Thompson v. State, 40635

• Decision Date: 07 October 1957
• Docket Number: No. 40635,40635
• Parties: Joe Louis THOMPSON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 227

97 So.2d 227

231 Miss. 624

Joe Louis THOMPSON v. STATE of Mississippi.

No. 40635.

Supreme Court of Mississippi.

Oct. 7, 1957.

H. G. Stamper, L. B. Porter, Union, S. T. Roebuck, A. B. Amis, Jr., Newton, W. H. Johnson, Jr., Benton R. Gordon, Decatur, Robert Everett, Ruleville, W. M. Everett, Hickory, R. S. Majure, Newton, for appellant.

G. Garland Lyell, Asst. Atty. Gen., for appellee.

ARRINGTON, Justice.

The appellant, Joe Louis Thompson, was jointly indicted with Tolbert McKenzie, Jr., in the Circuit Court of Newton County for the murder of J. Z. Jones. The appellant was tried separately, convicted, and sentenced to death. From this judgment he appeals.

The record discloses that the appellant and McKenzie, on December 24, 1956, about 1:30 o'clock A.M., each armed with a shotgun and wearing masks, entered the Colonial Cafe located about two miles east of Newton on U. S. Highway 80, and robbed J. Z. Jones, the owner of the cafe. While the robbery was being carried out, the robbers were observed by an officer of the Highway Patrol who was off duty. He attempted to arrest one of the robbers and shooting began; the patrolman was wounded and Jones was killed. An alarm was given and the Sheriff of Scott County, an adjoining county, set up a road block at an intersection on Highway 80, and about 3 o'clock A.M., arrested the appellant, who was then driving a pickup truck that did not belong to him. He was placed in the Scott County jail, and was later turned over to the Sheriff of Newton County, who, in turn, delivered him to the Highway Patrol to be brought to the Hinds County jail.

There is no conflict in the evidence as to appellant's guilt. The appellant did not testify in his own behalf and offered no evidence. The evidence on the part of the State shows without dispute the guilt of the appellant beyond every reasonable doubt and to a moral certainty.

The appellant first contends that the court erred in proceeding to try him separately, contending that he was jointly indicted with McKenzie; that he did not request a severance and was entitled to a joint trial. The record shows that the Circuit Court of Newton County convened on the third Monday of March, which was March 18, 1957. On this date, McKenzie was still at large. The appellant was arraigned and on March 19 a special venire was summoned, returnable on the second Monday, which was March 25. On March 24, McKenzie was arrested, after being shot in the leg at the time. Although the record shows that McKenzie was present at the time of the trial, he was in no condition to stand trial because he required surgery on his leg.

The lower court overruled a motion of appellant for a joint trial and proceeded with the trial of appellant separately. In the case of Malone v. State, 77 Miss. 812, 26 So. 968, this Court settled this question. In that case, Press Malone and Jesse Malone were jointly indicted for assault with intent to kill and murder. At the time of trial, Press Malone was ill and the continuance of the case was had as to him, and Jesse Malone was put on trial over his objection to be tried in the absence of his co-defendant, which he claimed operated as a severance, and the court could not effect without the consent of the person tried. In replying to this contention, the Court said:

'We see no error in putting Jesse upon trial in the absence of his co-defendant. At common law the trial court could sever the defendants for trial at its discretion. 1 Bish.New Cr. Pr., Sec. 1018; Wall v. State, 51 Miss. 396. Our statute [code 1892, Sec. 1417], changes the common law to the extent of securing a severance to a defendant in cases of felony, if seasonably applied for by him.'

'A right to a separate trial does not give defendants the right to demand to be tried jointly, and the court in its discretion may order separate trials over an objection that defendants should be tried together. * * * Under statutes considered in the preceding section, and conferring on defendants jointly indicted the right to separate trials on demand, by failure to demand separate trials the defendants do not become entitled as of right to receive a joint trial, such matter resting in the court's discretion.' 23 C.J.S. Criminal Law Sec. 934. See also 53 Am.Jur., Trial, Secs. 56, 57, 58.

It follows that the lower court committed no error in trying the appellant separately.

The appellant argues that the court erred in admitting the confession of appellant in evidence. The record discloses without contradiction that the appellant was arrested on the morning of December 24, 1956, and on that date made a free and voluntary confession. This confession was made to two members of the Highway Patrol. According to the evidence, the appellant related the facts, which were taken down by a stenographer and transcribed, and later approved by the appellant. The court conducted a preliminary inquiry as to the admissibility of the confession in the absence of the jury. The testimony of the patrolmen was that the appellant was advised of his rights, that the confession was not induced by fear, threat, or promise of reward. The appellant offered no testimony to the contrary. The confession of the appellant is as follows:

'Jackson, Mississippi

'24 December 1956

'I, Joe Louis Thompson, make the following free and voluntary statement to Sam Ivy and Ed Ainsworth, who I know to be officers with the Mississippi Highway Patrol. No threats or promises have been made against me and I know that anything I might say may be used in a court against me. I have been advised of the right of a lawyer.

'I am 20 years of age and was born at Sturgis, Mississippi.

'Last night, December 23, 1956, at about 10:00 P.M., at Buckatuna I met Buddy McKenzie, another Negro who I had known about 10 days. Buddy McKenzie was driving a 1955 white chevrolet and this car had a Alabama tag on it. He told me to get in the car and let's go. Buddy McKenzie drove out a gravel road and stopped and we got out. We picked up two shot guns which were lying hid on the side of the road and we put them on the back seat. Buddy McKenzie and myself left Bucktuna about 10:30 P.M. and drove to Meridian on Highway 45. At Meridian we took Highway 80 and drove to Newton, Mississippi, and arrived there about 12:30 A.M. When we left Buckatuna the two of us agreed to rob the first cafe we found open. As Buddy and myself were coming into Newton on Highway 80 we noticed a cafe open on the left side of the highway. We parked the car at the West entrance of this cafe. We sat there about 5 minutes, got out and I took an automatic 12 gauge shot gun out of the rear seat and Buddy took a pump shot gun. Buddy told me the guns were loaded, and he gave me about 8 shot gun shells which I put in my pocket.

'We walked to the front of this cafe. Both of us went in the filling station side of this cafe first. Buddy told a white man to hole them up. I them came back out the front door and went in the door to the cafe side. As I came in I heard the report of a gun which sounded like it was at the entrance between the filling station office and the cafe. I told them to stick 'em up and put their hands up. There was one white man behind the cash register and several other white people in the place. I told the white man to give me the money. The white man put the money in a paper sack and laid it on the counter and I got it. When I picked up the money at the cash register Buddy McKenzie went back into the filling station office and carried the white man with him. When I got the money I heard a car drive up outside and I saw a white man coming toward the building through a window. This man stopped and went back to his car. I started out the back door and called to Buddy McKenzie and told him to come on there was somebody out front. As I started out the back door...