Toney v. State, 47609

Decision Date12 August 1974
Docket NumberNo. 47609,47609
Citation298 So.2d 716
PartiesJames TONEY v. STATE of Mississippi.
CourtMississippi Supreme Court

Charles R. Holladay, Picayune, for appellant.

A. F. Summer, Atty. Gen., by Karen Gilfoy, Sp. Asst. Atty. Gen., Jackson, for appellee.

INZER, Justice:

Appellant James Toney was indicted, tried and convicted in the Circuit Court of Pearl River County of the crime of assault and battery with intent to kill and murder Cleveland McQueen. He was sentenced to serve a term of three years in the State Penitentiary. From this conviction and sentence he appeals. We reverse and remand.

On Friday night September 29, 1972, at about 10:30 p.m. appellant, who was a Vietnam veteran, George Perkins, Marie Williams, Mack Taylor and Georgia Mae Terrell, all of the black race, decided to go to the Twilight Inn located just north of Picayune to get something to eat. This is the only eating place in Picayune that is open at night. It appears from the record that the Twilight Inn is a combination cafe and pool room. The cafe part has tables and a counter for people who desire food with sufficient space for two pool tables in the back part of the cafe. There is a back room with an entrance where it appears that black people were expected to go to be served. When the party reached the Inn, appellant, Mack Taylor and George Perkins went into the front part of the cafe. Georgia Mae Terrell went around to the back where she said she was accustomed to go for service. Marie Williams remained in the pickup truck. When the three black men entered the cafe, they went to the counter and sat down on stools. There had been a ballgame that night and the cafe was crowded. Shortly thereafter Cleve McQueen, who had stepped outside to talk to someone, reentered the cafe. He walked up to appellant and told him he was in his seat. According to the testimony of McQueen appellant made no comment and immediately moved from the stool where he was sitting to another one. McQueen said that while the blacks were sitting there, he heard someone behind him say to the blacks, 'You can get served in the back.' He did not know who made the remark. In any event the blacks did not get served, and McQueen said he did not know when they left the counter. McQueen testified that after a short lapse of time he started to go home and when he reached the door he looked up and saw appellant who was right at him. He said appellant had a knife in his hand and that appellant stabbed him and ran. McQueen then got out his knife and started running after Toney. He said he struck at him with his knife but did not think he hit him. When Toney reached the pickup truck, he reached into the truck and got a rifle that McQueen thought was a shotgun. Toney pointed the gun at him without saying anything. McQueen then hollered to the people behind him, 'You all stay back, he has a shotgun.' Appellant then immediately got into the truck with two other members of the party and drove away. McQueen went to the hospital for treatment of his wounds. He had a stab wound in the abdomen and was required to remain in the hospital for eight days for treatment. McQueen's version of the incident was verified by three other witnesses who testified for the state.

Appellant and the men who were with him testified that after they were seated in the cafe, McQueen told appellant, 'They are not going to serve you.' The blacks made no comment but continued to wait for service. In a few minutes some men with pool sticks in their hands came up behind them. They cursed them and told them they would have to leave and go around to the back. The blacks then became afraid and decided they had better leave. Appellant testified that when they reached the door, Mack Taylor started to open it, someone pushed appellant into the door, and at the same time he felt a sharp pain in his back. Appellant said that while he was trying to get out of the door, he got out his knife and when he looked around he saw McQueen with a knife in his hand. McQueen struck at him with a knife. Appellant stepped back and McQueen missed him. Appellant then made a motion at McQueen with his knife to keep him away. He did not know he had actually stabbed McQueen when he made that motion. He then turned and ran to the truck with a group of people following him. They were cursing and threatening him. When he reached the truck, he got a rifle that belonged to his father, who always kept it in the truck. He then turned and told the men who were following him not to come any closer or he would use the rifle. He and the other members of the party, except Mack Taylor and Georgia Mae Perkins, got in the truck and left. When he reached home he discovered that the sharp pain he felt in his back was in reality a cut that someone had inflicted on him. After his wound was dressed and he had changed shirts, he got back in the pickup truck and went to find out what had happened to Mack Taylor and Georgia Mae Perkins. Shortly thereafter appellant was arrested.

On cross examination appellant was asked by the district attorney if Marie Williams did not tell them that if they went into the front part of the cafe there would be trouble, and that as result of this warning they then armed themselves with knives and went into the front part of the cafe. Appellant admitted that Marie Williams did tell them that if they went into the front part of the cafe there would likely be trouble, but he denied that he armed himself with a knife because of this statement. He said that the knife that he had was an ordinary knife that he used when hunting and fishing. Appellant, of course, was justified in believing that he had a right to enter the front of the cafe to be served with food without causing any trouble.

Appellant's version of what happened was substantiated in material particulars by the other members of the party, including Marie Williams who remained in the truck. She testified that while in the truck she heard someone outside of the cafe say in a loud voice, 'he was going to kick him a nigger.' She then got out of the truck and went up to the window of the cafe to see what was happening. As she stood there looking she saw Toney and the others get up to leave. When they attempted to leave a number of people got up and followed them. One of them pushed Toney into the door and cut him in the back with a knife. As Toney and the others came out the door one of them told her to run, which she did. When she reached the walkway going to the back she stopped and looked around. She saw a man with a knife chasing Toney and heard him say, 'Oh! Oh! Black boy I'm going to kill you now.' When Toney got the rifle and the man backed away, she ran to the truck and she, George Perkins and appellant got into the truck and immediately left. She said that when they reached home, Toney was bleeding and after he removed his shirt, she cleaned and dressed the cut place on his back.

Appellant assigns several grounds for reversal of this case, but we will only discuss those which in our opinion merit discussion. It is first contended that the trial court was in error in refusing to sustain appellant's motion to strike all remarks of the district attorney concerning flight of the witnesses for the appellant and the reference of the district attorney which insinuated that appellant and his witnesses had perjured themselves when testifying on a motion for continuance. It appears from the record that on the day before this trial, the court heard appellant's motion for continuance, based on the absence of material witnesses. On this motion appellant and several witnesses testified relative to the absence of Mack Taylor and Georgia Mae Terrell. The motion for continuance was overruled and when the case was called for trial the next day, the absent witnesses were present in court. Georgia Mae Terrell was called as the first witness for the appellant. On cross examination the district attorney sought to bring out that immediately after this incident Mack Taylor had left Pearl River County. An objection was made by appellant, and it was sustained by the court. Thereupon the district attorney stated in the presence of the jury, 'Your Honor, she is on cross examination and I think that flight from the area would be important. And if there are some witnesses who have perjured themselves on previous testimony taken on yesterday, I think that should be brought to light.' The court then stated, 'That would have to be taken out of the presence of the jury. Let's go into another line of questioning.' In spite of this statement by the court the district attorney continued to question the witness relative to her flight and that of Mack Taylor. The court sustained the objections to the questions and appellant then asked that the jury be retired and out of the presence of the jury moved the court to strike the remarks of the district attorney and his question concerning flight of witnesses. Appellant also requested the court to instruct the jury that they were not to consider the remarks made by the district attorney. The district attorney resisted the motion and asked that the record made on the motion for continuance be made a part of the record in this case. The court granted the request of the district attorney and overruled appellant's motion to strike and refused to instruct the jury to disregard the statement of the district attorney. When Mack Taylor was called as a witness for appellant, the district attorney questioned him at length as to when and why he left Pearl River County immediately after the incident. Finally, when the witness was asked if he came back and picked up Georgia Mae Terrell, appellant objected on the ground that the testimony had nothing to do with the case then being tried. The court overruled the objection.

The questions asked by the district attorney and his remarks relative to some witnesses having perjured themselves by testimony taken on the ...

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13 cases
  • Culberson v. State
    • United States
    • Mississippi Supreme Court
    • 28 Noviembre 1979
    ...counsel argues, however, that we should deem this an extreme case and waive strict application of Rule 42 as we did in Toney v. State, 298 So.2d 716 (Miss.1974). We do so with reluctance and only because this is a capital In contrast with Marble v. State, 195 Miss. 386, 15 So.2d 693 (1943),......
  • Hill v. Thigpen, DC 84-230-D-O.
    • United States
    • U.S. District Court — Northern District of Mississippi
    • 2 Julio 1987
    ...instruction addressed although no objection to instruction at trial). This court's conclusion is further supported by Toney v. State, 298 So.2d 716, 720 (Miss.1974) where the Mississippi Supreme Court raised, on its own motion, an objection to an instruction that had not been objected to at......
  • Jones v. State, DP-60
    • United States
    • Mississippi Supreme Court
    • 28 Enero 1987
    ...(1947). Enforcement of our contemporaneous objection rule is relaxed. Culberson v. State, 379 So.2d 499, 506 (Miss.1979); Toney v. State, 298 So.2d 716, 721 (Miss.1974). We resolve serious doubts in favor of the accused. Gambrell v. State, 92 Miss. 728, 736, 46 So. 138 (1908). And, as indic......
  • Hill v. State, 53795
    • United States
    • Mississippi Supreme Court
    • 4 Mayo 1983
    ...to hold that capital cases are "extreme cases" and that the contemporaneous objection rule does not apply in such cases. Toney v. State, 298 So.2d 716, 721 (Miss.1974); Culberson v. State, 379 So.2d 499, 506 (Miss.1980); (Rule 42 waived "with reluctance and only because this is a capital ca......
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