Wheeler v. State

• Decision Date: 16 March 1953
• Docket Number: No. 38615,38615
• Parties: WHEELER v. STATE.
• Court: Mississippi Supreme Court

Page 517

63 So.2d 517

219 Miss. 129

WHEELER v. STATE.

No. 38615.

Supreme Court of Mississippi.

March 16, 1953.

W. Arlington Jones, Glenn R. Young, Wm. V. Murray, Hattiesburg, for appellant.

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

LEE, Justice.

The grand jury of Forrest County, at the April 1952 term of court, returned an indictment against Luther Carlyle Wheeler and Elaine Forman, jointly, for the murder of Jessie James Everett. After a severance had been granted, the State elected to try Wheeler first, with the result that the jury, which heard the case, returned a verdict of guilty as charged. The judgment ordered Wheeler's death by electrocution, and he appeals.

The State developed the following facts and circumstances, in sequence to wit: Ace Weathers operated an automobile agency at 1502 North Main Street in the City of Hattiesburg. On Sunday evening, March 9, 1952, about 7:30, he went to his place of business for the purpose of turning on the lights in the showroom. He discovered that the place had been burglarized, and called the police department. A few minutes later, policemen Everett and Vinson arrived in answer to his call. Everett went to the rear of the building. Weathers and Vinson went on the inside, where they heard a noise as if someone was in the storeroom. Both hurried back to the front. Weathers last noticed Vinson in the police car, and also observed a 1941 model maroon Buick, being driven by a heavy-set woman, turn the corner and go down Red Street, toward the Hercules Powder Company plant. The police car also traveled the same street, in the general direction of West Fourth Grocery, about ten blocks or three-fourths of a mile distant.

Mrs. L. P. Rush, in a black Cadillac, was traveling down Fourth Street toward Main. As she turned into North Street, her attention was attracted by two cars. A police car with the red light flashing on and off was following an old car. She knew that a pick-up was about to be made. Both cars stopped. No other car was thereabout. Suddenly she heard sounds like firecrackers, and the old car then started off at terrific speed, turned to the right, and disappeared. Mrs. Rush then drove around the block to the intersection of Fourth and North Streets, where she saw a policeman lying near the grocery store, and another lying on the other side.

Mrs. Iva Hamm, who lived on North Street, heard the first shot, ran to the porch, saw two cars, one on each side of the street, and immediately called the police department. When she came back to the porch, the police car was still at the same place, but the other was gone.

Mr. and Mrs. M. G. Merk, in their Mercury, which looked green at night, were driving on North Street and headed toward Fourth Street. At a corner, they observed Mrs. L. P. Rush's Cadillac momentarily stopped. They swung around it, and saw a police car opposite the side of the Fourth Street Grocery. It was parked on the left side of the street, headed south, the right front door was open, and the blinker light was working. They saw a policeman lying on the opposite side of the street. They parked their car about twelve feet from policeman Everett, who was still alive and gasping for breath, and Merk started to walk toward him. At that time, Mrs. Mooney and her daughter came out of the house, hollering, and Merk got back in his car and drove down Fourth Street several houses to find a telephone so that he could call the police department. This being done, he and his wife returned to the scene. Everett was still breathing and four or five persons were then present.

The proof showed that Everett, in uniform, had been shot one time in the breast and was lying on his back, with his feet in the street and his body on the neutral ground. A loaded 38-caliber pistol was between his arm and body. The windows of the car were up, but there were no bullet holes in them. The motor was dead, but the lights were on. Policeman Vinson's body was on the left side of the car, his feet being within two or three feet of the open door.

Bill Anderson was at home, at 411 Dixie Avenue, about 7:30, when he saw a 1941 maroon Buick, driven by a heavy-set woman, traveling at terrific speed, run into a ditch in front of his house. The speed was so great that it also ran out of the ditch. Anderson was an automobile parts man and was positive in his description of the car.

All of the foregoing events occurred between 7:30 and 8 o'clock that evening.

Later policemen Jones, White and Andrews were on patrol duty, when they received over their radio from headquarters a report that someone had attempted to steal Emmett McKinney's automobile at his home on 507 North Nineteenth Avenue, and that McKinney was forced into his house at pistol point. These policemen knew McKinney to be a reputable citizen, and proceeded immediately to his home. The radio report was confirmed, and McKinney described the culprit as being a man five feet seven or eight inches tall, wearing a water repellent jacket with a fur collar, khaki pants, and a brown felt hat. They radioed this description to the other officers, and a car, in which policemen Maddox, Sullivan and Creel were patrolling, acknowledged receipt of the description. Shortly afterwards, these three policemen were patrolling on Hardy Street when they observed a man, walking toward town, who fitted the identical description of the man who had attempted to steal McKinney's automobile. They hailed him, put him under arrest, and as a result of the search incident thereto, took from his person a 38-caliber Smith & Wesson pistol and a considerable number of cartridges from both pockets. Thereupon Maddox asked the man, later to be identified as Luther Carlyle Wheeler, why he shot those policeman, and his reply was, 'Because the G_____ d_____ sons of b_____s shot at me.'

The bullet from the body of policeman Everett, together with the pistol which was taken from Wheeler, were forwarded to the Federal Bureau of Investigation at Washington, D. C., and one of its firearms experts testified that the bullet was fired from the pistol.

Several days after the killing, a 1941 maroon Buick car, without a tag, but with two tags lying near by, was found in an abandoned condition, on a log road, several miles from Hattiesburg. From the car and a radio therein were lifted several fingerprints. Prints of Wheeler were taken after his arrest. All of these prints were forwarded to the Federal Bureau of Investigation, and an expert from that office identified the fingerprints from the car and radio as those of Wheeler and Elaine Forman.

Wheeler testified for himself that he was from Jacksonville, Florida, and is a typewriter mechanic. He and Elaine Forman arrived at Hattiesburg about two o'clock that afternoon. They ate and went to a movie. They then ate again and went out in their 1941 maroon Buick, with no particular business in mind, though he was looking for a boarding house. His version was that, as he and Elaine Forman were driving at about twenty miles an hour, he heard a siren, then a shot, and saw two cars behind him. He immediately stopped. The officers got out of their car and went to the other car. There was some talk between them about tools. The officers then brought the two men over to his car. One of the officers first opened the car door and then the trunk, and told him to get out. He explained that he had done nothing. As he got out, one of the officers his him on the head and knocked him to the ground. They then told him to leave, but he was in a dazed condition, and could not do so. About that time, shooting started. He tried to get under his car, but Elaine Forman became scared and drove off. When the shooting was over, someone in the other car, which was green, threw a bag at him. He picked it up and found that it contained a pistol and cartridges which the officers took from his person. He then tried to flage a car so that he could go to town and report what had happened, but the driver would not stop. He was frightened, and for that reason, he crossed the railroad tracks, sat down and thought about the matter for about two hours. Finally he decided to go to town. It was while he was on his way that he was arrested. He denied that he shot the policemen, and denied that he told the officers who arrested him that he shot because the policemen were shooting at him. He admitted prior convictions on three different charges of burglary.

Mrs. Dan Doody, and her two daughters, Joyce and Mrs. L. W. Booker, testified that they were in the Moody home on the east side of the street, at the corner of West Fourth and North Streets, when they heard shooting. After it was over and they went out of the house, a man on the west side of North Street--Everett--was calling for help. The only two cars in the street an that time were the police car and a green car. Both front doors of the police car were open, its lights were on, and the red light was blinking. The green car took off down Fourth Street.

Evidently the purpose of their evidence about the green car was to corroborate Wheeler's version that the killers were in a green car, and that they tossed the bag to him after Elaine Forman had driven the 1941 maroon Buick away. But the evidence by the State negatives this theory. It puts a green car at the scene--Mr. and Mrs. Merk's Mercury--and explains that the green car seen by the Mooneys was in fact the Merk car, and that it came upon the scene after the shooting occurred, and after Elaine Forman had driven the Buick away.

Wheeler's theory, that he was a victim of circumstances, was in direct conflict with the State's theory, that he had burglarized the Weathers establishment, and, as policemen Everett and Vinson pursued and sought to apprehend him, he shot them to death.

The evidence, both direct and circumstantial, presented an issue for the jury, and there was no error in overruling the appellant's ...