedure was Rush v. State, 254 Miss. 641, 647-48, 182 So.2d 214, 216 (1966), in which the defendant was in a mental institution due to incompetency to stand trial at the time the indictment ......
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