Stennis v. State, 45819

• Decision Date: 27 April 1970
• Docket Number: No. 45819,45819
• Parties: Robert Earl STENNIS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 611

234 So.2d 611

Robert Earl STENNIS v. STATE of Mississippi.

No. 45819.

Supreme Court of Mississippi.

April 27, 1970.

Albert Sidney Johnston, III, Pascagoula, for appellant.

A. F. Summer, Atty. Gen., by Velia Ann Mayer, Special Asst. Atty. Gen., Jackson, for appellee.

BRADY, Justice:

This is an appeal from the Circuit Court of Jackson County, Mississippi, wherein the appellant, Robert Earl Stennis, was indicted for the murder of John Earl Burrell. The appellant was tried, found guilty of manslaughter, and sentenced to twenty years at the Mississippi State Penitentiary. From that judgment this appeal is taken.

It appears from the record that on the night of November 21, 1968, around 8:00 P.M., the deceased, John Earl Burrell, along with Irma Ruth Mitchell, Alberta Caldwell, Ollie Jean Harris and Chester Coley, went to McArthur's place called the 'Blue Flame.' From the testimony of all the witnesses it appears that the appellant went to the table where the group was seated, asked the 'date' of the deceased, Ollie Jean Harris, to dance, and Ollie refused. The appellant went back to his table. A short time later, when John Earl Burrell had gone to the men's room, the appellant again went to the table and asked Ollie Jean Harris to dance. Thereupon Ollie got up and danced with the appellant. After the band finished playing the number, Burrell, displeased, got up and took Ollie Jean from the dance floor. The appellant once more approached the table where the group was seated and attempted in his own fashion to apologize. The appellant and his friend, 'Jabo,' then left the establishment. Approximately five to fifteen minutes later the deceased and Ollie left. The testimony is in conflict as to whether the deceased and Ollie left all 'hugged up' or whether Ollie was trying to restrain Burrell from leaving. Upon reaching the outside, the deceased was confronted by the appellant with 'Jabo' nearby. It is disputed as to whether or not a scuffle ensued but the record discloses that the appellant was waiting outside and had an open knife in his hand and that he 'jugged' the deceased twice, once in the stomach and once in the heart. The appellant then got in his car, drove half a block, turned around, came back, and after Burrell was placed in his car mortally wounded or dead the appellant transported him to the hospital. The stabbing took place at approximately 10:45 P.M. The appellant contends that the reason he 'jugged' the deceased was that the deceased had his hand in his pocket and appeared to be pulling it out with something in it. The record conclusively discloses that the deceased was unarmed.

J. B. Gibson, the Chief of Detectives with the Pascagoula Police Department, testified that he investigated the killing of John Earl Burrell. Upon receipt of a call Mr. Gibson went to the hospital where he found Burrell in the morgue, and a warrant was issued for the arrest of Robert Earl Stennis for the murder of John Earl Burrell. The appellant was arrested by Highway Patrolman Pete Pope. Captain Gibson testified that they advised the appellant he was under arrest upon his arrival at the station and also that they advised appellant of his constitutional rights numerous times, but that the appellant kept talking. At this point in the trial the jury was retired and a thorough examination was made of the testimony to determine whether or not the appellant knowingly and voluntarily, after being advised of his constitutional rights, signed the confession. This hearing was had out of the presence of the jury. The record discloses that the desk sergeant received a telephone call in regard to the incident at 10:47 P.M. Mr. Gibson began his investigation of the case at 11:00 P.M. The appellant was arrested and advised of his rights and a re sume thereof was read to him by Detective J. B. Gibson of the Pascagoula Police Department at approximately 2:35 A.M. The questioning of appellant began at 3:25 A.M. The statement was prepared and at 4:10 A.M. it was signed by the appellant. Appellant had been drinking but in the opinion of the officers who had known him all his life he was not drunk, and his thinking was not impaired. The judge, after much deliberation, decided that the confession was admissible and a copy was placed in the record. However, the record does not disclose that the confession was actually introduced, except for identification, or that it was ever read to the jury. The instructions, which are not contested, permitted the jury to return a verdict of murder and a verdict of manslaughter was returned. The judge sentenced the appellant to twenty years in the Mississippi State Penitentiary, and this appeal is taken therefrom.

The appellant assigns two errors: (1) That the verdict of the jury is against the overwhelming weight of the evidence, and (2) that the trial court erred in allowing the illegally obtained confession admitted into evidence. After a careful review of the record together with the briefs of counsel we consider the first error assigned, that the verdict is against the overwhelming weight of the evidence. There is no dispute in the record that the appellant inflicted the fatal stab wounds upon the deceased, Burrell. Appellant himself concedes this fact but urges that he did so upon the grounds of self-defense. Mamie Williams alone testified that she saw Burrell hit the appellant on the head with his hands. She stated, however, that she did not see a knife or other weapon in Burrell's hands. It is to be noted that Irma Mitchell testified on rebuttal that she did not even see Mamie Williams at the club that night.

Joe McArthur, who operated the 'Blue Flame,' testified that Burrell was waving his hands and trying to get to the appellant. He did not see anything in Burrell's hands at the time he saw the appellant stab Burrell one time. To the contrary, Ollie Jean Harris testified that the appellant 'jugged' Burrell when Burrell was doing nothing to endanger the appellant. Irma Ruth Mitchell, who was with Ollie Jean Harris, John Earl Burrell, Alberta Caldwell and Chester Coley at the 'Blue Flame,' did not see the stabbing but testified that as far as she knew Burrell did not have a knife. Appellant's witness, Joe McArthur, testified that the appellant drew a knife on Burrell when he was in the 'Blue Flame' prior to the time Burrell was stabbed outside. McArthur testified that he told the appellant to put his knife up.

At the outset these conflicts as to material facts, which are definitely believable are for determination by the jury. No error is assigned by either the appellant or the State in the granting of the instructions and, as was stated in McLelland v. State, 204 So.2d 158 (Miss.1967), 'the jury is the sole judge of the credibility of witnesses and the weight and worth of their testimony. * * * We have repeatedly held that the jurors may accept the testimony of some witnesses and refuse that of others, and that they may accept in part and reject in part the evidence on behalf of the State and on behalf of accused. * * * It is not for this Court to pass upon the credibility of witnesses and where the evidence justifies the verdict it must be accepted as having been found worthy of belief.' (204 So.2d at 164.) As reasonable men, the jury had a right to and did accept and act upon the State's evidence together with evidence offered by the appellant. The jury verdict in this cause in our opinion is supported by substantial evidence which is worthy of belief.

As pointed out in the brief for the State, the appellant cites no authority in support of this error. However, we take judicial knowledge of the decisions of this Court in reference thereto. In order to justify the appellant's contenton of self-defense and that the overwhelming weight of the evidence is in support thereof, the record must disclose, which it fails to do, that the appellant had a reasonable apprehension of a design or plan on the part of the deceased to kill him or to do great bodily harm, and furthermore that there was imminent danger of...