Wilson v. State

• Decision Date: 26 March 1962
• Docket Number: No. 42139,42139
• Citation: Wilson v. State, 243 Miss. 859, 140 So.2d 275 (Miss. 1962)
• Parties: Willie WILSON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 275

140 So.2d 275

243 Miss. 859

Willie WILSON v. STATE of Mississippi.

No. 42139.

Supreme Court of Mississippi.

March 26, 1962.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., for the State.

Boles, Morris, Talley, McKoin & Ryan, Biloxi, for Willie Wilson.

LEE, Justice.

Whillie Wilson was indicted for the forcible and felonious rape of a female. The jury found him guilty as charged, and he was sentenced by the court to suffer the death penalty. From the judgment entered, he appealed.

Prior to the arraignment, defendant's counsel suggested in writing that his client was then insane and was not capable of making a rational defense, and that this issue should first be settled by a jury. In like manner, by a separate motion, he asked, in accordance with Sec. 2575.5, Code 1942, Rec., that the defendant be examined by a competent psychiatrist, to be selected by the court, in order to determine the defendant's ability to make a defense. Both motions were sustained, and Dr. G. T. Sheffield, a psychiatrist, was appointed to make the examination. A jury was empaneled, and, after hearing the evidence pro and con, returned the following verdict: 'We, the jury, find the defendant sane and mentally capable of conducting a rational defense.' Without detailing the evidence, it is sufficient to say that it fully warranted the jury in returning such verdict.

Defendant's motion for a special venire was sustained, and, at the same time, namely, June 28, 1961, the venire was drawn returnable on July 5th thereafter.

On July 5, 1961, counsel for defendant presented a bill of exceptions to certain rulings of the court allegedly made during the sanity trial. The trial judge did not sign the same; but, on the bottom of the motion, he wrote these words: 'The Court Reporter's record shall be made a part of this Bill of Exceptions and when this is done the same shall then constitute the bill of exceptions as signed by me this 5th day of July, 1961, as I do not recall things happening the way counsel for defendant alleges.' (Emphasis supplied.)

The court also overruled the defendant's motion to quash the indictment on the ground that Negroes were systematically excluded from jury service in Harrison County.

On his appeal here, the appellant has assigned and argues four propositions: The trial court erred (1) in overruling his bill of exceptions to rulings allegedly made during the sanity trial; (2) in overruling his motion to quash the indictment; (3) in overruling his motion for a new trial based on the ground that the verdict of the jury was against the overwhelming weight of the evidence; and (4) in admitting evidence concerning a charge of armed robbery.

THE BILL OF EXCEPTIONS.

Secs. 1531-1535, inclusive, Code of 1942, Rec., deal with the question of bills of exception. The trial judge refused to sign the proposed bill of exceptions, saying 'I do not recall things happening the way counsel for defendant alleges.' In other words, the truth of the case was not fairly stated therein. Sec. 1532 of the Code. Obviously the appellant is bound by the bill of exceptions as signed by the judge. If it in fact stated the truth of the matter, a way was open to the appellant to make it available, even though the judge did not sign it. Secs. 1533, 1534 of the Code. He did not avail himself of such remedy.

In another point, the appellant argues that the trial judge, before the selection of the jury had begun, remarked that defendant was charged with rape and armed robbery. He does not state where such remarks could be found in the record. The Court has not found it. Obviously, the trial judge, by his refusal to sign the bill of exceptions, adjudicated that this did not happen.

The appellant's complaint therein as to the competency of certain jurors is not sustained by the voir dire examination as shown in the record.

The appellant further said that the attorney for the State repeatedly referred to the fact that he had been indicted for the crime of rape. He mentions questions which may be found at pp. 17, 33, 56 and 57 of the record. In the first instance, during the cross-examination of the appellant's grandmother, who was trying to testify that he was insane, counsel for the State elicited from her that she had talked to her grandson on Sunday and she admitted that he told her that he had done wrong and he was sorry for it. In the second instance, the mother of the appellant told the District Attorney that her son looked then, during the trial, just like he did on Saturday before the offense happened on Sunday. In the third instance, during the examination of officer Eddie Van, the District Attorney asked if the witness had talked to the appellant on the night that this crime was committed that afternoon. The court corrected the question so as to say, 'The alleged crime.'

Here was the situation: A suggestion of insanity had been filed. The court was engaged in an effort to determine whether the appellant was, at that time, of such mental capacity as to be able to consult with his counsel and make a reasonable defense. It is common knowledge in this jurisdiction that sanity trials occur in the circuit court only when insanity is a defense to a criminal charge.

This Court in Smith v. State, 95 Miss. 786, 49 So. 945, 27 L.R.A., N.S., 461, held that: 'Where the defense is insanity, general or partial, the door is thrown wide open for the admission of evidence; every act of the party's life is relevant to the issue and admissible in evidence', citing authorities. The same rule was applied in Eatman v. State, 169 Miss. 295, 153 So. 381; Hand v. State, 190 Miss. 314, 200 So. 258; Hinton v. State, 209 Miss. 608, 45 So.2d 805, 46 So.2d 445, appeal dismissed and certiorari denied in the Supreme Court of the United States, 340 U.S. 802, 71 S.Ct. 68, 95 L.Ed. 590; Denham v. State, 218 Miss. 423, 67 So.2d 445. The Smith case, supra, was also cited in Elmore v. State, 143 Miss. 318, 108 So. 722; Hoye v. State, 169 Miss. 111, 152 So. 644; Pullen v. State, 175 Miss. 810, 168 So. 69; Williams v. State, 185 Miss. 449, 188 So. 316; Carter v. State, 199 Miss. 871, 25 So.2d 470; Ratcliff v. State, 201 Miss. 259, 29 So.2d 321; Lewis v. State, 209 Miss. 110, 46 So.2d 78; Rogers v. State, 222 Miss. 690, 76 So.2d 831; Johnson v. State, 223 Miss. 56, 76 So.2d 841, 81 So.2d 558; Keeler v. State, 226 Miss. 199, 84 So.2d 153; Burr v. State, 237 Miss. 338, 114 So.2d 764.

Manifestly the bill of exceptions was both imperfect and insufficient. Under the foregoing authorities, there was no error in overruling it.

THE MOTION TO QUASH THE INDICTMENT.

The defendant, on his motion to quash the indictment, called two witnesses, Ewart D. Lindsey, Circuit Clerk since May 10, 1948, and Boyce Hoellman, District Attorney since February 8, 1953. Lindsey, at the instance of defendant, described how the names of potential jurors were actually selected by the supervisors in accordance with the statutes of the State; that those names were recorded on the minutes of the board of supervisors; that a copy of such list was delivered to the circuit clerk; and that the clerk placed such names in the jury boxes and sealed them. He explained that the application for registration provided no place to show the color of the applicant. Neither 'white' nor 'colored' appeared in such applications. He estimated that about 29,000 white and about 2,300 colored persons were duly registered. He said that Negroes had served on grand juries in such capacities since he has been in office. Two had served on the first grand jury, and he recalled that others, since that time, had served on the grand jury. He said that, when the slips are put in the boxes, there is no way to tell whether the individual is Negro or white; and that there was no discrimination shown between the races in the drawing of the panels. During his tenure of office, he has observed a number of Negroes serving on the juries. There was nothing, prior to the time when they came into the courtroom, to designate jurors by race. He further said that, in proportion to the number of white and colored voters, the number of Negroes selected for jury service at least equaled, if it did not exceed, the proportionate number of white jurors. He knew that the names of Negroes were in the jury lists and boxes in his office at that time.

Boyce Holleman testified that quite a number of Negroes have served on the grand jury during his term of office. He remembered the names of two who served at the December 1959 and the June 1960 terms, and another at a different term which he could not remember. The witness sat in the grand jury room with each of these jurors for a week and talked to them a number of times. He said that a number of colored men had also served on petit juries and that two served during the past week. He said that there was no discrimination in the grand jury room. The Negroes performed a valuable function; and that Negroes have actually been accepted and served on juries. He remembered that one was accepted and served in the deliberations. Either the last week or the week before, two, whose names he gave, served. He remembered a number of such colored persons by face, who had served, but he did not remember their names. He remembered five or six who served on the grand jury whose names he could not give. The trial judge made the following statement in reference to this question: 'Of course the Court also has knowledge of the fact, having served during the last few years, that negroes have served on the Grand Jury in Harrison County, as well as Petit Jury. As a matter of fact, I have noticed of late that it would be an exception not to have a negro on the Grand Jury. We ordinarily do have one on the Grand Jury.'

The evidence of the only two witnesses whom the appellant placed on the stand on this issue, instead of sustaining the allegations of the motion, affirmatively showed that there...