BELLEW v. StateBELLEW v. State
The appellants, Preston Bellew and Tommy Bellew, were tried and convicted in the Circuit Court of Harrison County on an indictment which charged that Peggy Goudelock, Preston Bellew, Tommy Bellew, Douglas Thomas and Ruth Johnson, “did unlawfully, wilfully, feloniously and knowingly conceal and harbor one Dale Morris, an escaped prisoner, charged with the crime of murder, who had been confined as a prisoner awaiting trial for murder under the order of the Circuit Court of Hancock County, Mississippi.” The two appellants filed motions for a new trial. The motions were overruled, and a judgment was entered sentencing each of them to imprisonment in the state penitentiary for a term of three years. From that judgment they prosecute this appeal.
The record shows that Dale Morris had been indicted by the grand jury in the Circuit Court of Hancock County, at the March 1956 term of the court, on a charge of murder in the killing of Charlie Flink. At the time of his escape he was confined in the Harrison County jail at Gulfport, under an order of the court, to await trial on the murder indictment. Morris escaped from the county jail sometime during the night of June 6, 1957, and remained at large several weeks before he was recaptured and returned to the Harrison County jail. Claude Miller, a deputy sheriff who lived at Long Beach, testified that when he left the jail to go to his home in the late afternoon of June 6, Morris was confined in his security cell on the east side of the third floor of the jail. Miller stated that he was notified of the escape about one o’clock that night; and that he went to the
Dale Morris, Douglas Thomas, Peggy G-oudelock and Ruth Johnson testified as witnesses for the State; and in view of the nature of the questions presented for our decision on this appeal, it is necessary that a brief summary be given of their testimony and the testimony of the appellants and other witnesses.
Dale Morris testified that he was confined in a cell on the third floor of the jail with several other prisoners, including Aden Bellew, a brother of the appellants, during the night of June 6, and that he got the wire cutters, which he used in effecting his escape, from Aden Bellew. Morris stated that he was up on the sun deck, and that he clipped the wire and got out of the cage and came down the wall. He then crossed over the street, and found an automobile waiting for him. The driver of the car was a colored man whose name he did not remember. They drove for about half an hour, and stopped in the woods close to Preston Bellew’s mailbox, which was located several miles north of the City of Biloxi in the White Plains community. Morris got out of the car and whistled. Someone answered, and Preston Bellew and Douglas Thomas appeared on the scene with sacks of groceries and other things. The colored man drove off, and left Morris there with Bellew and Thomas. The two men carried the groceries to a place about 200 yards from the road, and told Morris to stay there that night and there would be somebody over in the morning with some water. Morris stayed there that night, and the next day Douglas Thomas brought him some water, and that evening Preston Bellew moved him over to a heavily wooded area where he set up camp. Morris remained there in the camp approximately one month. Morris
Morris stated that he had Ruth Johnson call Peggy Goudelock, who was in California at that time, and Peggy came and stayed out there with him four or five days, and then he and Peggy left and went west. Peggy arrived at Preston Bellew’s house late at night, and Preston carried Peggy over to Morris ’ camp. The next morning Morris went with Preston over to Preston’s house, and he and Preston pulled Peggy’s car over behind some bushes and Morris covered it over in part with brush. Morris stated that, when he and Peggy were ready to leave, Preston Bellew and Ruth Johnson, at Tommy Bellew’s suggestion, showed them the way out. ‘ ‘ They drove through the back road to where we could find the highway.” Morris and Peggy then crossed Highway 49 and went on to Poplarville. Peggy’s car had a Mississippi license plate on it when Peggy got to the camp; and Preston Bellew and Ruth Johnson got some Louisiana license plates off of another car, and Morris put the Louisiana license plates on Peggy’s car. Morris stated that it was more than a month after he escaped from the Harrison County jail before he left Mississippi.
On cross-examination Morris was asked whether he had given the district attorney a statement of the facts in the case. His answer was that he had related the facts as they happened. He did not know whether the facts had been set down in writing or not; but he had
Peggy Goudelock testified that she had lived in Gulf-port during the last several years, and that she became acquainted with Dale Morris when he was in the Harrison County jail. She learned of his whereabouts three or four weeks after his escape. She was in California at that time, and Ruth Johnson called her and told her where Morris was. She had been advised by the F.B.I. that the authorities were looking for Morris. Peggy
Ruth Johnson testified that the wire cutters which had been introduced in evidence were wire cutters which she had gotten from Tommy Bellew at his home in Biloxi and had carried to the jail in her purse. She had asked Tommy Bellew for them, and Tommy went across the street and got them out of an old truck. She told Tommy that Aden wanted them, meaning Aden Bellew who was in jail at the time. She stated that she knew Johnnie Brewer, the Negro that carried Morris away from the jail when he escaped, and that she showed Johnnie where to go and where to take Morris after his escape. She stated that Aden Bellew gave her a list of groceries and supplies and told her to take them to Preston Bellew’s house, and that she got the groceries and supplies and took them to Preston Bellew’s house, and put them in a Henry J. car sitting there in front of the house. She stated that she saw Morris with Preston Bellew behind the big house on Aden Bellew’s place about two weeks after he broke jail. She stated that she saw Tommy Bellew at the Bellew place on two oc
Both of the appellants testified in their own behalf, and both denied specifically that they.had anything to do with the harboring and concealment of Dale Morris after his escape from the county jail.
Tommy Bellew testified that he was living in Biloxi, and had lived there during the last five years. He owned his own home, and was engaged in the operation of a gasoline service station for the Gulf Coast Oil Company. He had been engaged in that business 7% years. He had a wife and two children. He went to work at 4:00 o ’clock in the morning and got off from work about 1:00 o’clock in the afternoon. Tommy stated that he had made two trips to the old home place, known as the Aden Bellew place, during the early summer. He made one trip up there to fix an electric wire for Ruth Johnson, so that she could see how to milk her' cow. His wife and one of his children went with him on that trip. He made another trip up there with Grady Rushing to move Ruth Johnson when she wanted to leave the Aden Bellew 'place. Tommy stated that he had no information that Dale Morris was anywhere in that area at that time; and he specifically denied that he had gone up there
Preston Bellew testified that he lived about 12 miles north of Biloxi on Highway 57; that he had four children, all of whom were grown; that he had been working for the county as a member of the road crew of District No. 5 for more than a year; and that he was working for the county at the time it was said that Dale Morris escaped. He stated that he had never seen Dale Morris in the White Plains community. He denied that he had met Dale Morris with some sacks the night that he escaped from the county jail, or that he had carried him any food or water, or had done anything* to help conceal him from the authorities. He denied that he had ever given Dale Morris a pistol of any kind. He denied that he had anything to do with changing the automobile license plates on Peggy Goudelock’s car; and he denied that he and Tommy had given any directions to Peggy and Morris as to how to get out of the White Plains community, or how to get to the highway.
Mildred Bellew, Tommy Bellew’s wife, testified that she made two trips with Tommy to the Bellew place in the White Plains community during the summer. One time Tommy went out there to fix an electric wire that had fallen down, and she went with him. The next time Tommy went out there to move Ruth Johnson to her sister’s home. On that occasion Mildred went in Ruth
The first point argued by the appellants’ attorneys as ground for reversal of the judgment of the lower court is that Section 2142.5, Code of 1942, the statute under which the indictment was returned, is unconstitutional for the reason that it contains two subject matters and prescribes punishment for a misdemeanor and a felony in one statute. But we think there is no merit in that contention.
“ Crimes are classified by some statutes according to the punishment actually imposed. Some courts have declared that where a crime may be punished as a misde
This Court has adopted the majority rule that, when the court or the jury is given the discretion to fix the punishment for an offense by imprisonment in the penitentiary, or by fine or confinement in the county jail, such an offense is held to be a felony regardless of the penalty actually imposed. State v. Sansome,
It is next argued by the appellants’ attorneys that the indictment returned against the appellants in this case is insufficient to charge an offense under Section 2142.5, Code of 1942, for the reason that the indictment fails to set forth the means by which the appellants concealed and harbored the escaped prisoner. But that contention was made and rejected by this Court in State v. Needham,
It is next argued that the court erred in overruling a motion made by the appellants ’ attorney at the beginning of the trial that the district attorney be required to produce, and to make available for the inspection of the appellants’ attorney, statements made by some of the State’s witnesses to the district attorney or the county attorney relative to the appellants’ actions in concealing and harboring Dale Morris during the four weeks period immediately following- his escape from the Harrison County jail. The purpose of the motion was to require the production of statements previously given to the State’s attorneys by Dale Morris, Douglas Thomas, Peggy G-oudelock and Ruth Johnson, upon which the appellants’ attorney assumed the indictment was based, and which might be useful to the appellants’ attorney in cross-examining the witnesses.
We think there was no error in the action of the trial judge in refusing to order the district attorney to produce and make available for inspection by the appellants’ attorney statements given by the State’s witnesses to the prosecuting attorney before the trial. This Court has held in several cases that the defendant in a criminal case is not entitled to a bill of particulars. Westbrooks v. State,
“As a general rule, accused is not entitled to an inspection of the prosecution’s evidence; the remedy is not available for exploratory purposes. It may not be had of private documents, or of documents or articles which are not evidence material to the crime or defense and which would not be admissible or would be admissible only by way of impeachment. Thus an inspection may not be had before trial of mere mnemonic instruments, whereby the prosecutor may refresh his recollection and that of the witnesses, or of statements by witnesses or codefendants or participants in the crime.”
See also People v. Nields (1924),
In the case of People ex rel. Lemon, Dist. Atty. v. Supreme Court of the State of New York (1927),
In the case of People v. Moretti (1955), 6 Ill 2d 494,
In the case of State v. Kelton (Mo. 1957),
In the case that we have here, Peggy Goudelock was questioned at length by the appellants’ attorney on cross-examination about the statement which she had made in the presence of the sheriff and the county attorney; and there is nothing in the record to indicate that her statement to the officers before the trial differed in any respect from the statement which she made to the jury during the trial. The sheriff testified later for the State and was not questioned by the appellants ’ attorney about the statement which Peggy had made to him and the county attorney. Dale Morris stated on cross-examination that he had related to the district attorney the facts as they had happened, but he had signed no written statement. Douglas Thomas and Ruth Johnson were not questioned about statements which they had made to the prosecuting attorney before the trial. None of the statements made by the witnesses to the State’s attorneys before the trial were offered in evidence or used by the witnesses to refresh their recollections; and we think there was no error in the court’s refusal to enter an order requiring the district attorney to produce such statements, or his own notes or memoranda concerning the facts to be proved by each witness, and make the same available for the use of the appellants’ attorney on his cross-examination of the witnesses, and if there was error, such error was harmless.
It is next argued on behalf of. the appellants that the trial court erred in admitting evidence relat
It was necessary in this case that the State prove that Dale Morris was in lawful custody at the time of his escape, that he escaped from such lawful custody, and that the appellants had knowingly concealed or harbored him after his escape; and evidence to establish all of those facts was competent. The fact that three of the State’s witnesses had been indicted jointly with the appellants and had pleaded guilty to the charge, and the facts relating to their joint participation with the appellants in the concealment and harboring of Dale Morris after his escape, were facts relevant to the issue which the jury had to decide; and testimony to establish those facts was properly admitted, even though that testimony showed that Dalé Morris was held as a prisoner on a charge of murder and that some one or more of the appellants’ co-indictees had aided in his escape, and even though that testimony showed that the appellants’ brother, Aden Bellew, who was confined in jail with Morris awaiting trial on another charge, had aided in the escape.
“By MR. HEWES: When you deliberate on the case I want you to do what your moral senses tell you is right, and I believe that when you do that you will find these two defendants guilty as charged, and you will show to the people of Harrison County that a person who has killed another is not going to be allowed to be harbored and concealed by a citizen of this county and given a gun where he can go out there and kill some more.
By MR. SEKUL: I object to that form of argument, and move for a mistrial, May it please the Court. There is nothing concerning a killing in this case, and it is highly prejudicial.
BY MR. HEWES: Dale Morris killed a man, and they gave him a gun. That’s the testimony.
BY MR. SEKUL: Put that in the record, Mrs. Tootle, and I further move for a mistrial on that ground.
BY THE COURT: Of course at the time of the alleged incident Dale Morris only stood charged with murder. So I think it would have been better had the County Attorney said they had concealed a man who was charged with murder, rather than a man who killed some one. I will sustain the objection to that extent. I will overrule the motion for a mistrial. ’ ’
We think that the action of the Court in sustaining the objection to the county attorney’s argument to the extent mentioned above was proper; and there was no error in the court’s refusal to sustain the motion for
It is next argued that the court erred in refusing to grant three instructions requested by the defendants, which appear on pages 23, 24, and 25 of the record. But there was no error in the court’s refusal to grant those instructions. The first instruction was designed to advise the jury as to the weight to be given to the testimony of a defendant who testifies as a witness in his behalf, and is an almost exact copy of the instruction which this Court refused to approve in Conn v. State,
Finally it is argued that the trial court erred in overruling the appellants’ motion for a new trial on the ground that the verdict of the jury was contrary to the weight of the evidence. On that question there is a difference of opinion among the members of the Court. All of the judges agree that the evidence was sufficient to sustain the verdict of the jury as to the appellant, Preston Bellew, and that there was no error in the action of the trial court in overruling the motion for a new trial as to him. A majority of the judges, namely, Judges Hall, Lee, Holmes, Ethridge and Gillespie, are of the opinion that the evidence was sufficient to sustain the verdict as to the appellant, Tommy Bellew, and that there was no error in the court’s action in overruling the motion for a new trial as to him. But four of the judges, namely, Chief Justice McGehee and Judges Boberds, Kyle and Arrington are of the opinion that the verdict as to Tommy Bellew is contrary to the weight of the evidence and that the court should have sustained
A majority of the judges, however, are of the opinion that the evidence in the record is sufficient to support the verdict of the jury as to Tommy, as well as Preston, and the judgment of the lower court is therefore affirmed as to both appellants.
Affirmed.