Wallace v. State

• Decision Date: 07 June 1926
• Docket Number: 25567
• Citation: 108 So. 810,143 Miss. 438
• Court: Mississippi Supreme Court
• Parties: WALLACE v. STATE. [*]

108 So. 810

143 Miss. 438

WALLACE v. STATE. ^[*]

No. 25567

Supreme Court of Mississippi

June 7, 1926

Suggestion of Error Overruled June 21, 1926.

(In Banc.)

1. CRIMINAL LAW.

Finding of jury on question of sanity, on conflicting evidence, will not be reversed.

2 HOMICIDE.

Where defense, in murder prosecution, was insanity at time of killing, testimony with reference to information obtained from defendant by officers immediately following arrest was admissible.

HON. J Q. LANGSTON, Judge.

APPEAL from circuit court of Marion county, HON. J. Q. LANGSTON Judge.

Jeff Wallace was convicted of murder, and he appeals. Affirmed.

Judgment affirmed.

H. B. Leach and Broom & Gober, for appellant.

I. A change of venue should have been granted. A special term of court was called to consider this case. This is significant in view of the fact that mobs had assembled and great fear was felt for the safety of the prisoner. So much so that the sheriff deemed is advisable to transfer him first to Poplarville, and later to Jackson. The sheriff deemed this necessary to save him from mob violence. It is manifest from the entire record that this special term of court was called as a compromise to appease the wrath of the assembled mob.

We confidently assert without fear of contradiction by the record that not one man in the entire county who was mentally competent to sit on the jury could be found who had not heard this case discussed, and who had not formed or expressed an opinion with reference to it. Many of the witnesses testified that they knew the sentiment of the people, and that the case had been prejudged against the defendant. Other witnesses testified that it was impossible to procure witnesses to take the stand and testify to the real sentiment which prevailed and this reluctance on the part of the people who refused to testify was due to fear, and they requested that they be not required to testify.

The general rule is that the right to a change of venue is a matter submitted to the sound discretion of the trial court; and when it appears that there has been no abuse of the discretion, its action in refusing to grant a change of venue will not be disturbed. It would be impossible to lay down any fixed rule that would cover all cases with reference to a change of venue. This court is repeatedly called upon to say under the facts in a case that it was or was not grounds for a change of venue. We will cite a few cases where a change of venue was authorized. See Stafford v. State, 76 Miss. 258, 24 So. 314; Tennison v. State, 79 Miss. 708, 31 So. 421; Brown v. State, 83 Miss. 645, 36 So. 73; Anderson v. State, 92 Miss. 656, 46 So. 65; Keeton v. State, 96 So. 179, 132 Miss. 732.

When the court has read the record in this case and when they consider the great excitement that prevailed there; when they have read newspaper reports that must have inflamed the public mind there; when this court has observed the necessity for transferring the appellant first to Poplarville and later to Jackson, because of threatened mob violence; when the court considers that three hundred forty-eight men, three special venires, and two regular panels were exhausted in an effort to procure a jury; when it considers further that every peremptory challenge of the defendant had been exhausted; and when this court has examined carefully the testimony of every witness with reference to a proposed change of venue, we believe that this court will then say that, under these facts, it was error to refuse a change of venue.

II. The correct rule with reference to a plea of insanity is stated in Smith v. State, 95 Miss. 786, 49 So. 945. The best proof or the most competent evidence that could be offered on this question was that given by his son, his son-in-law, and by some other close friends who had known the defendant for many years. All of these witnesses testified that the appellant was insane, and had been insane for some time, and they related instances and circumstances upon which they based their belief and their statement.

Then it will be observed that experts were present and heard the entire testimony of the witnesses and gave it as their opinion that the appellant was insane at the time the act was committed and gave reasons for his opinion.

J. A. Lauderdale, Assistant Attorney-General, for the state.

I. The motion for change of venue was properly overruled. On the hearing of this motion the state introduced twenty-six witnesses. These witnesses were scattered all over the county, almost every community in the county was represented by one or more witnesses. They came from all walks of life, some farmers, some doctors, some lawyers, etc. They testified that they had lived in Marion county for a number of years and most of them were well acquainted with the people in the county or at least with the people in their immediate community, and each and every one of them testified positively and unequivocally that the appellant could get a fair trial in Marion county and that a fair and impartial jury could be had to try him.

It appears that the district attorney used six peremptory challenges; that the attorney for appellant used twelve peremptory challenges when nine jurors had been obtained; that the defense did not object to any juror selected after that time; and that there was no challenge for cause. In other words, even though taking the statement of counsel in this case as the facts, it appears from the record that no man on the jury which tried this appellant was objected to, excepted to, or challenged for cause by the attorneys for the defendant.

The discretion of the trial judge in overruling the motion for a change of venue will not be disturbed unless a gross abuse of it is clearly shown: Weeks v. State, 31 Miss. 490; Mash v. State, 32 Miss. 406; Stewart v. State, 50 Miss. 582; Cavanaugh v. State, 56 Miss. 299; Dillard v. State, 58 Miss. 368; Bishop v. State, 62 Miss. 289; Regan v. State, 87 Miss. 422; Long v. State, 133 Miss. 33; Bond v. State, 91 So. 461; Mackie v. State, 138 Miss. 740.

In the case at bar thirty witnesses testified that defendant could obtain a fair and impartial trial; one testified that he did not know whether he could or not; one, a son-in-law of the defendant, testified that he could not obtain a fair and impartial trial. We submit that the proof overwhelmingly shows that the motion for a change of venue was properly overruled.

II. The testimony in the case established the fact beyond all reasonable doubt that the appellant was sane at the time the crime was committed. The state introduced twenty-five witnesses who testified with reference to the sanity of the defendant. These witnesses were neighbors, friends, and acquaintances of the defendant. They testified that they had known him from two to forty years. A great many of them had been intimately associated with him in social and business ways; and each and every one of them testified positively that they had never seen Mr. Wallace do any act or speak any word that would in any way indicate to them that he was not sane and normal in every respect.

It seems that from the facts the defendant knew that he had committed a crime; that he knew he was liable to be punished therefor; that he tried to establish a defense; that he explained away every circumstance that incriminated or tended to incriminate him. I submit that this testimony is most positive in showing that this appellant was entirely sane at the time he committed this crime.

The theory of the state in the trial of the cause was that the appellant had been drinking intoxicating liquor, that he himself had manufactured or that he had forced his wife and twelve-year-old son to manufacture; that the twelve-year-old boy testified that his father was drinking white lightning before he went to school; and Albert Knight testified that Mr. Wallace was drinking the afternoon of the tragedy.

The testimony for the state shows beyond all reasonable doubt that the defendant was sane at the time this crime was committed; that the testimony for the defendant does not even raise a suspicion that he was insane; that the horribleness of the crime is accounted for by reason of the fact that the defendant was partly intoxicated on home brew whiskey at the time of its commission.

The judgment of the trial court should be affirmed.

H. B. Leach, in reply, for appellant.

I. Change of venue. The gist of what each witness testified to is that they believed that appellant could get a fair and impartial trial in Marion county, because Marion county had as good a citizenship as any other county in the state. In other words, they based their opinion as to appellant's ability to obtain a fair and impartial trial, not upon their knowledge or information of the attitude of the general public toward the...