Jones v. State

98 So. 150 | Miss. | 1923

Ethridge, J.,

delivered the opinion of the court.

The appellant, J. M. Jones, was indicted and convicted of the murder of A. Kellis Rogers, and from said conviction appeals.

The deceased, Rogers, and the appellant, Jones, lived in the village of Plantersville, on the Frisco Railroad, in Lee county. In October, 1921, the deceased was found near a pile of lumber close to the railroad enbankment in Plantersville in an unconscious condition. A blow had been struck on bis bead, and blood bad formed in tbe dirt where be was lying, and a stick was found by tbe body. Tbe sheriff of tbe county had passed through tbe village between five and five'thirty o’clock in an automobile with tbe lights burning on bis car, it being dark at tbe time, and be testified that tbe deceased was not there at that time, and if be bad been be would' have seen him.

Tbe deceased was postmaster, and also bad a contract to carry tbe mail to and from tbe trains, and one of tbe trains passed Plantersville near six o’clock in tbe afternoon, and tbe porter testified that be looked out for Mr. Rogers, who was generally standing close by for the purpose of exchanging tbe mail, and at first be did not see him, but saw him apparently crawling or wabbling along pushing a cart in which tbe mail was carried from, tbe postoffice to tbe station, and that be ran out and got tbe mail, and thought that the deceased was then drunk, but paid no particular attention to him; that be caught tbe car., and looked back and saw that tbe car cleared Mr. Rogers, and went on bis journey on tbe train.

As Mr. Immons, tbe sheriff, was going toward bis home, and after be left the highway, a lumber truck approached going to Plantersville. This was some seven or eight miles from Plantersville, and tbe lumber truck traveled at about fifteen miles per hour. When it reached Plantersville, and was unloading tbe lumber, tbe appellant came up to Rogers’ bouse, and called to some one. And tbe truck drove up and asked him what tbe trouble was, and be stated that Mr. Rogers was down there, and appeared to be very sick; that be wanted to get him to tbe bouse. Tbe driver and some other people went with tbe appellant down near tbe depot, where Mr. Rogers was lying, and tbe appellant went on into tbe depot, and did not assist them in getting Mr. Rogers to tbe bouse. Tbe driver of tbe truck stated that be got down and lifted Mr. Rogers,, and Mr. Rogers looked squarely in bis face, but was unable to say anything, and that in bending over him Rogers’ breath came squarely in Ms face, and that Rogers was not intoxicated, and did not have liquor upon Ms breath.

Two other witnesses testified that just before this they were coming down the railroad with a lantern, and that the appellant called to them, and asked them to stay with Mr. Rogers until he could get some one to get him to the house; that Rogers was very sick. Two other witnesses testified that, when the truck came up to the lumber yard, they were near where the deceased was afterwards found, and ran to the truck to get to go back'home on.it, and that they did not see the deceased.

The appellant was station agent at the railroad depot, but did not have the depot lighted, as was his custom, until a very few minutes before the train arrived.

The porter on the train above mentioned testified that Mr. Jones usually came out to the train every evening, but that he noticed this evening that he did not come out, but as the train pulled out he saw Mr. J ones looking out of the window of the depot.

The deceased had the pocket and part of one trousers leg torn away so as to expose -his underclothing, the pocket being torn out. The deceased never was able to make a statement, and died about two days afterwards.

The witnesses who testified as to appellant, Jones, talking at the truck stated that he appeared to be excited and nervous.

It seems that there was no arrest of Jones until the 1st of January, 1923, and that he stayed in Plantersville a portion of the intervening time, and for a time carried the mail from the post office to the depot after Rogers’ death — a contract which he had formerly had, but which he had lost through Rogers ’ underbidding- him. Later, however, this contract was awarded to the son of the deceased. Jones lived a portion of the time with his daughter at Plantersville, but later went to Chicago and Louisville, Ky., and finally settled or located in Chilli-cotlie, Tex., where he Remained until about the 1st of January, when he was induced to come to Tupelo, and on his arrival there was taken by the sheriff np to a. room where two Burns detectives were, and had a conversation with him, which will be referred to further on.

It appears that after the death of Rogers the sheriff tried to find out who assaulted him, hut could not make much progress in that direction. Finally some citizens of the county made up a purse, and secured detectives from the Burns Detective Agency at Memphis, who continued the investigation, and finally reached the conclusion that Jones was the guilty agent, and got the sheriff to induce Jones to return to Tupelo for an interview. When Jones was carried into the hotel room'he was engaged in a conversation which led up to the death of Rogers, and he was asked by one of the detectives what he knew about it, and he stated that he did not kill him. Whereupon the detective stated: “Mr. Jones, you incriminate yourself; We have not accused you of being guilty. ’ ’ Exactly what transpired from then until the confession was obtained is not fully disclosed. But Jones was urged to make a confession, and seemed to have become greatly excited about a mob, being impressed with the idea that he would be mobbed, and being in great fear thereof. He was then urged that it would be best for him to make a clean breast of it, and it would be lighter on him, or better for him to do so. This statement was made while he was in the room with the sheriff and the detectives, and is testified to by the sheriff. Finally Jones confessed, and implicated a negro in the crime with him, stating that he (Jones) and the negro planned to rob the deceased, and that the negro struck the blow. Thereupon the county attorney was sent for, and Jones taken before a justice of the peaee, and after the county attorney came and before he took the confession in writing he stated to Jones that he (Jones) did not have to make a statement, but what he said would be used against him, and that he had no inducements to offer him. Whereupon Jones made the statement, which was taken down in writing, and after-wards introduced in evidence over the objection and exception of Jones.

The appellant, Jones, was in the room with the detectives for something like three or three and one-half hours, during which time they were trying to procure this writing. The confession was taken and reduced to writing by the county attorney within about thirty minutes after the confession was fully made. Appellant was then taken to jail at New Albany for safekeeping, and the sheriff went to Artesia to arrest the negro implicated by the appellant.

The negro was arrested, and an examination of him was made, and the sheriff and the detectives reached the conclusion that Jones’ statement implicating the negro was untrue. Thereupon they proceeded to New Albany and had the second interview with Jones, who was very much disturbed and afraid about a mob, and substantially the same proceedings were had as in the hotel, Jones being urged to make a truthful statement about it, and being told that it would be better for him to do so and to make a full and complete statement as to the truth of it. Thereupon he made his second statement, saying that that part of the confession implicating the negro was false, that he did it himself, and that he struck the blow and robbed the deceased of forty dollars.

The confession made in the hotel and the jail at New Albany were excluded by the trial judge, but the confession taken down by the county attorney was admitted in evidence over the objection and exception of the defendant.

It further appeared that after making the confession at the. New Albany jail the appellant made a third statement denying that he had any knowledge of or participation in the killing of the deceased.

A motion was made for a change of venue, and upon this motion testimony of various citizens was taken, including the publishers of two newspapers in the city of Tupelo, who produced files of the paper giving an account of the confessions made by Jones, and testifying, one that his paper had a. circulation of one thousand five hundred in Lee county, and the other that his had about one thousand. Various citizens from the several parts of thé county were produced and examined, and testified that they had heard of the confession, and that the matter had been discussed in their several communities, but nearly all of the witnesses testified that they believed that the appellant could get a fair and impartial trial, and that they had heard that he had denied the confession, and that they did not believe there was any more notoriety or prejudice in the appellant’s case than in other murder cases. The motion for a change of venue was overruled, and the ruling of the court assigned for error here.

We do not think the court erred in overruling the motion under the facts contained in this record.

After the overruling of the motion a special venire was ordered and a jury impaneled therefrom, the trial judge propounding the questions to the jurors touching their qualifications, etc., and when a jury of twelve was accepted by the state for cause and tendered to the defendant he made the following motion:

“State of Mississippi v. J. M. Jones.

“Comes now the defendant in the above-styled cause by his attorney, and moves the court for permission to ask the jurors questions direct both for challenges for cause and for peremptory challenges in the place of propounding such questions to the jurors through the court when the jury is being impaneled in the above-styled cause.

‘ ‘ This motion is predicated on the law of the legislature of the stale of Mississippi passed at its 1922 session, and is found in the sheet acts thereof at page 377 thereof, and is chapter 294 in said laws. ’ ’

To which motion the court made the following ruling: “Which motion is overruled because the statute relied upon is unconstitutional, and one which the legislature of the state 0/ Mississippi was powerless to enact, as it seeks to take the inherent power of the circuit court away and place the running of the courts in the hands of the legislature. But the court here and now offers to ask the whole jury and any individual juror any reasonable questions touching their qualifications as counsel may request. ’ ’

And this ruling is assigned for error.

Chapter 294, Laws of 1922, read as follows: “That'the parties or their attorneys in all jury trials shall have the right to .question jurors who are beiitg impaneled with reference to challenges for cause, and for peremptory 'challenges, and it shall not be necessary to propound the questions through the presiding judge, but they may be asked by the attorneys or by litigants not represented by attorneys.

“Sec. 2. That all laws and parts of laws and all rules of court in conflict herewith be and the same are hereby repealed.”

The question presented by this assignment is whether or not it is reversible error for the court to deny the right given the appellant under this chapter, and whether or not the statute violates the Constitution. We do not know how the court below construed the statute, but from the above remarks we assume that it construed the statute to mean that all control of the court over the impaneling of the jurors- so far as propounding questions was concerned was taken away. In- our opinion the statute intends to confer the right upon the parties or their attorneys to personally and directly interrogate the prospective jurors as to their qualifications, opinions, and relations generally, so far as it would be bearing upon the issues being tried, but that it did not intend and does not mean that the court does not retain control over'such examination to see that the privilege was not abused, and that unnecessary delays did not take place under the.guise of propounding questions under the statute, the consistency and' propriety of the questions being subject to the control of the judge as other examinations. As we view the statute, it is a regulation of procedure in reference to qualifying jurors, and does not impair the power of the circuit judge to judge of the qualification of the jury or as to the propriety or legality of the questions propounded, and does not unduly or unnecessarily impair any function necessary to be exercised to secure the fair and impartial jury contemplated by the statute.

The legislature has passed various statutes bearing on the subject of impaneling juries and the conduct of trials in the circuit court. The legislature in 1836 passed an act providing there should be no challenge to the array except for fraud in the officer summoning the jury, and that statute was attacked as being unconstitutional. But in the ease of Hare v. State, 4 How. 187, 1 Morris’ State Cases, 133, the court held the statute constitutional. And this case was approved again by the court in King v. State, 5 How. 730.

In Dowling v. State, 5 Smedes & M. 654, 1 Morris’ State Cases, 280, the statute limiting the number of peremptory challenges in a capital felony to twelve was attacked as being unconstitutional, and the constitutionality of the statute was upheld by he court.

In Green v. State, 72 Miss. 522, 17 So. 381, it was held that section 2355, Code of 1892, providing that any person otherwise competent who shall make oath that he is impartial in the case shall be a competent juror in any criminal case, notwithstanding he has an impression or an opinion as to the guilt or innocence of the accused,if it appear to the satisfaction of the court that he has no bias or feeling or prejudice in the case, and no desire to reach any result in it except that to which the evidence may conduct, hut any juror shall be excluded if the court be of the opinion that he cannot try the case impartially, and the exclusion shall not be assignable for error, this court held that it would not impair the right to an impartial jury under section 26 of the. Constitution of 1890. The court, in the conclusion of its opinion in that case, said: “We are entirely satisfied that it was within the legislative power to change the rule as has been done, and that in the present case the juror was tightly held to be competent.’7 ,

In case of Hare v. State, 4 How. 187, the court, at page 198 of that report, in discussing the constitutionality, said: “But I cannot regard the act of 1836 as subject to this objection. It does not take away the right, but only .'provides the method of enjoying it.”

So it seems here that the statute does not take away the right of the court to impanel a jury, but merely regulates the procedure.

Section 2177, Hemingway’s Code (section 2685, Code of 1906), which is the section dealt with in Green v. State, supra, materially changes the law as it existed prior to its enactment as to who is a fair and impartial juror in a case. But the validity of the statute as construed by the court has been upheld ih many cases.

In Gibson v. State, 70 Miss. 554, 12 So. 582, it was provided that, under section 1423, Code of 1892, which is section 1496, Code of 1906, and section 1254 of Hemingway’s Code, providing that all peremptory challenges by the state shall be made before the jury is presented to the prisoner, and in all cases the accused shall have presented to him a full panel before being called upon to make his peremptory challenges, was involved in the case, and the conviction was reversed because the right ‘created by the statute had been infringed by the court below in compelling him to exercise his rights before a full panel was tendered him.

There are many other regulations of procedure that affect the judge’s functions, and this court has reversed numerous cases for infraction of the statutory rights given by these statutes. For instance, in section 577, Hemingway’s Code (section 793, Code of 1906), the judge is prohibited from summing up or commenting on the testimony, and prohibited from giving instructions on his own motion, and requires all instructions to be in writing. Under this section as construed it had been held that a judge could not tell the jury what the law was, except as asked by the litigants, and it must then be in writing. This seems to be nearer an impairment of the inherent powers of the court than the statute before us.

The general rule is'that the legislature may prescribe rules for the government and enforcement of rights secured by the Constitution so long as such legislative act does not amount ito a practical denial of the right. The court does not merely consist of the circuit judge’, but consists of the juries, officers, and judge, and the statute before us does not impair the constitutional functions of the court.

The next question for consideration is whether the denial of the rights secured by the statute constitutes reversible error. Section 2177, Hemingway’s Code (sec-' tion 2685, Code of 1906), reads as follows:

“Any person, otherwise competent, who will make oath that he is impartial in the case, shall be competent as a juror in any criminal case, notwithstanding the fact that he has an impression or an opinion as to the guilt or innocence of the accused, if it appear to the satisfaction of the court that he has no bias or feeling or prejudice in the case, and no desire to reach any result in it, except that to which the evidence may conduct; but any juror shall be excluded, if the court be of the opinion that he cannot try the case impartially, and the exclusion shall not be assignable for error.”

It will be seen from a reading of the statute that it makes the opinion of the jury and its fairness and impartiality an important factor to both the state and the defendant. It materially alters the law existing before the enactment of the statute, and a review of the. decisions of the court before and after the enactment of the statute will show how important to both the state and the defendant the juror’s state of mind is.

In the case of Sam v. State, 13 Smedes & M. 189, 1 Morris’ State Cases, 430, the court considered, at length the law on the subject of impartiality of jurors, and reached the conclusion that no rule of universal application could be laid down; that it is the duty of the court to see that an impartial jury is impaneled and composed of men above all exception; that the great value of trial by jury consists in its fairness and impartiality, and the right of trial by such a jury is secured by the Constitution; that a juror is impartial when his mind is not inclined to either side, and he is partial if it has taken a direction in favor of either; that this direction may be so slight as to be no impediment to arriving at a just conclusion, or it may be so strong* as to prevent the judgment from having fair scope; in the one case he would be competent and the other not; that his competency must depend upon the nature and character of the opinion, and not on the source from which it is derived nor on the fact that it has been concealed or expressed; that the belief of a juror that he can do justice between the parties can have but little influence in determining his competency; that circumstances may exist which render a relaxation of the rule necessary, but the relaxation when allowed should go no further than the necessity demanded; and that the nearer the approach to absolute freedom from preconceived opinion the nearer is the approach to perfection of the systfem of trial by jury.

Substantially to the same effect is the case of Logan v. State, 50 Miss. 269.

In Brown v. State, 57 Miss. 424, it was held that the intention of the law is that the jury shall come to consideration of the case unaffected by any previous judgment, opinion, or bias either as respects the parties or subject-matter in controversy.

In the case of Skinner v. State, 53 Miss. 399, it was held that in a murder case a juror is not incompetent because he states on voir dire that he has heard the killing-talked of by several persons at the time it occurred, but does not think he formed or expresssed.an opinion as to his guilt or innocence.

In Penn v. State, 62 Miss. 450, it was held that the fact that a juror in a capital case had conversed with one of the state’s witnesses concerning the case does not render.him incompetent if he has no fixed opinion as to the guilt or innocence of the accused.

In Martin v. State, 98 Miss. 676, 54 So. 148, it was held, that a juror was disqualified to sit in a murder case on the ground of holding a preconceived opinion where he stated that, although he did not know that he would hang a white man on a negro’s evidence, he would, from what he had heard, give the accused a life sentence anyway.

In a number of cases it has been held that a hypothetical opinion, or one formed upon rumor, subject to be changed by the evidence on the trial, does, not disqualify a person from serving as a juror in the case. State v. Flowers, Walk, 318, 1 Morris’ State Cases, 24; State v. Johnson, Walk. 392, 1 Morris’ State Cases, 32; King v. State, 5 How. 730, 1 Morris’ State Cases, 189; Nelms v. State, 13 Smedes & M. 500, 53 Am. Dec. 94, 1 Morris’ State Cases, 509.

In Logan v. State, 50 Miss. 269, it was held that, if a juror’s opinion is formed on rumors, and upon examination is shown not to be fixed so as to create a bias or prejudice which requires testimony to remove or overcome, such person is a competent juror. But, if the opinion has been engendered by personal knowledge, qr from bearing tbe witnesses on a former trial, sucb juror is not competent, although be may claim that it would not influence bis verdict, and that be could try tbe case fairly according to tbe evidence.

In Cotton v. State, 31 Miss. 504, 1 Morris’ State Cases, 915, it was held that a person who has formed an opinion from common rumor as to tbe guilt or innocence of tbe accused which it would require evidence to remove is not an impartial and competent juror, although tbe juror declares that be feels as free to act in tbe matter as if be bad beard nothing about tbe case.

In Ogle v. State, 33 Miss. 383, it was held that tbe impression that disqualifies must be an impression as to guilt or innocence of tbe accused, and not an impression in regard to tbe nature of the transaction on which tbe charge is based.

In Shepprie v. State, 79 Miss. 740, 31 So. 416, it was held that one who before the trial beard all tbe facts of a murder from an eyewitness whom be regarded as truthful, and whose statements be believed, and on them bad formed a fixed opinion, is incompetent to try the accused, notwithstanding tbe above section of tbe Code.

In Fugate v. State, 82 Miss. 189, 33 So. 942, it was held that a person who has an opinion about tbe case, and who cannot say positively that he can try tbe same as though he bad none, and from what be knows could bring any verdict without further evidence, or who has an opinion about tbe case which it would require strong testimony to remove, is not a competent juror.

In Gammons v. State, 85 Miss. 103, 37 So. 609, it was held that, under tbe above section of the Code, providing that a juror shall not be disqualified because be has an opinion if it appear to tbe satisfaction of tbe court that be has no bias or feeling or prejudice in the case, and. nq desire to reach any result in it except that to which tbe evidence may conduct, a juror is not incompetent who states on Ms voir dire that he had read of the case, that he has heard rumors, hut never heard any of the witnesses, that he has an opinion from what he heard which would require pvidence to remove, that, though he has such an opinion, he could give the defendant a fair trial, since the opinion is based upon what he had heard and read, and that he had.no bias or prejudice against defendant, and will try him fairly and impartially on the evidence introduced.

In Evans v. State, 87 Miss. 459, 40 So. 8, it was held under the above section that jurors are competent who have opinions based on rumor which may he removed by evidence, hut who have not talked to witnesses and have no prejudice against the accused, and state that they will give him a fair trial on the evidence notwithstanding these rumors.

In Murphy v. State, 92 Miss. 203, 45 So. 865, a prospective juror admitted on examination that he had heard and read of the case, and had a fixed opinion touching the guilt or innocence of the defendant which would take strong evidence to remove; he was held incompetent although he further stated that he was not interested, and if accepted, would he governed by the law and the evidence as presented.

There are many other cases that could he cited and commented on, and a study of which would show that it is an extremely difficult matter to determine the competency of a juror who has formed or expressed an opinion, hut who thinks that he can discard the opinion and be governed by the^law and the evidence. A study of these decisions will show that the law has varied somewhat according to the personal opinions and habits of thought of the particular judges who constituted the court. It is even moré noticeable, in studying the records that come to this court from the different circuits, the view of the different judges as to what makes a competent juror varies considerably. It is, of course, a judicial question as to whether a jury is fair and impartial, and the trial judge must necessarily first determine this question, and his judgment will not be disturbed, unless it appears clearly that he is wrong. It is therefore important to a defendant whose life, liberty, and honor are involved in the trial of a criminal ease that he have full latitude in searching the juror’s mind and conscience to determine his exact attitude, both as affecting his legal competency as a juror as an aid in exercising the right of challenges for cause, and also as enabling the defendant or the state to act intelligently in exercising the rights of peremptory challenges. In times of excitement, and sometimes following movements inaugurated to induce people to respond to jury service, and sometimes through improper desire to get on a jury, it is necessary to have a searching examination in which the questions may be propounded rapidly. Every experienced trial lawyer appreciates the fact that at times a defendant is confronted with a serious situation in preventing improper jurors from being impaneled, and the state is likewise seriously 'confronted sometimes in preventing a jury being made up of designing persons. It is therefore difficult to ever say that the denial of the statutory right secured by the recent act is harmless. The general rule is that the denial of a statutory right will be presumed to be prejudicial. It is difficult to see what results might have flowed from allowing the statutory right, and what results might flow from its refusal.

In Gibson v. State, 70 Miss. 554, 12 So. 582, the denial of the statutory right secured by section 1496 of the Code of 1906 (section 1254, Hemingway’s Code), being then section 1423, Code of 1892, the cause was reversed for the refusal or denial of the right to the defendant. Apparently the court did not stop to consider or weigh whether or not such error was harmful or harmless.

We think the safe rule is to hold that the denial of the statutory right is error for which the judgment will he reversed. See, also, Funches v. State, 125 Miss. 140, 87 So. 487.

The next question for consideration is whether it was error to admit the confession taken down in. writing by the county attorney as stated above. The trial court excluded the confessions in the hotel and in the jail at New Albany, but admitted the confession made in the presence of and taken down by the county attorney. The attorney-general in his brief confesses that it is hard to distinguish this case from White v. State, 129 Miss. 182, 91 So. 903, 24 A. L. R. 699, and practically concedes that, if the excluded confessions were properly excluded, that the one admitted ought also to have been excluded, but he argues that the trial judge wrongfully excluded the other two. We are unable to agree'with the attorney-general that the trial judge was in error in excluding the two. It clearly appears that hope was held out to the defendant that it would be better for him if he made the confession, and it also clearly appears that the defendant was in great fear of mob violence when he made these confessions. We think the confession made to and taken down by the county attorney should have been excluded, under the authority of White v. State, supra, and also Banks v. State, 93 Miss. 700, 47 So. 437, and Durham v. State (Miss.), 47 So. 545.

In the case of Banks v. State, supra, the court said: “It does not sufficiently appear that the appellant was not acting under the influence of the inducements held out to him. the day before to warrant us in concluding that the testimony offered to prove the second confession should have been admitted. In order to make this alleged second confession admissible, it must clearly appear that the second confession was not made under the same improper influence as the first.”

Ill tlie case beforfe us the confession made and taken down by the county attorney followed within less than an hour the confession to the sheriff and detectives, and, while the county attorney, with commendable fairness, sought to inform the accused that it was not necessary for him to repeat his confession unless he was willing to do so, and that it would be used against him, and that he had no inducements to offer, still we think this does not make it admissible. In the numerous cases that come here involving confessions we frequently find confessions unlawfully obtained speedily followed up by a prosecuting officer or a justice of the peace by another one sought to be made competent by stating to the accused that he is under no obligation to make it, and it will be used against him, or that there is no obligation expressed or implied to aid him in any respect. When a confession1 is unlawfully obtained the influence which procures it it to be so unlawfully obtained ought to be fully removed in order to make the second one admissible.

We deem it unnecessary to consider the other assignments of error, as they may not appear in the next trial.

For the errors named, the judgment will be reversed, and the cause remanded for a new trial.

Reversed and remanded.