Keeton v. State, 96 So. 179

96 So. 179 | Miss. | 1923

Smith, O. J.,

delivered the opinion of the court.

This is an appeal from a conviction for rape alleged to have been committed, in the Second judicial district of Jones county, and the assignment of error on which a decision must turn is that the court below erred in not granting the appellant a change of venue. The appellant and two others, Hollifield and Davis, Avere jointly indicted for rape, separately tried, and each convicted. The evidence of the appellant’s alleged victim, if true, is of such character as to inflame the mind and make it exceedingly difficult for the average person to try the case calmly and dispassionately.

The appellant’s defense and that of his two companions on their trials was that the woman consented. The woman reported that she had been raped shortly after she claims that it occurred, and the appellant, Hollifield, and Davis were arrested, placed in jail, and shortly thereafter a crowd assembled there with the intention of mobbing them, but were dissuaded therefrom by the county attorney and others by the promise that they would be speedily tried at a term of court Avhich would be held in a few days thereafter. The prosecutrix claims to have been raped on July 5,1922, the indictment was returned on July 18th, and the appellant was tried on August 1st; Hollifield and Davis having been in the meantime tried and convicted. v

A number of witnesses were examined on the motion for a change of venue from whose evidence it is clear that the charge against the appellant, Hollifield, and Davis was knoAvn throughout the judicial district and caused con-, siderable excitement, and that the consensus of opinion therein Avas that they are guilty and should be punished therefor. A number of witnesses did testify that in their opinion a sufficient number of unbiased jurors could be found in the district to insure the appellant a fair and impartial trial, and others that the character of the people of the district Avas such as to insure the appellant a fair trial therein. The sheriff probably made an accurate estimate of the situation by stating that:

“I think we can get twelve men that Avill give them a fair trial, but it will take a lot of trying.”

Each of the tifiáis Avas attended by an excited crown which packed the courthouse to its capacity and at the Hollifield trial evidenced its interest therein by its conduct. What the conduct of the crowd at the appellant’s trial Avas, does not appear.

Section 1484, Code of 1906 (section 1242, Hemingway’s Code), provides:

When “by reason of prejudgment of the case, or grudge or ill Avill to the defendant in the public mind, he cannot have a fair and impartial trial in the county where the offense is charged to have been committed, the circuit court, or the judge thereof in vacation, may change the venue in any criminal case to a convenient county, upon such terms, as to the costs in the case, as may be proper.”

Under this section it is not necessary, in order for a defendant to be entitled to a change of venue, that it shall appear that every otherwise qualified juror in the county where the offense is charged to have been committed has prejudged the defendant’s case or bears a grudge or ill will against him, and the defendant should not be denied a change of venue, although it may appear that twelve unbiased men may be found in the county to try him. The statute contemplates that the jury shall not only be composed of unbiased and impartial men, but of men who have not been and will not during the trial be subject to the influence of a popular demand for the defendant’s conviction. If such a demand is widespread before the trial and is evidenced by the conduct of a large crowd at the trial, it can be safely assumed that the jury will not be uninfluenced thereby. Tennison v. State, 79 Miss. 708, 31 So. 421; Brown v. State, 83 Miss. 645, 36 So. 73; Magness v. State, 103 Miss. 30, 60 So. 8; Eddins v. State, 110 Miss. 780, 70 So. 898.

“The defendant is entitled to be tried in a county where a fair proportion of the people qualified for jury service may be used as a venire from which a jury may be secured to try his case fairly and impartially, and uninfluenced by a preponderant sentiment that he should be convicted. Magness v. State, supra.

Consequently testimony warranting a change of venue in a criminal case is not overcome by a showing that twelve impartial jurors could be found in the county by picking them, or by testimony predicated wholly of the general good character of the people of the county.

This is not a case where the defendant’s guilt is beyond doubt, for there is ample evidence to support a verdict to the contrary, but he had very little chance for an unbiased and impartial consideration thereof by a jury fresh from contact with, and surrounded at the trial by, an angry and excited people-clamoring for his life or liberty. Moreover, the guilt or innocence of the defendant is not a question here for consideration, for:

“It is one of the crowning glories of our law that, no matter how guilty one may be, no matter how atrocious his crime, nor how certain his doom, when brought to trial anywhere, he shall nevertheless have the same fair and impartial trial accorded to the most innocent defendant. Those safeguards, crystallized into the Constitution and laws of the land as the result of the wisdom of centuries of experience, must be by the courts sacredly upheld, as well in case of the guiltiest as of the most innocent defendant answering at the bar of his country. And it ought to be a reflection, always potent in the public mind, that, where the crime is atrocious, condemnation is sure, and when all these safeguards are accorded the defendant, and therefore, the more atrocious the crime, the less need is there for any infringement of these safeguards.” Tennison v. State, supra.

Reversed cmd remanded.