McLelland v. StateMcLelland v. State
The appellant was indicted and convicted in the Circuit Court of Lauderdale County, Mississippi, for the forgery of a check. From his conviction and sentence of five years in the state penitentiary he prosecutes this appeal.
On January 19, 1966, Sybil Alexander and Charlie Barr were visiting in appellant‘s home. One of them, out of appellant‘s presence, wrote out a check for $48.96, signing the name D.W. Carr as maker. Under the signature were the written words “Red Hot Truck Stop,” and in the left corner appeared the words and numerals “40 hrs. work.” Appellant‘s twelve year old nephew testified that only he, Sybil Alexander and Charlie Barr were in the room at the time the check was made out and that appellant, upon entering the room was given the check to get it cashed. Charlie Barr, now deceased, and appellant proceeded to a grocery store operated by Joe Burnett to cash the check. Mr. Burnett testified that on January 19 he and Donald Richardson, his employee, were both operating check-out stands in the store when appellant and Charlie Barr presented the check to Richardson in payment for the items which they had selected. Richardson passed the check to Burnett who then called the bank to determine if D.W. Carr had sufficient funds on deposit to cover the check. Assured that he did, Burnett passed the check back to Richardson who in turn passed it to appellant for his endorsement. Appellant claims that he passed the check and pen to Charlie Barr but did not actually see him endorse it. Burnett and Richardson, however, testified that appellant endorsed the check with the name “James Easley,” which Richardson did not question because he was familiar with appellant‘s face but not his name. Richardson also stated that appellant received the cash balance remaining after the purchase price of the groceries was deducted. Appellant denies that he received any money and asserts that Charlie Barr was the recipient. Mr. Richardson testified, as did Joe Burnett, that no one other than appellant wrote anything on the check in his presence.
Mr. D.W. Carr, proprietor of the Red Hot Truck Stop, testified that he had known appellant for approximately seven years but that appellant had never worked for him and that he never had occasion to give
Appellant asserts that the twenty-eight day delay in carrying him before a magistrate deprived him of his constitutional right to a prompt preliminary hearing with the assistance of counsel and, apparently, that he also was deprived of his right to a speedy and public trial guaranteed by
The nature and purpose of the preliminary hearing in Florida are similar to those of Mississippi. In Barton v. State, 193 So.2d 618 (Fla.Ct.App. 1966), the Florida Court of Appeals said: “Such proceedings partake of the nature of an inquiry and serve only to determine whether or not probable cause exists to hold a person for trial.” Id. at 624. This appears to be the general rule with respect to the functions and significance of preliminary hearings in the various jurisdictions. See, e.g., State v. Vogel, 212 A.2d 560 (N.J. 1965); Phelps v. State, 404 P.2d 687 (Okl.Cr.App. 1965); Commonwealth v. Russell, 416 Pa. 546, 207 A.2d 792, 793 (Pa. 1965); and State v. Jackson, 66 Wash.2d 24, 400 P.2d 774, 778 (1965).
We hold, therefore, that the delay in taking the appellant before a magistrate for a preliminary hearing did not deprive him of his right to a speedy trial under
In McKenzie v. State, supra, the circuit court appointed all nine members of the Newton County Bar to defend McKenzie on a charge of murder. He was being held in the Hinds County jail and none of the nine attorneys appointed to represent him was willing to travel to Hinds County to confer with McKenzie. McKenzie was brought to the Newton County courthouse for his trial and was allowed only a brief consultation with his attorneys prior to the time trial actually began. We held in McKenzie that even though he had nine attorneys representing him, the refusal of any of them to travel to Jackson for consultation and the brief period of time which he had with his attorneys prior to the trial amounted, in effect, to a lack of counsel and therefore a denial of due process. We find nothing similar in the case at bar. Counsel representing appellant had five days in which to interview witnesses, file pleas and prepare himself for the trial of this case. The record discloses that all of this was done and the appellant was most ably represented. The record further discloses that appellant‘s attorney made no motion for additional time nor did he indicate a lack of time to accurately prepare a defense. We hold therefore that there is no merit in this assignment of error.
Appellant next asserts that the grand jury was illegally and unconstitutionally drawn. The facts and issues upon which this assignment of error is founded are identical to those in Davis v. State, 204 So.2d 270 (Miss. Nov. 6, 1967); Boyd v. State, 204 So.2d 165 (Miss. Nov. 6, 1967); and Northcutt v. State, 203 So.2d 795 (Miss. Oct. 30, 1967). The same testimony has been embodied in the transcripts of each of these cases. Based upon the authorities cited in Boyd v. State, supra, and for the reasons therein stated, we hold that there was no systematic exclusion of Negroes from the grand jury and that appellant‘s constitutional rights were not infringed either by the exclusion of women from the grand jury or by the manner and procedure in which the grand jurors were drawn. Contrary to appellant‘s assertions, a fair cross-section of the county was obtained by the method utilized by the board of supervisors and the rule announced in Rabinowitz v. United States, 366 F.2d 34 (5th Cir.1966) does not apply here. It
Appellant next asserts that by trying him at the November term of court the State placed him in double jeopardy. In his brief the appellant states that he was sentenced to serve thirty days in jail at hard labor and that thereafter he was indicted by the grand jury for the crime of forgery at the November term, the indictment being for the same act for which he had served thirty days. Appellant‘s attorney raised the question of double jeopardy several times during the trial of the case and was overruled each time. The claim of former jeopardy is predicated upon the fact that appellant voluntarily furnished labor to the county by painting the county jail. He was under no obligation to paint the jail and the record fails to show that he was compelled to do so. To the contrary, it discloses that appellant could not make the $1,000 bond or any bond fixed by the court at the May 1966 term. His first attorney, Mr. Dennis Goldman, testified that the agreement with the district attorney was that they would wait at least thirty days more and if he still could not put up a bond appellant would be released on his own recognizance, thirty days being estimated as the time it would take for him to finish his voluntary painting of the jail. Mr. Goldman further stated that he, the sheriff and the jailer reached the conclusion that appellant should go ahead and finish painting, if he wanted to; that appellant indicated that he so desired; and that mercy and leniency would be shown him in return therefor. Appellant continued to paint the jail and after twenty-five days was released by the jailer “Buck” Lewis on his own recognizance to appear at the November 1966 term.
The appellant testified that the circuit judge was present when this agreement was reached but Mr. Goldman‘s testimony is corroborated by the statement of the trial judge who admitted that he remembered talking to the sheriff, remembered the prisoner standing where he was, and remembered that he was not able to make bond on the charge for which he was being held. The court stated for the record that appellant said he wanted to stay in jail and finish the work which he was doing for the sheriff. Request was made to the court that if he could not make bond but finished the work he was doing that he would be released on his own recognizance to meet the grand jury, which request the court granted. Except for the statement of the appellant there is nothing in the minutes of the trial to contradict the testimony of Mr. Goldman and the trial judge.
Appellant asserts that the agreement between the district attorney and his attorney was to the effect that if he finished painting the jail and did not get into any more trouble he would not again be held accountable for the charge made against him in the indictment of May 15 which was quashed. The trial court repudiated the assertion of the appellant that he was never to be indicted or tried on account of the forgery or false uttering. The trial court asserted that the appellant was merely permitted to be released from jail upon his own recognizance in accordance with the agreement among the county attorney, the district attorney, the sheriff, appellant‘s attorney, and the appellant himself. The court vehemently denied that there was any understanding with the court that the charges against defendant for forgery would be dropped if he finished painting the jail and committed no other crime. The appellant contends that the lower court erred in not submitting to the jury the question of whether or not an agreement had been reached between the above mentioned persons and the court whereby the appellant would not be tried for the crime of forgery or false uttering if he remained in jail for thirty days, did the painting of the jail suggested, and did not become involved in another law violation. We cannot hold that the action of the officers, including the judge, constitute a conviction or acquittal
Appellant also assigns as error the giving of an instruction for the State pertaining to false uttering in that the instruction failed to set out as an essential element that the appellant must have knowingly uttered and published the check with intent to defraud. In Smith v. State, 220 Miss. 67, 70 So.2d 56 (1954) this Court held that the absence from the state‘s instruction of the necessary element of intent to defraud was cured by the inclusion of all the necessary elements of the crime in the instructions given for the defendant. This Court has held with metronomic regularity that all instructions are to be considered together as a whole and that no error can be predicated upon the failure of one instruction to set out a necessary element of the crime which is included in another instruction. McCoy v. State, 248 Miss. 73, 158 So.2d 54 (1963); State v. Goering, 200 Miss. 585, 28 So.2d 248 (1946); Bailey v. State, 174 Miss. 453, 165 So. 122 (1936).
Appellant contends that the trial court erred in refusing to grant a directed verdict for appellant, in overruling a motion to set aside the verdict of the jury, and in overruling a motion for a new trial both before and after sentence. The motions were properly overruled because the jury is the sole judge of the credibility of witnesses and the weight and worth of their testimony. This wise rule applies with equal force to the State‘s witnesses and to the defendant‘s witnesses, including the defendant himself. We have repeatedly held that the jurors may accept the testimony of some witnesses and refuse that of others, and that they may accept in part and reject in part the evidence on behalf of the State and on behalf of accused. Cobb v. State, 235 Miss. 57, 108 So.2d 719 (1959); Ivey v. State, 206 Miss. 734, 40 So.2d 609 (1949); Hill v. State, 199 Miss. 254, 24 So.2d 737 (1946). It is not for this Court to pass upon the credibility of witnesses and where the evidence justifies the verdict it must be accepted as having been found worthy of belief. Matthews v. State, 243 Miss. 568, 139 So.2d 386 (1962); Scott v. State, 185 Miss. 454, 188 So. 546 (1939).
It is obvious that this Court cannot set aside a verdict of guilty unless it is clear that the verdict is the result of bias, prejudice or fraud, or is manifestly against the weight of credible evidence. Marr v. State, 248 Miss. 281, 159 So.2d 167 (1963); Henderson v. State, 187 Miss. 166, 192 So. 495 (1939). Furthermore, all the proof need not be direct and the jury may draw any reasonable inferences from all the evidence in the case. Woodward v. State, 180 Miss. 571, 178 So. 469 (1938), overruling suggestion of error, 180 Miss. 571, 177 So. 531.
It is unquestioned that the appellant went with Charlie Barr to the grocery store of Joe Burnett for the express purpose of cashing the check which Sybil Alexander and Charlie Barr had given him. It is admitted by appellant that he told Mr. Burnett that he thought the check was good and he asked Mr. Burnett if he would cash the check for Charles Barr. The record discloses the following testimony given by the appellant on direct examination:
(A)nd he told the boy to cash it and he handed the check over there and they passed a pen back and laid it on the bar, and I just slid it over to him. * * *
It is obvious that appellant passed the check or the pen to Charlie Barr in
Affirmed.
ETHRIDGE, C.J., and RODGERS, PATTERSON and SMITH, JJ., concur.