Spears v. State

• Decision Date: 17 May 1965
• Docket Number: No. 43455,43455
• Parties: Gerald (Jack) SPEARS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 158

175 So.2d 158

253 Miss. 108

Gerald (Jack) SPEARS v. STATE of Mississippi.

No. 43455.

Supreme Court of Mississippi.

May 17, 1965.

H. T. Carter, Columbus, for appellant.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.

BRADY, Justice.

This is an appeal from the Circuit Court of Attala County, where the appellant was indicted, tried and convicted for using obscene, indecent language over the telephone, in violation of Mississippi Code Annotated section 2291.5 (Supp.1964), as enacted at the 1964 regular session of the Legislature of Mississippi. The appellant was sentenced to serve two years in the state penitentiary. From this judgment and sentence the appellant appeals.

Briefly, the pertinent facts in this case are these: On August 10, 1964, at approximately two o'clock in the afternoon, Mrs. W. S. Fowler, when her husband was absent, and while working at the Dr. Pepper and Seven-Up Bottling Company in Kosciusko, Mississippi, which is operated by Mr. Fowler, received a telephone call from an unidentified and unknown man who made a very vulgar, obscene, and indecent proposal to her. She demanded to know who was calling but the man refused to identify himself. Because of a prearranged plan entered into several weeks before between Mr. and Mrs. Fowler and another married couple of Kosciusko, she agreed to meet the caller who had made the insulting proposition to her, stating that she could not meet him that night, but that the following day and night her husband would be out of town and she could meet him on a certain road leading to the Moose Club, at 8:00 P.M.

Upon her husband's return to the plant she told him about the conversation and immediately he called the sheriff. Plans were made so that the sheriff could apprehend the caller. On the designated night, because of a storm, she did not meet him, but after it had subsided he again called her while she was in her home and she invited him to come to the house, which he did. He entered the house by a rear door and went into the kitchen where Mrs. Fowler was working, and she went out of the kitchen into the dining room, where her husband and the sheriff were waiting, and on into her bedroom. When he entered the dining room he looked down the muzzle of a double-barreled shotgun which Mr. Fowler had aimed at his head. The appellant was arrested and taken to jail.

On the trial of the case the appellant admitted calling Mrs. Fowler both times and admitted making the engagement or date with her, but he denied using vulgar, obscene and insulting language, which was charged in the indictment and introduced by Mrs. Fowler by writing the words upon a piece or paper which was subsequently shown to the jury. Leaving out the formal parts of the indictment, the language in the indictment is as follows:

'(D)id wilfully, unlawfully, and feloniously use profane, vulgar, indecent, obscene and insulting language over the telephone during the course of a telephone conversation which he the said Gerald 'Jack' Spears originated and which was directed to and received by Mrs. Sara Fowler in violation of Section 2291.5 of the Mississippi Code of 1942, Recompiled, As Amended; said language being too filthy to be spread upon the records of this court but expressing in obscene words the desire of the defendant to have sexual intercourse with the said Mrs. Sara Fowler; against the peace and dignity of the State of Mississippi.'

Prior to the selection of a jury, the appellant filed a motion to quash the indictment and, in support thereof, contended that the indictment wholly fails to charge in substance any crime against the appellant and especially under section 2291.5, in that said indictment does not specify the obscene language allegedly used by defendant in the conversation with Mrs. Sara Fowler over the telephone, which language is the gist of the offense contemplated by the statute and which language was unknown to defendant. Defendant asserts he cannot properly defend the case because he does not know what obscene language was allegedly used; that the indictment is not drawn in such a manner as to advise the defendant of the obscene language allegedly used, and is vague and uncertain; since the alleged obscene language is not set out in the indictment, the defendant, if tried on this indictment, could not plead former jeopardy in the event he was indicted again.

Appellant's motion to quash was overruled by the trial court and the case proceeded to trial. On the voir dire the appellant, through his attorney, objected to the district attorney bringing up any other telephone calls, and moved that the jury panel be quashed and a mistrial be entered. This motion likewise was overruled, the court stating:

'There has been no statement to the jury that any other calls were made by this defendant, or by anybody else, and the Court will further say that the jury is not to get the impression that there was any other calls. I didn't get that impression, and the Court says that there has been no statement made to the effect that any other calls were made.'

Numerous objections were made by the appellant in the trial of the case, some of which are assigned as errors, and the appellant also made several motions for a mistrial, all of which were overruled. After the verdict and judgment were entered in this case, a motion for a new trial was made by the appellant which likewise was overruled. There are numerous errors assigned by the appellant, several of which constitute reversible error. However, we will concern ourselves not only with those which are reversible but also those which, on a retrial of this case, should not be committed again.

The first error assigned is that the trial court erred in overruling appellant's motion to quash the indictment. The writer of this opinion does not agree that the lower court erred in overruling appellant's motion to quash the indictment, but concurs with the dissenting opinion on this particular error, written by Justice Gillespie in this cause, in that the writer is of the opinion that the indictment is sufficient to sustain the conviction. A large majority of this Court concludes that the appellant's motion to quash the indictment should have been sustained, and this opinion expresses their conclusions on this point.

The constitutional right of one accused of violating the law to be informed of the nature and cause of his accusations has long been recognized in this Court. In the case of Walton v. State, 64 Miss. 207, 8 So. 171 (1886), Jesse Walton was tried and convicted on an indictment charging as follows:

(T)hat he 'did unlawfully in public place, to-wit: on the streets of the town of Sardis, and in the present of two persons, profanely curse and swear, contrary to the form of the statute in such case made and provided.'

The Court, speaking through Chief Justice Cooper, in an opinion of but twenty-eight words, acutely stated: 'The motion to quash the indictment should have been sustained. The words spoken constituted the gist of the offense, and should have been set out in the indictment.' He cited '2 Bish. Crim.Proc. Sec. 123; 1 Whart. Crim.Law 351; Steuer v. State, 59 Wis. 472, 18 N.W.Rep. 433.' This Court has been astute down through the years in requiring that the constitutional right of the accused be protected and safeguarded in this regard.

In Williams v. State, 130 Miss. 827, 94 So. 882 (1922), which deals with obscene matter which appeared in a publication called the 'Wampus Cat,' the indictment was based upon what is now Mississippi Code Annotated section 2288 (1956), which prohibited 'obscene or indecent book(s), writing(s) * * *.' The appellee urges that the decision in the Williams case is controlling here. In the Williams case the affidavit was attacked on the ground that the exact language complained of was not set out in the affidavit. In that case Justice Sykes, speaking for a majority of the Court, said:

'If timely objection had been made it would perhaps have been the duty of the state to amend the affidavit by more fully describing the alleged obscene matter which appears to be the whole or a part of a publication called the Wampus Cat, and to have either set out in full the obscene matter therein, or allege that it was too obscene to be spread upon the records of the court.' (130 Miss. at 843, 94 So. at 884.)

This case is distinguishable from the case at bar in two regards: First, in the Williams case the timely objection was not made, but in the case at bar it is made; and second, the language complained of in the Williams case is written language which occurs in a publication, and the specifying of the language from a publication could be far more difficult than when certain specific indecent, vulgar and obscene words are used.

Appellee urges the rule to be that the general purport and tenor of the language (1) should be set forth, or (2) should be set forth in haec verba; or (3) it must be alleged in the indictment or affidavit that the matter is too voluminous or too scandalous to be set out in the record of the court.

Since the decision of the Williams case in 1922, this Court has followed the general rule as represented by the majority rather than the rule as stated in the dissenting opinion.

In the case of Love v. State, 211 Miss. 606, 52 So.2d 470 (1951), this Court in a per curiam opinion, speaking through Justice W. N. Ethridge, stated:

'The established rule is stated in 27 Am.Jur., Indictments and Informations, Sec. 54, as follows: 'It is the constitutional right of the accused, under the organic law of the nation and of the several states, 'to be informed of the nature and cause of the accusation' against him, and under these provisions, the accused is entitled to a plain statement of the charge against him. It is fundamental, of course, that an indictment, to be effective as such, must set forth the constituent elements of a...