Wetzel v. State, 39355

• Decision Date: 06 December 1954
• Docket Number: No. 39355,39355
• Citation: 225 Miss. 450,76 So.2d 188
• Parties: William Alvin WETZEL v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 188

76 So.2d 188

225 Miss. 450

William Alvin WETZEL v. STATE of Mississippi.

No. 39355.

Supreme Court of Mississippi.

Dec. 6, 1954.

Neill, Clark & Townsend, Indianola, Howard McDonnell, Biloxi, for appellant.

J. P. Coleman, Atty. Gen., by Joe T. Patterson, Asst. Atty. Gen., for appellee.

ETHRIDGE, Justice.

Appellant William Alvin Wetzel was convicted in the Circuit Court of Sunflower County of the murder of Edgar G. (Sonny) McGraw, and was sentenced to death. On this appeal he argues four assignments of error: (1) The State's evidence was insufficient to establish appellant's guilt beyond a reasonable doubt, being inconsistent and contradicted in part by physical facts; (2) the denial of a continuance; (3) the refusal of two instructions requested by appellant; and (4) the cross-examination by the district attorney of six witnesses for appellant concerning prior convictions.

The killing occurred on Tuesday afternoon, April 14, 1953, between 1 and 2 P.M. The scene was a cornfield on the grounds of the Mississippi State Penitentiary at Parchman. The murdered man was Edgar G. (Sonny) McGraw. McGraw, James L. McKnight and Jack Watson were convicted in Pike County of the same offense, grand larceny. McGraw turned 'State's evidence' against McKnight and Watson. McKnight pleaded guilty. McGraw received a sentence of two years, and McKnight and Watson considerably longer sentences. On April 13, Monday, McGraw and McKnight were assigned to Camp 5 at the penitentiary, and Watson to Camp 6. McGraw was slain the next afternoon.

The State's case was established by three eyewitnesses to the killing, by another witness who saw Wetzel with the knife immediately after the stabbing, by the testimony of another witness, McKnight, concerning certain threats by Wetzel toward deceased, and other evidence hereinafter referred to.

Andrew Warren, serving a term for cattle theft, was working as a water boy and driving a mule-drawn water cart, on which there were large barrels of drinking water. The cornfield in which the men were working was west of a railroad, and to the west of the cornfield was a 16-foot wide turnrow, uncultivated, upon which vehicles and farming equipment were turned while working the field. There were seventy-two convicts working the field, in thirty-six rows, two men to a row. Corn was growing in the field, and the men were planting peas or beans between the corn, which apparently was not high. The front man would chop a hole for the seed, and the second man would drop the seed in the hole and cover it. The north row of men was called the lead row, upon which apparently the faster workers were placed. The south row was called the count-row, and the center row the swing-row. Warren's water cart was situated on the north side of the turn-row. He apparently was sitting or standing on the water cart when the cutting occurred. The men from Camp 5 were under the control of a civilian guard named Captain Dye. Under him were four trusty guards called shooters, stationed around the four corners of the working area. On the northwest corner, to the north of the water cart, was E. J. Brooks, a trusty, and on the southwest corner was another trusty-guard or shooter, Jack Brown. The men working the field had started on its west side, gone to the east end, and after turning had almost completed the second row, working west. Most of them were near to the turn-row, and a number were on it. All of the witnesses who saw any part of the event were convicts.

Warren had placed two five-gallon water buckets slightly south of the middle row. He was on his water cart about fifty feet north of the buckets when the killing occurred. He testified that he saw McGraw step out of line to get water, that Jones knocked a hoe out of McGraw's hand, Sorber grabbed McGraw, pulled his head back by the hair, and put his hand over his mouth; that Harrison stood in front of him, and appellant Wetzel ran up behind McGraw, put his hand on his left shoulder, and with a knife cut McGraw's throat. Warren screamed for Captain Dye. McGraw tried to run back to the water cart to the north. Warren said he saw Wetzel give the knife to Sorber, but he does not know what Sorber did with it. He said that the cutting occurred about twenty-eight feet south of the water buckets, which would make Warren seventy-eight feet north of where the slaying occurred. McGraw died in about four minutes. The prison physician testified that McGraw's death was caused by the cut, which was about three inches long and two inches deep, on the right side of his neck, extending from the Adam's apple area. McGraw also had a straight, smooth knife wound on the inside of three fingers of his left hand.

James L. McKnight was serving a term for a burglary, along with McGraw and Watson. McKnight had pleaded guilty, but as previously stated McGraw had testified for the State. Watson was in Camp 6. McKnight said that for several days he was in the Hinds County Jail in Jackson with Wetzel and Watson. He heard them talking about McGraw turning State's evidence. Wetzel told him that if McGraw were a 'stool pigeon' he would have a hard time at the penitentiary. He heard Wetzel and Watson talking about Jones and Sorber, and he concluded that they had been in jail in Jackson before he got there. When McKnight was assigned to Camp 5 on Monday afternoon, the day before the killing, Wetzel, who knew him, asked him about his and Watson's case and whether McGraw turned State's evidence. McKnight said that he told Wetzel that Watson got thirty years, and McGraw got two years. Wetzel then stated to McKnight that 'he told Jack Watson he would take care of Sonny McGraw if he came to the camp where he was.' McKnight said that when they got to the field the next morning Captain Dye said that he understood that they had the man who had 'squealed', thus calling to the attention of the convicts McGraw's presence. The men returned to their camp about 11 A.M. and went back to work in the field at 1 P.M. McKnight said that he did not see the stabbing, but heard Wetzel say that McGraw 'probably cut his own throat'. He had finished his row, had a drink of water, and had sat down south of the stabbing when it occurred. He admitted that he did not like McGraw and at the trial in Magnolia he threatened to kill him with a knife. But he said he was angry at that time and he had no part in the killing.

Another eye-witness was Namon Bangs, serving a term for murder. He said that he saw Wetzel, Jones and Sorber hold McGraw, and Wetzel stab McGraw with a knife. Wetzel handed the knife to Sorber, who buried it in a blue handkerchief. Bangs said that he was about ten feet away when it occurred. Another eye-witness was Jack Brown, a trusty-guard, serving a sentence for murder. He was south of the cutting, looking north toward the water buckets. He testified that he saw Wetzel, Sorber, Jones and Harrison go with McGraw to the water bucket, and then all five men walked south, toward Borwn. Jones slapped the hoe out of McGraw's hand, Sorber held McGraw by the hair of his head, with his other hand around in front of him, and Wetzel 'caught him on the left shoulder and put his knee in his back, and cut his throat.'

Mike Potapov, Jr., did not see the actual cutting, but saw Wetzel with a knife immediately after it happened, and saw Wetzel hand the knife to Sorber, who wrapped it in a blue handkerchief, leaned over like he was tying his shoe, and covered the knife and handkerchief up. He saw Jones, Wetzel, Sorber and Harrison near McGraw. The witness said that he was going to the water bucket when the cutting occurred, and that he was within eight to ten feet of it. Potapov further testified that during the dinner period before the cutting occurred, he was in the camp building or cage in the aisle next to Wetzel; that he saw Wetzel go in a locker under his bed and take out a redhandled jackknife; and that the knife taken by Wetzel was similar to that found buried under the earth on the edge of the turnrow in a blue and white polka-dotted handkerchief shortly after the killing.

Sgt. D. C. Tomlinson was in charge of Camp 5. He came up after the cutting. He noticed a pile of dirt on the side of a small drain next to the rows, and found under it a blue handkerchief with white polka dots, wrapped around a red jackknife, which Potapov testified was similar to that he had observed Wetzel take from his foot-locker during the noon hour. Tomlinson stated that a record is kept of all incoming packages to the prisoners; that about two weeks before, Sorber's sister in Dayton, Ohio, sent him a package containing four blue handkerchiefs with white polka dots. The handkerchief wrapped around the knife and dug out of the ground by the drain after the killing was similar to the handkerchiefs received by Sorber. On the morning after McGraw's death, Tomlinson said that he found the other three polka-dotted handkerchiefs in Sorber's foot-locker, and that they were similar to the one wrapped around the knife found after the killing. There was no blood on the knife and apparently not on the handkerchief wrapped around it. The witness stated that to his knowledge there were no other similar handkerchiefs at the camp.

Wetzel offered fifteen witnesses for his defense. Dalton testified that Sorber was near him working when McGraw was cut, but he did not know where Wetzel was when the killing took place. He did not think much of a 'squealer', and if he knew who killed McGraw, he would not tell the jury. Williams said that he and Sorber were working about forty feet in the cornfield, and Sorber was just behind him. He did not know where Wetzel or Jones were, and did not see te cutting. He stated that after the line came toward the turnrow, Jones crossed the field and talked to Sorber. Jones told Sorber 'The kid is ready.' Stanley testified that Sorber was in the field working fifteen to twenty-five feet behind him, and he was talking...