Smith v. State, 45408
| Decision Date | 09 June 1969 |
| Docket Number | No. 45408,45408 |
| Citation | 223 So.2d 657 |
| Parties | Bill SMITH v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Carl E. Berry, Jr., Hattiesburg, for appellant.
Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
The appellant, William Thomas (Bill) Smith, was convicted in the Circuit Court of Forrest County of the murder of Vernon Dahmer and was sentenced to life imprisonment in the state penitentiary.
Dahmer, a Negro, lived with his wife and three children in a rural community near Hattiesburg. Dahmer's wife testified that she was awakened about two o'clock a.m. on the night of January 10, 1966, by the constant blowing of a car horn and gunshots coming into their home. She saw that the front part of the house was on fire, heard a window break, and then saw the living room explode in flames. Dahmer helped his wife and children out of windows in the back of the house, grabbed his shotgun, and fired at the attackers, not knowing whether they would try to enter the house or not.
Both the home and Dahmer's nearby store were completely destroyed by fire. Dahmer received second degree burns about his arms and face and died that afternoon in the hospital. His death was directly caused by thermal injury from burns of the respiratory tract, peripheral vascular collapse or shock, and hypoxea (decrease in oxygen).
The appellant contends that the trial judge committed five errors during the trial of this case. Three of these assigned errors merit careful consideration and discussion.
They are:
I.
'The Lower Court erred in overruling the appellant's motion to quash the special venire and regular petit jury panel from which jurors were selected to serve in the trial of the appellant in the court below.
II.
'The Lower Court erred in allowing the State to introduce evidence, notwithstanding objections of the Appellant, concerning matters which were not part of the res gestae nor any conspiracy in connection with the crime charged against the Appellant.
III.
'The Lower Court erred in allowing the District Attorney, over the timely objections of the accused, by his Attorney, to make highly prejudicial statements in his closing argument to the jury, unsupported by evidence.'
The appellant, in his motion to quash the special venire drawn on July 9, 1968, and the regular petit jury panel drawn for the second week of the July 1968 term, made two general contentions. He alleged that the five compartments of the jury box were not filled with names composing a fair and adequate representation of both sexes, and, secondly, that:
'(B)ecause of the failure of certain members of the Board of Supervisors of Forrest County, Mississippi, to comply with the statutes regulating and directing the procuring, listing and having filed with the Circuit Clerk, the list of jurors placed in the jury box and the separate compartments therein, and certifying said list to the Clerk of the Court, and for other errors committed which represented a drastic departure from the statutory laws pertaining to compiling, drawing, listing and certifying of said prospective jurors, the aforementioned Special Venire and regular Jury panel should be by this Honorable Court quashed and a new Venire drawn from the jury box and five compartments therein which have been selected and placed in said jury box and compartments, and drawn according to law.'
The five supervisors of Forrest County were called as witnesses by the appellant, and each testified how he went about marking and selecting the names of prospective jurors on the voter registration books, who typed up the list marked or prepared by him, and the procedure in placing the names of the prospective jurors in each compartment of the jury box. Each supervisor testified that he individually selected names from the poll books but that these names were later put on the minutes of the board of supervisors.
Apparently the appellant's contentions are that the five members of the board of supervisors should not have individually selected names, but should have jointly selected the names of prospective jurors at a regular meeting of the board; that the jury lists should have been recorded on the minutes of the board on the very day that the selections were made and not later during the term; and finally that the lists were not properly certified to the circuit clerk.
In answering these contentions, the State put on Clyde W. Easterling, chancery clerk; Mrs. Eloyse Dennis, deputy chancery clerk and secretary of the board of supervisors; and Theron C. Lynd, circuit clerk.
Mr. Easterling testified that for the 16 1/2 years that he had been chancery clerk that his office had always certified the original copy of the jury list to the circuit clerk and retained a copy to go on the board's minutes. He further testified that Mrs. Dennis, a deputy chancery clerk for seven years and now, in addition, secretary of the board of supervisors, prepared these lists from notes or lists handed to her by the five members of the board of supervisors. He further testified that it was physically impossible sometimes to record the lists on the minutes of the board on the very day that the selections were made, but that the minutes of the board were opened on the first Monday of each month and that the board did not adjourn until the last of each month, that the lists were always on the minutes before adjournment of the board, and that the president of the board of supervisors always signed the minutes as required by law before adjournment of the monthly meeting.
Mrs. Dennis testified that she handled all of the minutes of the board, that after the jury lists were typed up and certified to the circuit clerk, the usual procedure was to put them on the minutes of the board 'closest to the date that they are certified over there.' She testified that she prepared three copies of each jury list and distributed the copies in this way:
'One of them is certified to the Circuit Clerk, one of them is left in Mr. Easterling's office to be put in the Minutes of the Board of Supervisors, and the original copy is given to Mr. Lynd to cut up and put in the jury box.'
She further testified that the list of the special venire and the list for the second week of the July 1968 term...
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