Schwarzauer v. State, No. 49389
| Court | United States State Supreme Court of Mississippi |
| Writing for the Court | BROOM; GILLESPIE |
| Citation | 339 So.2d 980 |
| Parties | Thomas M. SCHWARZAUER v. STATE of Mississippi. |
| Docket Number | No. 49389 |
| Decision Date | 16 November 1976 |
Page 980
v.
STATE of Mississippi.
Rehearing Denied Dec. 14, 1976.
Royals & Taylor, Robert H. Taylor, Jr., Thomas E. Royals, Jackson, for appellant.
A. F. Summer, Atty. Gen. by Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.
Before GILLESPIE, SUGG and BROOM, JJ.
BROOM, Justice, for the Court:
Double jeopardy is urged as ground for reversal of defendant's manslaughter conviction which resulted from his second trial on a murder indictment in the Circuit Court of the First Judicial District of Hinds County. Sentence imposed was fifteen years imprisonment, which we affirm.
Defendant (appellant, Schwarzauer) shot and killed one Rogers near midnight December 15, 1974, at the Out-Of-Bounds Lounge in Jackson. Differences between the two men existed concerning Rogers' alleged failure to keep up-to-date his support payments for defendant's step-daughter (Rogers' daughter). The episode occurred in the parking lot after the parties had differences with each other inside the lounge. Defendant says that Rogers physically assaulted him in the parking lot and in response he (defendant) armed himself with a rifle and approached Rogers, who was inside a truck. According to the defendant, his rifle accidently discharged, resulting in Rogers' death.
The murder indictment against the defendant was returned in March 1975 and
Page 981
trial began May 21, 1975. Next day, after issue was joined and the state put on some proof, the circuit judge declared a mistrial because of the fact that during the night two jurors became separated from the others and visited in the motel lobby. Previously the judge had sequestered the jurors and expressly instructed them to remain together. Trial was accordingly aborted and delayed until the September Term before another trial judge, who overruled the defendant's motion to dismiss. It is not absolutely clear as to whether the defendant actually objected to the mistrial when ordered, but the presiding judge (of the first trial) later testified that he didn't remember any objection. In support of the motion to dismiss, defense counsel testified that at the first trial when advised that a mistrial was under consideration he said to the judge in chambers, 'we don't want a mistrial. We think we've got a winner and we'd just as soon go ahead.' At the time the mistrial was ordered, no record was made of any objection or response of the defendant. The motion to dismiss (at the second trial) was based on the defendant's argument of double jeopardy 'in violation of the Fifth Amendment of the United States...To continue reading
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Puckett v. State, No. 96-DP-00867-SCT.
...identified as hearing the alleged comments. s 19. Puckett cites Smith v. State, 198 So.2d 220 (Miss.1967), Schwarzauer v. State, 339 So.2d 980 (Miss.1976), and Vickery v. State, 535 So.2d 1371 (Miss.1988), in support of his argument that "[b]ecause of the errant behavior of Venireman No. 15......
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Evans v. State, No. 93-DP-01173-SCT
...declare a mistrial, there must have been an abuse of discretion. Jones v. State, 398 So.2d 1312, 1318 (Miss.1981); Schwarzauer v. State, 339 So.2d 980, 982 ¶ 115. Trial judges in this state are further guided by Uniform Criminal Rules of Circuit Court Practice 5.154: The court shall declare......
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King v. State, No. 07-KA-59203
...a criminal case less than capital, is not error." Id. (emphasis supplied by this Court in Stringer v. State ). In Schwarzauer v. State, 339 So.2d 980, 981 (Miss.1976), this Court concluded that a determination of whether an improper separation of sequestered jurors resulted in prejudice mus......
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Walker v. State, No. 92-DP-00568-SCT
...than anyone else) when a trial should be discontinued." Davis v. State, 530 So.2d 694, 697 (Miss.1988), citing Schwarzauer v. State, 339 So.2d 980, 982 Walker indicates that Tillie Edwards, the victim's grandmother and State's witness, became emotional when asked to identify photographs of ......
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Walker v. State, 92-DP-00568-SCT
...than anyone else) when a trial should be discontinued." Davis v. State, 530 So.2d 694, 697 (Miss.1988), citing Schwarzauer v. State, 339 So.2d 980, 982 Walker indicates that Tillie Edwards, the victim's grandmother and State's witness, became emotional when asked to identify photographs of ......
-
King v. State, 07-KA-59203
...a criminal case less than capital, is not error." Id. (emphasis supplied by this Court in Stringer v. State ). In Schwarzauer v. State, 339 So.2d 980, 981 (Miss.1976), this Court concluded that a determination of whether an improper separation of sequestered jurors resulted in prejudice mus......
-
Puckett v. State, 96-DP-00867-SCT.
...identified as hearing the alleged comments. s 19. Puckett cites Smith v. State, 198 So.2d 220 (Miss.1967), Schwarzauer v. State, 339 So.2d 980 (Miss.1976), and Vickery v. State, 535 So.2d 1371 (Miss.1988), in support of his argument that "[b]ecause of the errant behavior of Venireman No. 15......
-
Evans v. State, No. 93-DP-01173-SCT
...declare a mistrial, there must have been an abuse of discretion. Jones v. State, 398 So.2d 1312, 1318 (Miss.1981); Schwarzauer v. State, 339 So.2d 980, 982 ¶ 115. Trial judges in this state are further guided by Uniform Criminal Rules of Circuit Court Practice 5.154: The court shall declare......