Temple v. State

• Decision Date: 06 February 1933
• Docket Number: 30245
• Citation: 165 Miss. 798,145 So. 749
• Court: Mississippi Supreme Court
• Parties: TEMPLE v. STATE

145 So. 749

165 Miss. 798

TEMPLE v. STATE

No. 30245

Supreme Court of Mississippi

February 6, 1933

Division A

Suggestion Of Error Overruled March 6, 1933.

APPEAL from circuit court of Covington county, HON. EDGAR M. LANE Judge.

W. L Temple was convicted of manslaughter, and he appeals. Affirmed.

Affirmed.

E. L. Dent, of Collins, for appellant.

For any irregularity in finding the indictment a motion to quash is proper.

Sec. 1207, Code of 1930.

The concurrence of twelve of the grand jurors shall be necessary to the finding of an indictment or making a presentment.

Sec. 1197, Code 1930.

The district attorney shall attend the deliberations of the grand jury whenever he may be required by the grand jury, shall give the necessary information as to the law governing each case, in order that the same may be presented in the manner required by law.

Sec. 4364, Code of 1930.

When the motion, supported by the affidavit, was filed it became the duty of the state to convince the court by competent proof that the spirit and letter of the law had been complied with indicting this sixteen year old boy. The motion to quash should have been sustained and the indictment quashed.

Beason v. State, 34 Miss. 602; Neal v. State of Delaware, 103 U.S. 370, 26 L.Ed. 567.

Indictments, not found by at least twelve good and lawful men are void at common law.

Barney v. State, 12 S. & M. 68; 31 C. J. 584.

It is undoubtedly true that a private prosecutor's presence in the grand jury room renders the indictment void.

Collier v. State, 104 Miss. 602, 45 L.R.A. 599, 61 So. 689.

The county prosecuting attorney should not be in the room at the time the jury is deciding the case by their vote.

State v. Coulter, 104 Miss. 764, 61 So. 706.

Where the district attorney was present by request of the grand jurors while the vote was being taken constitutes a mere irregularity.

Le Barron v. State, 107 Miss. 663, 65 So. 648.

In capital cases the defendant and the state shall each be allowed twelve peremptory challenges.

Sec. 1277, Code of 1930.

In criminal cases it is held that an allowance to the state of more than its proper number of peremptory challenges is reversible error.

35 C. J. 419; State v. Dalton, 69 Miss. 611, 10 So. 578; State v. Bertrand, 119 So. 261.

It was manifest prejudicial error to deny appellant the right to prove the dying declaration of the deceased.

30 C. J. 251; Sprinkle v. State, 137 Miss. 731.

All of the courts are agreed that one, who at the time of the commission of the homicide, by reason of disease of the mind, was incapable of knowing the nature and quality of his act, or that the act was wrong is not criminally responsible.

29 C. J. 1052.

Every man is presumed to be sane, but whenever the question of sanity is raised and put in issue by such facts, proven on either side, as engender such doubt, it devolves upon the state to remove it, and to establish the sanity of the prisoner to the satisfaction of the jury, beyond all reasonable doubt arising out of all the evidence in the case.

Cunningham v. State, 56 Miss. 269; Ford v. State, 73 Miss. 734, 19 So. 665.

An instruction for the state in a case of homicide is fatally erroneous if it ignores and removes from the consideration of the jury a valid defense supported by the evidence and insisted upon by the defendant.

Suttle v. State, 88 Miss. 177, 40 So. 552; Prine v. State, 73 Miss. 838, 19 So. 711.

Even if the instruction for the state, did submit for the consideration of the jury appellant's defenses, we do not think it cured the error in appellee's instruction. The two instructions cannot be read into each other; they cannot be reconciled. Taken together, it cannot be safely said that the two instructions consistently and without conflict laid down the governing principles of law; they were calculated to mislead the jury.

Clegg v. Johnson, 143 So. 848.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

On a motion to quash an indictment the burden is on the movant to establish his contentions.

Price v. State, 152 Miss. 625, 120 So. 751; Smith v. State, 158 Miss. 355, 128 So. 891.

An indictment will not be quashed because of the presence of the district attorney in the grand jury room while the matter was under investigation and when the indictment was voted on in the absence of a showing that the accused was prejudiced thereby.

Price v. State 152 Miss. 625, 120 So. 751.

It seems the burden was on the movant to establish the grounds of his motion as to excessive peremptory challenges. Failing to do so, it is proper to overrule the objection, particularly in view of the fact that the ruling of the court clearly indicates that he made his own investigation before ruling on the objection.

If this court should hold that the thirteenth peremptory challenge was allowed the state, it still should not constitute reversible error. Particularly in view of the fact that another trial, properly conducted, in my judgment, could only result in another conviction, on the evidence disclosed by the record in this case.

Barnett v. Dalton, 69 Miss. 611, 10 So. 578.

The record does not establish what the dying declaration was and without this evidence in the record no error can be predicated on the exclusion thereof.

Mooreman v. State, 131 Miss. 662, 95 So. 638; Reece v. State, 154 Miss. 862, 123 So. 892.

The testimony of the defendant with reference to his mental condition is not such as to engender a reasonable doubt of sanity and in the absence of such testimony, engendering a reasonable doubt of sanity, the presumption of sanity will stand and no evidence on that subject is necessary to be introduced on the part of the state.

Cunningham v. State, 56 Miss. 269.

The testimony of the physicians, is based on hypothetical questions propounded to them and the subject-matter of these hypothetical questions is not sustained by the proof in this case.

All of the instructions in a case should be taken and considered as a whole and if, as a whole, the instructions correctly state the law applicable to the case, there would be no error in the giving of instructions.

Williams v. State, 135 So. 210.

Argued orally by E. L. Dent, for appellant, and by W. D. Conn, Jr., for the state.

OPINION

McGowen, J.

On an indictment for murder, W. L. Temple, the appellant, sixteen years of age, was convicted of manslaughter in the killing of Odell Flynt. It is unnecessary to give a detailed statement of the facts. The state's evidence tended to show that a few minutes before the killing, Flynt had committed an assault and battery on the appellant, Temple, pursued him, and knocked him in a ditch, as a result of which the appellant was bruised on the head and bleeding. The difficulty happened at nighttime, and later, after it was over, Flynt, the deceased, was seen standing in front of the lights of his car, in a stooped position, looking at his hand, which he had injured in striking the appellant on the head. Many of the witnesses for the state testified that the appellant stepped into the light and stabbed Flynt in the back with his pocket knife at a time when the deceased did not see him and was not making any threat, demonstration, or overt act towards him. The wound inflicted was a stab on the left side of his back, puncturing the pleural cavity, from which wound Flynt died.

The evidence for the appellant tended to show, perhaps, self-defense, an overt act on the part of Flynt, the deceased, toward him at the time he struck the fatal blow, and that he was rendered unconscious and incapable of committing the crime because of the beating he had received a few minutes before. These theories of the evidence were embraced in the instructions for the defendant on the trial of the case.

1. It is insisted by the appellant that the court erred in not sustaining his motion to quash the indictment. This motion was based on an affidavit of the appellant that the indictment was not concurred in by twelve legal, uninterested, qualified grand jurors, and that the district attorney appeared, and was present during the deliberation of the grand jury and at the time they voted on the indictment when he was not required so to do by the grand jury. Appellant made no effort to present any evidence in support of his motion and affidavit and the state offered none, whereupon the court overruled it, and cites Beason v. State, 34 Miss. 602, Barney v. State, 20 Miss. 68, 12 S. & M. 68, and other authorities to the effect that it is necessary that twelve members of the grand jury concur in the finding of an indictment. Generally, the return of an indictment into court raises the presumption that all the necessary legal requisites have been complied with. 31 C. J. 585, section 49. Section 1197, Code 1930, is a rescript of the common law, and requires that at least twelve of the jurors concur in the finding of an indictment. Section 1198, Code 1930, requires that "all indictments must be presented to the court by the foreman of the grand jury, with his name indorsed thereon, in the presence of at least twelve of such jury, including the foreman, and must be marked 'filed,' and such entry be dated and signed by the clerk; and an entry on the minutes of the court of the finding or presenting of an indictment shall not be necessary or made, but the indorsement by the foreman, together with the marking, dating, and signing by the clerk shall be the legal evidence of the finding and presenting to the court of the indictment." In the case at bar, the foreman of the grand jury and the clerk of the court performed their duty as required by this statute and as shown by the indictment.

The indictment in question was marked "filed" and it...