220 Miss. 276 | Miss. | 1954
This case is a companion to that of Luther Carlyle Wheeler v. State, 63 So. 2d 517, Mississippi Advance Sheets No. 24, p. 49, March 21, 1953, not yet reported in the bound volume of Mississippi Reports, Certiorari Denied October 19, 1953, 98 L. Ed. Advance Reports p. 56, Rehearing Denied November 30, 1953, 98 L. Ed. Advance Reports p. 154. After the trial and conviction of Wheeler, appellant was granted a change of venue to another district and the trial judge in that district sustained her motion to quash the indictment against her. Thereafter she was indicted at the November 1952 term of the Circuit Court of Forrest County and did not ask
For brevity we refer to the opinion in thé Wheeler case for a statement of the facts upon which his'conviction was affirmed.’ Since the original indictment returned against appellant at the May 1952 term was quashed, the grounds to quash which were discussed in the Wheeler case have no application here, and, since appellant made no request for a change of venue after her second indictment, what was said in the Whfeeler case with reference to a change of venue has no application here.
1. Appellant’s principal contention for reversal is that under the proof she was entitled to a peremptory instruction because the proof failed to show that she consciously committed or caused to he committed one single element necessary to justify a conviction of the crime of murder. We do not agree with that contention, and we point out some of the proof offered by the State to connect appellant with the crime, as well as some of the admissions by appellant in her own testimony. She met Wheeler in Jacksonville, Florida, about three weeks before policeman Everett was killed on March 9, 1952. They traveled to Mobile, Alabama, in a Chevrolet automobile, and at that place they traded it for the 1941 model maroon colored Buick which was being driven by appellant at the time of the killing. They paid a cash difference in this trade. They went to New Orleans, Louisiana, and then to Hattiesburg, Mississippi, arriving in the afternoon of the day of the killing. They attended a picture show, ate at a restaurant, and drove about the city. After the shooting that night appellant came hack into the main business section of the city and parked the car and mingled with the crowd which had gathered at the city hall and she was in the crowd when Wheeler was
After her apprehension she made a statement, which the proof shows was free and voluntary, in which she said that after attending the picture show and eating, she and Wheeler drove around town and spotted the Ace Weathers Motor Company. Wheeler went in taking the bag of tools with him, and she parked- the car nearby and
Appellant testified in her own behalf and made a rather weak issue on the question as to whether her statement had been freely and voluntarily made. She did not deny that Wheeler had told her to drive and drive like hell if anything ever happens and that he had done all the time in the penitentiary that he was ever going to do and that he Avould never be taken alive. She did testify that when she stopped the car at the scene of the killing Wheeler
As to the guilt of Wheeler, the State offered substantially the same evidence as that which was given in his trial and which is set out in the report of his case.
We are of the opinion that the jury was justified in. finding, as it evidently did find, that Wheeler and appellant entered into a conspiracy to commit the crime of burglary, and that, since both were armed with pistols and Wheeler had told her that he would never be taken alive,, this ■ conspiracy extended to and covered the common purpose to resist arrest with great violence and to kill any person who interfered with or- attempted to apprehend them. This being true, appellant was just as guilty of murder as was Wheeler even though she did not fire the fatal shot. This view is abundantly supported by our authorities.
In the case of Huggins v. State, 149 Miss. 280, 115 So. 213, Huggins and Walton conspired and went together to the store of McCarty for the purpose of robbery or theft; they had only one pistol between them; while McCarty was waiting on a customer at the gasoline pump in front of the store, Huggins entered the store and stole between $25.00 and $30.00 from the cash drawer, and, upon being caught in the act by Mrs. McCarty, Huggins fled the scene and escaped. McCarty then accused Walton with being implicated in the theft, and, with a pistol in his hand, ordered Walton to go into the store and be seated until arrival of the police, for whom Mrs. McCarty telephoned. Before the police arrived Walton shot and killed McCarty. Walton and Huggins were jointly indicted and tried separately. Huggins made the same contention that appellant makes in the case at bar, and in disposing of it the Court said:
“In support of the first assignment of error, the appellant contends that the proved facts and circumstances, together with the confession of appellant, are insufficient to warrant a conviction of appellant for murder. In or
“ ‘Where two have committed a joint larceny, if one of them wounds an officer who is attempting to arrest both, the other cannot be holden with him for the wounding unless they conspired, not only to steal, but to resist also with extreme violence -any who might endeavor to apprehend them.’ ” This Court then quoted from the cases of People v. Marwig, 227 N. Y. 382, 125 N. E. 535, 22 A. L. R. 845; Ruloff v. People, 45 N. Y. 213, 217, and the English case of Rex v. Collison, 4 Carrington and Payne 565, and said:
“We are of the opinion that the facts and circumstances in evidence, together with appellant’s confession, were sufficient to warrant the jury in finding that the appellant and Walton conspired to commit larceny in the store, and agreed between themselves to resist arrest with great violence, or to kill the deceased or anyone who might interfere with or attempt to apprehend them. This brings this case within the doctrine of the foregoing authorities, and we think the court below was correct in refusing the requested peremptory instruction, and in submitting the issue to the jury.”
In the case of Hurd v. State, 137 Miss. 178, 102 So. 293, this Court reviewed at length the evidence to the effect
The same principle was announced in the early case of Lusk v. State, 64 Miss. 845, 850, in these words: “Where parties combine to commit crime the law imputes the guilt of each to all thus engaged, and pronounces all guilty of any crime committed by any in the execution of the common purpose, as one of its natural and probable consequences, even though none of the parties intended at the outset to do the particular thing constituting the crime. ’ ’
2. As to appellant’s testimony that when the police car came up she counseled Wheeler against getting or using the gun, we do not think this was sufficient to absolve her from that moment on of the effect of her previous conspiracy with Wheeler. In 22 C. J. S., page 165, Criminal Law, Sec. 94, it is said: “If one who has counseled or commanded the commission of a crime, or has agreed to take part in it, repents and withdraws, to the knowledge of the other party, before the crime is committed, he will not be liable as an accessory; but in order to escape liability as an accessory before the fact it is
3. Appellant filed a motion to quash the indictment on the ground that the county judge and other prominent citizens of the county had appeared before the grand jury to her prejudice. The indictment was returned on November 6,1952. Appellant was arraigned on November 7,1952, and entered a plea of not guilty and her case was set for trial on November 17, 1952. On November 13, 1952, she filed a motion for a special venire to try the case and the motion was sustained on that day. The venire facias was issued and the selection of a jury began on November 17, 1952. The motion to quash was filed on November 18, 1952, and the trial judge held, and wo think correctly so, that it was filed too late. Section 2450, Code of 3942, provides that “All objections to an indictment for any defect dehors the face thereof, presenting an issue to be tried by the court, shall be taken by motion to quash the indictment, and not otherwise, within the time allowed for demurrer, and with the right to amend, as provided in the last preceding section.” The preceding section, 2449, provides that all objections to an indictment for a defect appearing on the face thereof shall be taken by demurrer “before the issuance of the venire facias in capital cases.” Here the motion to quash was made five days after issuance of the venire
4. Appellant next contends that the trial court erred in admitting evidence of an attempt to steal an automobile belonging to Emmet McKinney from his home at 507 North 19th Avenue. We dealt with this question in the Wheeler case and pointed out that from the report of this attempted theft the police officers who were searching for suspects after the killing of Everett obtained a description which led to the arrest of Wheeler a short time later and to obtaining from his person the pistol which fired the bullet which killed Everett. In the case at bar it was incumbent upon the State to show the guilt of Wheeler, otherwise there would have been no case against Elaine Forman, and the attempted theft of the McKinney car was a necessary link in the chain of circumstances which showed the guilt of Wheeler. Even though the proof of an attempt to steal McKinney’s car did involve a separate crime, it was nevertheless competent. In Hurd v. State, supra, this Court held that while ordinarily under the general rule evidence of other crimes is not admissible, nevertheless where such evidence is relevant to prove the identity of the accused it is competent. See also Collier v. State, 106 Miss. 613, 64 So. 373; Stone v. State, 210 Miss. 218, 49 So. 2d 263; Musselwhite v. State, 212 Miss. 526, 54 So. 2d 911.
Appellant obtained an instruction which told the jury that even though she made a statement to the police officers against her interest, still if the same was not a free and voluntary statement dr if it was obtained by duress, coercion, or by putting her in fear, then it would be the sworn duty of the jury to disregard such statement. Thus it is seen that both the trial judge and the jury passed upon the question whether the statement was free and voluntary and found against appellant on that issue. .As
6. Appellant contends further that the trial court erred in admitting over her objection a woman’s girdle about which she was questioned. On cross-examination the district attorney asked her about numerous articles, such as the clothing and bag of tools which she threw from the automobile, and the pistol which she left in Sears, Roebuck & Company’s store. Then he exhibited a girdle and asked her whose it was and she replied that it was hers. Then she was asked about one certain feature of the girdle and she replied “That’s where I had that money sewed up.” Her counsel objected, the trial court overruled the objection, and the district attorney said “We will withdraw it then, if you don’t want it introduced.” No further question was asked about the girdle and it was not introduced. If there was any error in the questions which the district attorney asked about the girdle, we think it was harmless.
7. Appellant further complains at the admission in rebuttal of the testimony of J. M. Pittman, father-in-law of Everett, concerning a conversation which he had with her while she was in jail, and in which he quoted her as saying “Mr. Pittman, it isn’t, I don’t reckon, necessary for me to tell you how sorry I am we killed your boy.” Proper predicate for this was laid in the cross-examination of appellant. At the beginning of Pittman’s testimony, appellant’s counsel stated that he objected and would like to test the competency of the testimony. The court replied that she was asked about the matter on cross-examination and gave her version of it, and that the State had the right to rebut her testimony. No further objection was made by appellant. The evidence was not a confession but was in rebuttal of what appellant had testified, and we think no error was committed in its admission.
9. It is contended, lastly, that the trial court erred in overruling appellant’s motion for a new trial. Numerous points are raised and we have heretofore dealt with all but two of those which are argued. One is the alleged conduct of the county judge while the jury was being selected. There was no evidence to support this allegation. Moreover, no objection appears to have been made at the time nor does it appear that the same was ever brought to the attention of the trial judge until the filing of the motion for a new trial. Appellant took her chances with the jury before raising any objection, and after her conviction it is too late to raise it. Holmes v. State, 151 Miss. 702, 118 So. 431.
It is also contended that the trial judge virtually coerced the jury into agreeing upon a verdict after they bad reported to him that they were in disagreement. A special bill of exceptions was taken on this point, and it shows (hat after the jury had deliberated about two hours they requested further instructions from the court and were brought back to the court room and' seated in the jury box. One of them arose and said “Judge, we would like to know that if the jury cannot agree on the verdict whether we will have to put that in writing,” and the court replied “Gentlemen, if I understand it correctly, you cannot agree on a verdict” and the juror replied “That is correct” and the court then said “Yes, gentlemen, I think you would have to put it in writing, but go hack and see if you can agree. ’ ’ The jury retired to con
Since we find no merit in any of the grounds relied upon for reversal, the judgment of the lower court is affirmed.
Affirmed.