Wexler v. State

• Decision Date: 06 June 1932
• Docket Number: 30024
• Citation: 142 So. 501,167 Miss. 464
• Court: Mississippi Supreme Court
• Parties: WEXLER v. STATE

142 So. 501

167 Miss. 464

WEXLER v. STATE

No. 30024

Supreme Court of Mississippi

June 6, 1932

Suggestion Of Error Overruled, June 27, 1932.

(En Banc.)

1. CRIMINAL LAW.

To authorize reversal of conviction, appellate court must be satisfied that error was committed, and that such error was prejudicial.

2. CRIMINAL LAW.

Where undisputed evidence shows accused's guilt to moral certainty and beyond reasonable doubt, appellate court need not consider trial errors unless so grave as to deny accused's fundamental rights.

3 HOMICIDE. Murder indictment held not demurrable as not charging willfulness and accused's malice aforethought (Code 1930, section 1265).

The charging part of indictment recided, that accused and another with whom he was jointly indicted did, "unlawfully feloniously, and of malice aforethought, shoot and mortally wound" person named, "with the felonious intent to kill and murder him." Though indictment did not charge homicide was committed "of their malice aforethought," it was sufficient, since it was manifest that words "malice aforethought" referred to accused and another with whom he was jointly indicted, and because words "felonious intent" include word "willful," and "malicious" includes word "willful."

4. INDICTMENT AND INFORMATION.

Mere formal and technical words are not indispensable to indictment if offense is certainly and substantially described in language having statutory meaning.

5. CRIMINAL LAW. Application for change of venue in murder case held to present prima facie showing for change which state had right to contest by evidence (Code 1930, section 1265).

Application for change of venue alleged that, by reason of pre-judgment of accused's case and grudge or ill "will toward him in the public mind, accused could not have a fair and impartial trial in the county where offense was committed.

6. CRIMINAL LAW.

Where entire record shows accused has had impartial trial, he has no right to complain because of denial of change of venue.

7. CRIMINAL LAW.

Trial judge's decision on conflicting evidence on application for change of venue will not be disturbed unless manifestly wrong.

8. CRIMINAL LAW.

Conviction will not be reversed on ground change of venue was refused unless trial court abused discretion.

9. CRIMINAL LAW.

Refusal of change of venue in murder case on ground accused could not have impartial trial in county because of public ill will held not abuse of discretion, under evidence.

Suggestion Of Error Overruled, June 27, 1932.

APPEAL from the circuit court of Forrest county.

HON. W. J. PACK, Judge.

Paul Wexler was convicted of murder, and he appeals. Affirmed.

Affirmed.

F. B. Collins, of Laurel, and Watkins, Watkins & Eager, of Jackson, for appellant.

The court erred in overruling appellant's motion for a change of venue. The testimony of the state's own witnesses shows that immediately after the arrest of appellant and Andrew Prince, feeling was sky-high in Forrest county against this defendant.

One of our boasted safeguards which the laws of this country throw around every citizen is that when brought before the bar of justice he shall be entitled to a fair and impartial trial before a jury of unbiased, unprejudiced, and uninfluenced citizens, and be tried before a court equally as unbiased, unprejudiced and uninfluenced.

Tennison v. State, 79 Miss. 708, 31 So. 421; Magness v. State, 103 Miss. 30, 60 So. 8; Keeton v. State, 96. So. 180; Brown v. State, 83 Miss. 645.

The right to trial by an impartial jury is guaranteed by the organic law of the state, and when it is doubtful that such a jury can be obtained in the county of the venue of the homicide, the person on trial for his life is but asking for his rights when he requests a change of venue, and there is no imaginable reason to refuse, except, possibly, a slight additional cost to the county.

Eddins v. State, 70 So. 899.

The court erred in overruling appellant's demurrer to the first count in the indictment, the charging part of which reads as follows: " . . . did then and there in said county and state unlawfully, feloniously and of malice aforethought shoot and mortally wound one J. L. Odom, a human being, with a deadly weapon, to-wit: a pistol, with the felonious intent then and there to kill and murder him, the said J. L. Odom, from the effects of which said wound he, the said J. L. Odom, then and there did die."

This indictment in our opinion charges nothing more than shooting with intent and does not charge murder under either the common law or the statute, with one of which forms it must comply in order to make it valid.

It is proper to adopt either course. It is unnecessary to mingle both forms. When challenged, however, the indictment must be sufficient, according to the one or the other standard. The statutory regulation, prescribing the words in which murder and manslaughter may be charged, is recommended as generally appropriate and prudent.

Nichols v. State, 46 Miss. 284.

The indictment does not allege that the killing was done "wilfully;" the indictment does not allege that the defendant "feloniously, wilfully and of his malice aforethought, killed and murdered" the deceased; the indictment does not allege that even the shooting and mortally wounding was of the malice of the defendant, but merely alleges that it was done "of malice aforethought," without referring to either of the parties indicted.

Section 1211, Mississippi Code of 1930; Louisiana v. Solomon Williams, 37 La. Ann. 776; Nichols v. State, 46 Miss. 284; Anthony v. State, 13 S. & M. 263; Buchanan v. State, 53 So. 399; State v. Stelly, 90 So. 390.

The court erred in permitting the district attorney to put a bridle on the witnesses and lead them like leading a donkey to water.

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

The trial court was well within the discretion allowed him by the statute in disposing of this motion for a change of venue.

People v. State (Miss.), 33 So. 289; Butler v. State (Miss.), 39 So. 1005; Fisher v. State, 145 Miss. 116, 110 So. 361; Jones v. State, 133 Miss. 684, 98 So. 150; Mackie v. State, 138 Miss. 740, 103 So. 379; Long v. State, 133 Miss. 33, 96 So. 740; Walden v. State, 129 Miss. 686, 92 So. 820; Cummins v. State, 144 Miss. 634, 110 So. 206.

While it is not always necessary to follow the literal language of the act in framing indictments for statutory offenses, it is essential that either the same words, or words equivalent in meaning and synonymous, should be used.

Roberts v. State, 55 Miss. 421; Richburger v. State, 90 Miss. 806, 44 So. 772; State v. Presley, 91 Miss. 377, 44 So. 827; State v. Traylor, 100 Miss. 544, 56 So. 521.

In alleging a statutory offense, the language of the statute or its equivalent must be used, and "where the language is so specific as to give notice of the act made unlawful, and so exclusive as to prevent its application to other acts, it is sufficient to charge the offense by using only the words of the statute."

2 Miss. Digest 695; Sullivan v. State, 67 Miss. 346, 7 So. 275; State v. Bardwell, 72 Miss. 535, 18 So. 377; Richburger v. State, 90 Miss. 806, 44 So. 772; State v. Hinton, 139 Miss. 513, 104 So. 354; State v. May, 147 Miss. 79, 112 So. 866.

Technical law is a good law under proper circumstances, but not where it shocks common sense. The exact language of a statute need not be used, where what is tantamount is fully set out.

State v. Presley, 91 Miss. 377, 44 So. 827.

Alexander Currie, District Attorney, of Hattiesburg, for the state.

Every statutory element of the crime of murder is charged in this indictment. The word "maliciously" has been held sufficient in an indictment though the statute uses the word "wilfully," it being declared that the word "maliciously" implies wilfullness.

Lyons v. Commonwealth, 178 Ky. 657; Gregory v. Commonwealth (Ky.), 218 S.W. 999; State v. Robbins, 66 Me. 324; Flinn v. Commonwealth, 81 Ky. 186; Funderburk v. State, 75 Miss. 20, 21 So. 658; Ousley v. State, 122 So. 731; Glover v. People, 204 Ill. 170, 68 N.E. 464; State v. Williams, 129 Iowa 72, 105 N.W. 355; White v. White, 132 Wis. 121, 111 N.W. 1116; Daniels v. State, 76 Ark. 84, 88 S.W. 844.

The indictment in the case at bar uses the word "feloniously," and that word is defined to mean "proceeding from an evil heart or purpose."

Ewing v. Commonwealth, 129 Ky. 237; State v. Commonwealth, 94 P. 199; State v. Allen, 34 Mont. 403; Freeman v. State, 57 S.E. 924; Section 1369, Mississippi Code of 1930; State v. Edmunds, 20 S. Dak. 135.

The use of the word "feloniously" has been uniformly held to be a sufficient averment of the intent necessary to constitute the crime.

People v. Willett, 102 N.Y. 251, 6 N.E. 301; People v. Conroy, 97 N.Y. 68; Aikman v. Commonwealth (Ky.), 18 S.W. 937.

The indictment in the case at bar specifically charges that the shooting was done "with the felonious intent then and there to kill and murder him, the said J. L. Odom."

We respectively submit that the indictment meets every requirement of the statute.

People v. Steventon, 9 Cal. 273, 275; Cavatt v. Territory, 98 P. 890, 893.

There is in this state no constitutional right of change of venue. It is regulated by statute, and the statute vests in the presiding judge the discretion to grant the change of venue or not, and the action of the judge in refusing to grant a change of venue, while subject to review, cannot be reversed unless there has been a manifest abuse of discretion.

Stewart v. State, 50 Miss. 587; Bishop v. State, 62 Miss. 299; Regan v. State, 87 Miss. 422; Dalton v. State, 141 Miss. 105.

OPINION

Anderson, J.

Appellant a white man, and Andrew Prince, a negro, were jointly indicted...