Shimniok v. State

• Decision Date: 13 November 1944
• Docket Number: 35619.
• Citation: 197 Miss. 179,19 So.2d 760
• Court: Mississippi Supreme Court
• Parties: SHIMNIOK et al. v. STATE.

19 So.2d 760

197 Miss. 179

SHIMNIOK et al. v. STATE.

No. 35619.

Supreme Court of Mississippi

November 13, 1944

J V. Gipson and C. A. Rogers, both of Meridian, for appellants.

Greek L. Rice, Atty. Gen., by R. O. Arrington, Asst. Atty. Gen for appellee.

ROBERDS Justice.

Appellants were indicted, tried and convicted of the murder of Tom S Boykin in Wayne County, Mississippi, and sentenced to death.

Diligent counsel for appellants assign twenty-five errors on this appeal. They are condensed and embraced within those hereinafter passed upon.

The trial judge denied a motion of appellants for a change of venue. Assignments one to seven relate to that action. It is strongly urged that the denial of the motion was an abuse of discretion. Appellants made this showing in support of their motion: It set out that Tom S. Boykin was ex-sheriff of Wayne County and a popular man therein, and for a number of years had been engaged in the timber and turpentine business, which carried him to different parts of the county, and that he had a number of people in his employ; that Shimniok was a resident of Wisconsin and Leemon a resident of Alabama, and strangers in Wayne County; that prejudice had been engendered against them in that county by articles which had appeared in the Wayne County News, a weekly newspaper, and the only paper, published in that county; that appellants were apprehended in the State of Georgia and confined, not in Wayne County, but at Meridian in Lauderdale County under order of the court; that their counsel had talked with a number of citizens of Wayne County and the feeling was general that appellants were guilty and should receive the death sentence; that because of this prejudice and ill-will appellants could not get a fair trial in Wayne County. This motion and its allegations were supported by affidavits of the two attorneys for appellants.

Appellants introduced clippings from six issues of the above paper. The one of November 18, 1943, gave an account of the Boykin funeral; said a large number of sorrowing friends were present, beautiful tributes paid decedent and many flowers brought to his last resting place. It then gave an account of the killing of Boykin as then known and undertook to give a description of the unknown assailants. That issue contained an editorial tribute to Mr. Boykin.

The November 25th issue told of the arrest of appellants at La Grange, Ga., and of their return to Mississippi, and of a purported confession by them that they had killed Mr. Boykin and robbed him of $80, and that Boykin's gasoline ration card and pistol were found in their possession; that Mr. Boykin had picked them up in his car and given them a ride and he had been hit upon the head with a black-jack and his throat had been cut.

December 2nd issue recounted that Judge Arthur Busby had identified one of appellants as one who tried to flag him for a ride; that appellants had stated they remembered the offer of a ride with Judge Busby but did not accept because just before reaching them Judge Busby had picked up another person; that they had fashioned a black-jack at Meridian the night before the killing.

The December 9th paper said the jury for the January term would be drawn December 20th, and that the principal case for trial at the term would be that of appellants "for the highway murder of former sheriff Tom Boykin"; that reports from Meridian were that Shimniok spent his time in jail modeling airplanes and reading current magazines; that until recently he had the reputation of being a good sailor, but both were absent from duty without leave; that when arrested they had calmly related the killing of Mr. Boykin by hitting him in the head and cutting his throat; that Shimniok, instead of being emotional over the crime, seemed to be the normal "18-year-old youth who enters the outside world too soon, unprepared to cope with its trials and problems either from a background of experience and education or association * * *"; that he had a good appetite and good humor and appeared to look to the coming court with untroubled mind.

The December 23rd issue stated that the jurors for the January term of circuit court had been summoned and that the only case of importance for trial at that term "will be the trial of two sailors, Shimniok and Leemon, for the murder of former sheriff Tom S. Boykin."

Some of these articles had immediately above them, in black type of a quarter to a half inch in size, headings suggestive of the contents of the articles, the most glaring of which being "Killers of Tom Boykin arrested in La Grange, Ga.; Returned to State."

It was shown that this paper had a general circulation in Wayne County.

Appellants also introduced the order of the circuit judge for confinement of appellants in the Lauderdale County jail, and especially that part thereof, giving as a reason for its issuance, that it had "been made to appear to the court for reasons of public safety and public welfare * * *"; that appellants should be so confined. This was all the proof of appellants in support of their motion. No witness was placed upon the stand by them.

In opposition to the motion the State introduced the chancery clerk, sheriff, the five members of the board of supervisors, three farmers from different parts of the county; one witness engaged in the sawmill business and farming, and one engaged in the business of repairing refrigerators, which business carried him to all sections of the county. All of these witnesses testified, in substance, that they were familiar with the feeling and sentiments of the people of the county, and that the case had not been prejudged by the public, and that in their opinion appellants could obtain a fair and impartial trial before a jury in Wayne County, selected in the usual way in such cases. Most of them had read some, or all, of the articles in the Wayne County News, but some had not read any of them, and some were not subscribers for that paper. All were subject to extensive and intensive cross examination. It was shown also that papers published outside of Wayne County, having circulation in Wayne and other counties in that circuit court judicial district, had carried accounts of this tragedy. Cross examination of the foregoing state witnesses also developed that at the time of such examination there were twelve highway patrolmen in uniform, with pistols in their scabbards as usually worn, and three deputies to the sheriff, in the courtroom, and that all persons entering the courtroom were being searched for weapons.

It was further shown that Wayne County covers an area of thirty-six by forty miles; that it has no large municipality therein, the population being mostly rural and scattered generally throughout the county, and that Mr. Boykin lived, and the crime occurred, near the south boundary of the county.

Upon this evidence, the trial judge denied the motion. The rule for our guidance in such cases was stated in Wexler v. State, 167 Miss. 464, 142 So. 501, 503, in this language: "The granting of a change of venue is so largely in the discretion of the trial court that a judgment or conviction will not be reversed on appeal, on the ground that a change of venue was refused, unless it clearly appears that the trial court abused its discretion." Dalton v. State, 141 Miss. 841, 105 So. 784. Was that discretion abused in this case? It will be noted there is no proof whatever, except mere surmise, that appellants could not obtain a fair trial. On the other hand, twelve citizens of the county testified positively they knew of no reason why an unbiased jury could not be secured and a fair trial had.

While the trial judge, when passing upon this motion, did not have before him the benefit of the voir dire examination of prospective jurors, and the result of the effort to obtain a trial jury, and the evidence on the merits of the case, we have all of that before us now, and it is proper and helpful that we consider it. Shelton v. State, 156 Miss. 612, 126 So. 390. One hundred and fifty jurors were summoned from the county at large, in equal numbers from the five supervisor districts under a writ of special venire. Out of this number, only fifty-four were examined before a qualified jury was obtained. Of those examined, twenty-two were excused by the court. Of the twenty-two, ten had opinions of guilt or innocence of defendants, and seven were opposed to capital punishment, the remaining five being excused for other reasons. Of those submitted by the Judge, the State excused eight and the defendants twelve peremptorily. It is thus seen that no great difficulty was met in selecting twelve men who, under oath, swore they could and would give the defendants a fair and impartial trial. It might be added that each prospective and accepted juror underwent a most searching examination at the hands of counsel for defendants. Great latitude was indulged them by the court in that respect. The trial judge himself was most thorough and cautious in qualifying the jurors. In testing the fairness or bias of the jurors, we may also look to the verdict they reached viewed in the light of the evidence on the merits as a completed trial. We have done that and direct attention to the recital of the evidence appearing hereinafter in this opinion. Under these circumstances, we cannot say the trial judge abused his discretion. He had all the witnesses on the motion and the qualifying jurors before him and was in better position than we are to judge of their credibility.

In the course of the voir dire examination, the court asked the prospective jurors, as a part of a rather long question "Now, gentlemen, if the law authorizes it and the evidence justifies it, would any of you gentlemen...