Winchester v. State

• Decision Date: 06 June 1932
• Docket Number: 30072
• Citation: Winchester v. State, 163 Miss. 462, 142 So. 454 (Miss. 1932)
• Court: Mississippi Supreme Court
• Parties: WINCHESTER v. STATE

142 So. 454

163 Miss. 462

WINCHESTER v. STATE

No. 30072

Supreme Court of Mississippi

June 6, 1932

(In Banc.)

1 TIME.

Phrase "one entire day before the trial" within statute relating to service of copy of indictment and special venire held period from twelve o'clock at night and ending at twelve o'clock following night (Code 1930 section 1262).

2 TIME.

Service of copy of indictment and special venire on accused at four fifty o'clock on afternoon of day before trial held not "one entire day before the trial" (Code 1930 section 1262).

3. CRIMINAL LAW.

Accused's statement while under arrest, directly bearing on guilt should not be admitted over objection without showing, in absence of jury, that statement was free and voluntary.

4. HOMICIDE.

In homicide prosecution, instruction authorizing jury to infer malice from use of deadly weapon held erroneous.

5. HOMICIDE.

Instruction authorizing jury to imply malice from use of deadly weapon held improper where evidence developed all circumstances attending homicide.

6. HOMICIDE. In homicide prosecution, instruction on subject of insanity as defense held erroneous.

Instruction complained of in substance told jury that law did not recognize every form of insanity as defense to crime, and that, "even if one be insane but still be able to appreciate the difference between moral right and wrong as to a particular act, the law holds him responsible for that act regardless of how insane he may be."

7. HOMICIDE.

Defendant's instructions on manslaughter held properly refused, where under undisputed evidence defendant was either guilty of murder or entitled to acquittal.

8. CBIMINAL LAW. Argument of county attorney relating to defense and absence of denial of killing held improper as comment on defendant's failure to testify (Code 1930, section 1530).

County attorney in argument to jury made the following statements: "What defense has been shown here? There is no denial that he killed her. Did you ever hear of a more bloody thing?" The county attorney also made the following statement in his argument: "Not a single soul has said she was not shot as this Darden woman has told you."

9. CRIMINAL LAW. In homicide prosecution, district attorney's argument relating to instructions Held improper as belittling and disparaging instructions and defense of insanity.

District attorney in argument to jury made a statement in the following language: "Gentlemen of the jury, take this rigmarole of instructions when you go out."

HON. J. D. FATHEREE, Judge.

APPEAL from circuit court of Lauderdale county, HON. J. D. FATHEREE, Judge.

Will O. Winchester was convicted of murder, and he appeals. Reversed, and cause remanded for a new trial.

Reversed and remanded.

J. A. Riddel, J. L. Broadway, and C. D. Shields, all of Meridian, for appellant.

On the day the case was set for call, to-wit the 16th day of February, 1932, the appellant, through his attorneys, filed a written motion for special venire and incorporated in said motion a demand for service of a copy of the indictment and a list of the special venire summoned in said cause at least one entire day before the trial as provided by section 1262 of the Code of 1930. On the same day the case was set for trial at 9 a. m. Friday, February, 19th. The list of the special venire and a copy of the indictment, service of which upon defendant or his counsel was demanded in written motion, as set out above, was served upon counsel for the appellant on the afternoon of February 18th, at 4:50 o'clock. On the convening of court at 9 o'clock on the morning of February 19th, the appellant objected to them being put upon trial for the reason that service of a copy of the indictment and a list of the venire had not been had upon him or his counsel for at least one entire day as demanded by him in written motion, as set out above, and, as required by section 1262, Code of 1930. Upon this objection testimony was heard, after which the court overruled the objection and forced the appellant to trial.

The first error assigned is the action of the court in overruling the foregoing objection. It is manifest from the foregoing and from the testimony in the record on the point that the appellant did not have service of a copy of the indictment and a list of the special venire as is required and guaranteed by section 1262 of the Code of 1930.

Boatwright v. State, 120 Miss. 883, 83 So. 311; O'Quinn v. State, 131 Miss. 511, 95 So. 513; 16 C. J., at pages 792 and 793; 16 C. J., 802, 803, sec. 2041.

The appellant's second assignment of error raises the point that the lower court erred in admitting in evidence the alleged confession or admission against interest of appellant.

Before a confession is received in evidence where it is objected to, it must be shown that it was free and voluntary, and, where objection is made, the proof that it was free and voluntary should precede the admission of the confession.

Hathorn v. State, 138 Miss. 11, 102 So. 771; Fletcher v. State, 131 So. 251; Stepney v. City of Columbia, 127 So. 687.

The lower court erred in granting instruction number two. Instruction number two reads as follows: "The court charges the jury for the state that they may imply malice or infer malice from the use of a deadly weapon."

Smith v. State, 137 So. 96, 98; Cumberland v. State, 110 Miss. 521, 70 So. 695; Walker v. State, 146 Miss. 510, 112 So. 673; Nelson v. State, 129 Miss. 288, 92 So. 66.

The first special bill of exception was taken to the action of the court in overruling appellant's motion to discharge the jury and enter a mistrial, after having sustained appellant's objection to the argument of the county attorney wherein was used the following language:

"What defense has been shown here. There is no denial that he killed her. Did you ever hear of a more bloody thing?"

We contend that it cannot be seriously disputed, but that this is a comment on the failure of the defendant to testify, in direct violation of section 1530 of the Code of 1930.

Guest v. State, 130 So. 908, 158 Miss. 588; Harwell et al. v. State, 129 Miss. 858, 93 So. 366; Gurley v. State, 101 Miss. 190, 57 So. 565; Harris v. State, 96 Miss. 379, 50 So. 626; Prince v. State, 93 Miss. 263, 46 So. 537; Drane v. State, 92 Miss. 180, 45 So. 149; Smith v. State, 87 Miss. 627, 40 So. 229; Reddick v. State, 72 Miss. 1008, 16 So. 490; Sanders v. State, 73 Miss. 444, 18 So. 541; Yarbrough v. State, 70 Miss. 593, 12 So. 551; Sanders v. State, 73 Miss. 444, 18 So. 541; Hoff v. State, 83 Miss. 488, 35 So. 950.

The next special bill of exceptions was taken to the argument of the district attorney, wherein he used as shown by the bill the following language, to-wit:

"Not a single soul has said she was not shot as this Darden woman has told you."

In the third and last bill of exceptions it is shown that the district attorney used the following language, to-wit:

"Gentlemen of the jury, take this rigmarole of instructions when you go out."

It is manifest from this that the trial court agreed with counsel for the state when he called the appellant's instruction "a rigmarole, " and thus conveyed to the jury the idea that these instructions were all nonsense. "Rigmarole" is defined to be "foolish, disconnected talk; nonsense; as an adjective, incoherent, frivolous.

Nelson v. State, 129 Miss. 288, 92, So. 66.

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

The court granted the motion for a special venire and further ordered a copy of the indictment and a copy of those summoned, together with a list of those not summoned, to be delivered to appellant as asked for in his motion. The case was called for trial at nine o'clock on the morning of February 19th and appellant objected because he had not had his one entire day, as required by the statute. The deputy sheriff testified that he delivered a copy of the indictment and a copy of the venire to appellant's counsel at four-fifty o'clock p. m. on the afternoon of February 18th.

Under the statute, section 1262 of the Mississippi Code of 1930, and decisions of this court, the application was timely made. The order of the court entered to this motion was that defendant, or his counsel, be served with a copy of the indictment and a list of the venire, showing who was served and who was not. Under the O'Quinn case, 131 Miss. 511, 95 So. 513, this court held that "one entire day, " as used in this statute, meant from midnight to midnight and that parts of two days could not be pieced together so as to make one entire day. This court has held, further, in the case of Ivey v. State, 154 Miss. 60, 119 So. 507, that it was not necessary for the sheriff to deliver these copies but that the clerk might deliver them, the court holding that these copies constitute neither process nor notice. Appellant also objected to trial within the provisions of the prior decisions of this court in the cases of Collier v. State, 106 Miss. 613, 64 So. 373 and Estes v. State, 127 Miss. 309, 90 So. 80, so that, therefore, there is no element of waiver, as I see it, involved in this case.

If the statute requires a delivery of a list of the venire, showing the officer's return on it, or at least who were found and who were not so found, then I submit to the court that in my opinion the O'Quinn case, supra, controls. If not, then counsel for defendant had a copy of the venire delivered to him in due time and there is no merit in the contention of appellant with reference to this feature of his appeal.

The law seems to make a distinct difference between confessions and admissions against interest. The case of Richburge v State, 90 Miss. 806, 44 So. 772, recognizes the distinction between confessions and admissions...