Stokes v. State, 41694

• Decision Date: 06 March 1961
• Docket Number: No. 41694,41694
• Citation: 240 Miss. 453,128 So.2d 341
• Parties: William STOKES v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 341

128 So.2d 341

240 Miss. 453

William STOKES v. STATE of Mississippi.

No. 41694.

Supreme Court of Mississippi.

March 6, 1961.

H. C. Moynihan, Wilmer O. Dillard, Stewart J. Gilchrist, Laurel, for appellant.

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

McELROY, Justice.

This case originated in the Second Judicial District of Jones County, Mississippi. William Stokes was indicted on the twenty-fourth day of March, 1960. The indictment charged that he, on or about the third day of March, 1960, in the county and district aforesaid, did wilfully and unlawfully, feloniously and with malice aforethought, kill and murder one Mrs. Eula Clark, a human being, and against the peace and dignity of the State of Mississippi.

This case was argued before the Supreme Court December 5, 1960, with the understanding that the record was to be amended and the attorney general was permitted to submit his brief at a later date. The amendment to the record was filed December 12, 1960, and the brief of the attorney general for the appellee was filed January 30, 1961.

On the morning of March 3, 1960, the body of Mrs. Eula Clark was found in the back portion of her store, known as Clark's Grocery, on Meridian Avenue in Laurel, Second Judicial District of Jones County, Mississippi. The Laurel Police Department was notified and reported to the store where they had the body examined by a medical doctor. The examination revealed that Mrs. Clark had died from wounds in her chest apparently inflicted by a knife or other sharp instrument.

The front portion of the building in which the body was found was used for a small store, and there is a step-up of about four feet leading into the back of the building, the first room being the portion used as a kitchen. The next room immediately to the left going into the kitchen was formerly a bedroom. The next room turned to the right and was formerly a bedroom and turning to the right again is the portion used as a bedroom. The deceased was found in this bedroom in the doorway of the bathroom.

The accused was seen on Joe Wheeler Avenue, which runs parallel to Meridian Avenue and is one block away, and about one block north from the street running east and west and parallel to the Clark's Grocery. The accused was seen by Leroy Brown who testified that he had on an army coat and his pants and everything were full of blood. He passed him running. They spoke to each other and he proceeded on to his cousin's store known as Dicky Boy's Place. The local police were notified and they proceeded to commence a search for the accused who was apprehended in Marianna, Florida. He was flown to Jackson, Mississippi, by Mississippi officers on March 21 and was taken to the highway patrol building where the following confession was obtained. 'He said that on Thursday morning, the 3rd of March, that he got up and went and got some whiskey and started drinking, and that he left from the southern part of town, I don't remember the street number, and went up to Dicky Boy's shop, who is a first cousin of his. He said Dicky Boy's Place was not open and he went from there around to Mrs. Clark's store, and when he got around there he went up to the door and there were two colored ladies in the store so he turned around and went back to Dicky Boy's shop and that Dicky Boy was still not open, and he turned around and came back to Mrs. Clark's store, came in the door and Mrs. Clark started walking to the kitchen, or to the back of the store, and that he followed her and got in an argument with her and hit her with his fist and then he stabbed her with a knife two or three times, that he was so drunk he couldn't remember how many times, and that he then got her by the hands and drug her to the bathroom door, and then went out through the front door of the store and went back around to Dicky Boy's shop. He said he met Leroy Brown on the sidewalk close to Dicky Boy's shop and spoke to him, and he then went behind Dicky Boy's shop and pulled off a pair of pants and that he threw them in a ditch, and the best he remembered, he threw the knife in there somewhere near where he threw the pants, and then he went from this same street, Joe Wheeler Avenue, I believe he said to the new highway, and back across to the house where he was staying, back to Arthur Jordan's, changed clothes, put a coat and some other things in a suitcase, that the suitcase wouldn't hold all the things he had, and he put one pair of pants in an outdoor toilet back of the house, and that he went from there around to the bus station.'

The accused was indicted by the grand jury on the twenty-fourth day of March, 1960. Three attorneys were appointed to represent him and the defendant was arraigned March 30. On April 8, a motion for a change of venue and continuance was overruled. A special venire of one hundred men was drawn and the trial was set for April 13. He was convicted and sentenced to be executed. By agreement of counsel he was ordered transferred to the state penitentiary.

Also by agreement, a motion for a new trial was set to be heard within fifteen days of the adjournment of court. At the hearing in vacation the defendant was not present. No objection was made at the time and one of the attorneys for the defendant told the county attorney and the judge that no point would be made of his absence.

The appellant assigns as error the lower court's overruling of his motion to quash the indictment, the overruling of his demurrer to the indictment, the overruling of his motion for a change of venue and continuance, the granting of certain instructions and refusing of other instructions, the overruling of his motion for a new trial, refusing to dismiss a juror for cause, admitting photographs offered on behalf of the State, permitting the State to put on its case 'piecemeal', admitting certain evidence obtained by illegal search, permitting officers of the court to be present and hear each other's testimony, admitting the confession into evidence, not having the appellant present at his hearing for a new trial and that the verdict of the jury was against the law and evidence and evinces bias, passion and prejudice on the part of the jury.

The appellant argues that the motion to quash the indictment should be sustained because there is a variance between the name on the indictment as William Stokes and that the extradition papers showed Wesley Stokes, Jr., and Wesley Stockes and it is not shown that they are the same person, and the court should have required the State to amend the indictment. He does not cite any authorities in his brief except Secs. 2450, 2452 of the Code. There cannot be any merit in this contention due to the fact that in all the proof it was William Stokes and he was referred to differently by different people.

The demurrer to the indictment is to the effect that the indictment ends 'and against the peace and dignity of the State of Mississippi'. That is exactly what the Constitution says, that all indictments shall end 'against the peace and dignity of the state'. Sec. 169. There can be no merit in this contention. All that the state has to do in an indictment is to comply with the requirements of the law.

The appellant contends that the court erred in overruling the motion for a change of venue and a continuance. He sets up many grounds in the motion, such as: 'The defendant is a male member of the Negro race, has incensed and inflamed the public feeling against him and that the deceased was a white woman of a very prominent family. There was local bitterness against the defendant, that there was publicized a large reward for the apprehension of the defendant and that there was fear of mob violence. That in the appointment of the attorneys inflammatory speeches against the defendant made by some of the attorneys that the court asked to represent the defendant. That these attorneys were widely known throughout the county and adjoining counties and were held in high respect by the public. That one was an immediate past county attorney and immediate past district attorney.' This motion was sworn to by Stewart J. Gilchrist and William O. Dillard.

There is no proof in the record that such statements were made by the attorneys. The court made the statement that any reasons or excuses the attorneys had for not being appointed would be made in chambers. However, there is a news item in the local paper making such a statement. The only record that was made in open court in reference to the appointment of the attorneys was as to the state of health and if they had any other statements to make that it would be made in chambers before the judge.

There is much proof on this motion for a change of venue and it was carried out by testimony of the witnesses through the questioning and selection of the jury in the trial of the case. Six witnesses testified for the State that in their opinion the defendant could get a fair trial. Four witnesses testified for the defense. The court properly considered all of the proceedings in the voir dire examination of the prospective jurors in determining whether or not defendant could get a fair trial.

In Keeton v. State, 131 Miss. 732, 96 So. 179; Jones v. State, 133 Miss. 684, 98 So. 150, it was held to the effect that where the people of the county have not prejudged the defendant's case, then there is no prejudice against the accused and that the voir dire examination of the prospective jurors shows that a fair proportion of the jurors of the county are qualified for service in the case, it is not error for the trial judge to overrule a motion for a change of venue.

In this case the voir dire examination shows that a fair proportion of the jurors of the county were qualified for service. Twelve out of thirty-eight jurors examined were disqualified because they had opinions. The court must look to all the attendant facts and circumstances and...