11 Adv. S. 16 | Miss. | 1952
Robert Phenix, the appellant, and Roy Walker Mabe were jointly indicted for grand larceny in the stealing of $570, the property of Joe Fergnson. Mabe was acquitted; Phenix was found guilty, was sentenced to two years and two days in the state penitentiary, and he appeals.
He urges here four errors he says were committed by the lower court. First, that he was entitled to a directed verdict; second, if not, that the verdict was against the great weight of the evidence; third, that a fatal variance existed between the allegations of the indictment and the proof as to the ownership of the money; and, fourth, that defendant, who had no attorney at the trial, was entitled to have one appointed by the court to defend him.
We will deal with these contentions in the order stated. The first two will be considered together. The principal ground of the first of the two is that the proof fails to show that appellant was the person who stole the money. The testimony as to that will be set out along with the other evidence applicable to the second contention.
Joe Ferguson, the prosecuting witness, testified that in December, 1951, he was a resident of Marion, ill.; that he had a wife and eight children; that he was the driver of a truck and engaged in buying lumber in several states, including Mississippi, and transporting it to and selling it in other states; that he first met Phenix and Mabe on Saturday, December 15, 1951, in Hazlehurst, Mississippi ; that he saw them again at a night club in that city the next night, which was Sunday; that he and Mabe left that club and went to another; in about two hours they
Junior Hall testified that he lived at Brookhaven. He drives a taxicab. He knows ■ Phenix; that he first met Phenix and Mabe at the Boyal Cafe in Brookhaven about 2:20 on Monday morning, December 17, 1951. He heard them ask a soldier' if they could ride with him in his automobile to Natchez. The soldier said he would have to get some gas. They offered the soldier five dollars with which to buy gas, which the soldier refused. Witness drove to the bus station to meet an incoming bus and while he was there he saw this soldier drive by going towards Natchez. Witness drove back to the Boyal Cafe and Phenix and Mabe were standing on the sidewalk apparently waiting for the soldier to return. He told them he had seen the soldier drive away towards Natchez. They asked him if he would drive them to Jackson. He did that. The charge for that was $16. They paid him, getting a twenty dollar bill changed for that purpose. He carried them to the Greyhound Bus Station in Jackson. They told Hall they had driven to Brookhaven in a Chevrolet pickup truck. They had left this parked on the street in front of the Boyal Cafe. They asked the witness to move this vehicle from the street. He agreed to, and did, do that, parking it near the Pure Oil Service Station. This he did about 7:30 to 8:00 o’clock Monday morning. He said he had never seen Mabe and appellant before; that they told him they were going towards Mobile or Pascagoula from Jackson. They were drinking.
Julius Harper, Sheriff of Copiah County, Mississippi, testified that Ferguson called him over the telephone at
Bryan Mohon, a deputy sheriff of Copiah County, went with the sheriff and Ferguson to Montgomery. He did not remember the amount of money taken from the person of Phenix and Mabe. The part of his testimony having weight on the issues raised is his assertion that he heard the statements of Mabe and Phenix made on the way back from Montgomery and neither ever denied that the money they had on their persons when arrested was the money gotten from Ferguson. The witness was asked “Did the defendant’s ever deny this being Ferguson’s money? A. No, sir, they never did deny it. Q. Never did deny it? A. No, sir.”
Ferguson was here recalled to the stand and gave this testimony: “Q. Mr. Ferguson, you were on the stand just before noon? A. Yes, sir. Q. There was some question raised here about whose money that was. "Whose money was it? A. My money. Q. Whose loss was it, if it was missing? A. It was my loss.” Here the State rested. Defendants introduced Jeff Vinzant. He testified that he was in the Hazel Hotel on the night of Sunday, December 16, occupying a room near that occupied by Ferguson. He heard some talk about betting by persons in Ferguson’s room. “. . . they were talking about betting and they said ‘bet $60 — $50’ and then said cover the whole hundred. ’ ’ He said he did not know who was in the room or who was talking and he was not certain as to the number of the room, although he thought it was No. 5. On cross-examination he admitted he had
Appellant then took the stand. He said he and Mabe first became acquainted with Ferguson on the night of December 16 at Jigg’s Place. He said “we was” there rolling high dice for small amounts, but did not say whether that included Ferguson. He and Mabe and Ferguson went from Jigg’s Place to another night club. Mabe and Ferguson played poker and shot craps. He and Mabe and Ferguson then went to the Hazel Hotel. The witness and Ferguson engaged in a poker game in Ferguson’s room. Mabe went to the room occupied by the witness and Mabe and retired. After the witness and Ferguson finished their game witness went to his room, awakened Mabe and they drove from Hazlehurst to Brookhaven. He said “Everything was closed in Hazlehurst” and they went to Brookhaven to get some whiskey. He admitted meeting Hall, the taxi driver, and engaging him to drive them to Jackson, paying Hall $16 for that service. He said he and Mabe were going home. They were arrested in Montgomery. He denied either of them had purchased any new clothing.
On cross-examination he said he was twenty-five years of age. He admitted he had registered at the Hazel Hotel under the name of Raymond Stone. He said he did that “Because I am an escaped prisoner out of North Carolina for abandonment. ’ ’ Said he had on his person, when he began the rounds, approximately $200, and he did not know how much he won.
That was the testimony for defendant. Mabe did not testify.
In rebuttal the State introduced Mrs. Herman Tillman. She was operating the Hazel Hotel on December 15 and 16, 1951. She testified from the hotel register and said that Vinzant did not stay at that hotel on either of the two named days or nights. She heard no disturbance or
From this it will be seen that about the only material issue in dispute is whether Phenix came into the possession of the money of Ferguson by gambling or took ■it without the consent of Ferguson when he was asleep.
The admission of Phenix that,the money found upon him in Montgomery was formerly money in the possession of Ferguson, coupled with the similarity of the denominations of the bills, was certainly sufficient to justify the conclusion on the part of the jury that this was the identical money in the possession of Ferguson Monday morning when he and Phenix came to the hotel. Phenix said he won the money from Ferguson. Ferguson said he did not gamble with Phenix. Whether Phenix won the money or took it from the person of Ferguson was a question for the jury. It is understandable that the precipitate flight of Phenix from the scene at so early an hour in the morning, his hurried departure from this State, all in the manner and under the circumstances set out, and the fact that he Avas an escaped convict, likely weighed heavily against him in the opinion of the jurors.
The trial judge did not commit error in his refusal to grant defendant a peremptory instruction, nor was the verdict of the jury against the great weight of the evidence.
As to the third question, the indictment charged that the stolen money was the property of Joe Ferguson. Appellant says the proof shows it was not his money and that, therefore, there is a fatal variance between the indictment and the evidence.
It was necessary for the State to prove ownership of the money as alleged in the indictment. Robinson v. State, 180 Miss. 774, 178 So. 588; Minneweather v. State, (Miss.) 55 So. 2d 160. However, we think that was
Lastly, it is contended that appellant was denied due process of law in that the trial judge did not appoint an attorney to defend him, which, it is urged, he was required to do by Art. 3, Section 14 of the Constitution of Mississippi, and by Amendments VI and XIV to the Constitution of the United States. The record reflects these facts as relevant to that question.
Appellant had no counsel to defend him. He did not request the trial judge to appoint one. There was present a Preacher Bryant, presumably a friend, or a sympathizer, who consulted and conferred with the defendant. When the case was called for trial the judge asked Phenix if he had counsel and he replied “No, sir.” The judge then inquired “Preacher Bryant, I understand you are representing the defendants.” “By Rev. Bryant : I am going to counsel with them, sir. By the court: I am going to permit it with the understanding you are to receive no fee. You can’t do that.” From this we infer that Preacher Bryant was not an attorney at law.
Phenix was twenty-five years of age. Apparently he was a man of much worldly, and considerable court, experience. He cross-examined the State’s witnesses. In this he demonstrated considerable ability as to what was important in his defense. For instance, he pressed Ferguson hard to explain his unusual act of going to
Tbe trial judge' was unusually solicitous about tbe rights of appellant. As stated, he permitted Reverend Bryant to counsel with and assist Phenix. At each stage he informed the defendant what his rights were. He explained that defendant could put questions to the prospective jurors and the witnesses. He warned the district attorney to be unusually cautious. When the State rested its case he, of his own initiative, went with the defendant and Mabe and Reverend Bryant and the district attorney into chambers and there informed defendant and Bryant that a motion for a directed verdict for defendants was frequently made at this stage of the trial. Reverend Bryant made that motion, which the court overruled. When appellant took the stand he informed appellant “. . . you may testify to the jury anything you wish to say with reference to your innocence in regard to what occurred on the night of December 16 or morning of the 17, 1951.” Phenix then gave his entire statement without interruption. Some of it was subject to objection if objection had been made. The cross-examination of the district attorney consists of a little over two pages of the record. It is stated in the brief of able counsel for appellant in this Court that the trial judge prepared the instructions to the jury for the defendants. There are five of these and they clearly set forth the burdens upon the State, the rights of defendant and what the jurors had to believe and find before they could return a verdict against defendant.
After conviction, the defendant, having then obtained counsel, requested the trial judge to set aside the verdict and grant him a new trial, setting up, among others, the ground that no counsel was appointed to defend him. He made affidavit that he was a stranger in this State; that he had been in jail since his arrest, without opportunity to engage an attorney, or to prepare his defense, and that he had no money with which to employ such
Odom v. State, 205 Miss. 592, 37 So. 2d 300, decided November 8, 1948, settled the question that, to that date, neither the constitution, statutes or decisions of this State, nor those of the United States, required or authorized a trial judge in this State to appoint an attorney to defend an accused in non-capital cases under the circumstances of this case. In that case the record was silent as to whether Odom had requested the trial judge to proffer to him the services of counsel. Nor was it shown he was financially unable to employ counsel. His testimony and his examination of the other witnesses, as is time in the case at bar, “clearly indicated his appreciation of what (was) needed to be developed” for his own defense. The only material difference between the Odom case and this case is that Odom was being tried in his home town, whereas Phenix was tried where apparently he was unknown. However, it is not claimed that prejudice existed against him. Indeed, the existence of prejudice is negatived by the acquittal of Mabe, indicted as a participant in the same crime. Good ground for the distinction may be seen in the testimony of Ferguson that Mabe never came into his room at the hotel and in the testimony of Phenix that Mabe, upon their return to the hotel, went to their room.
The opinion in the Odom case, clearly and concisely, analyzed the prior decisions of this Court and the most pertinent decisions of the Supreme Court of the United States, and as stated, concluded that neither the State nor the Federal law required the trial judge to appoint a defender of the accused. That case was appealed to the Supreme Court of the United States, (Odom v. Mississippi, 93 L. Ed. 1092) and on March 28, 1949, that
There appear to be four cases decided by the Supreme Court of the United States since the Odom case which bear upon the question under consideration. We will deal with them in the order of time decided.
The decision in Quicksall v. People of Michigan, 339 U. S. 660, 94 L. Ed. 1188, was handed down June 5, 1950. That drama consisted of two acts. The first was the trial of the case on the merits on July 16, 1937, and the second was a proceeding on a motion to set aside the judgment filed April 18,1947. On the trial on the merits Quicksall pleaded guilty to the murder of Mrs. Grace Parker, his paramour. He had no counsel. He made no request that one be appointed and an appointed counsel was not proffered him. He was 44 years of age and he shot and killed Mrs. Parker and attempted to take his own life in accordance with a prior understanding between them that if their illicit relations should become known they would both “die together”. Quicksall had been married and divorced twice and had served two terms in state penitentiaries. He shot Mrs. Parker on July 2, 1937, and was a hospital patient, under police guard, from that date to July 15, when he was brought before the court and waived examination.. He entered his plea of guilty the next day. The trial judge had propounded questions to him, and he had made answers thereto, both in open court and at chambers. This examination into the facts was mainly to determine the degree of murder the court should impose upon him under his plea of guilty. The Court found that to be murder in the first degree and sentenced Quicksall to life imprisonment in the state penitentiary, capital punishment having been abolished in Michigan. Quicksall went to the penitentiary.
Gallegos v. State of Nebraska, Law Edition Advance Opinions, Vol. 96 — No. 3, pg. 82, was decided November 26, 1951. Gallegos killed his paramour in the State of Nebraska. He was arrested in Texas. He was a thirty-eight-year-old Mexican farmhand, who could neither speak nor write English. While being detained by the officers in Texas, and before any charge or arraignment, he confessed to his crime. A few days after being transported to Nebraska he repeated his confession. Fifteen days later he was carried before a magistrate before whom he pleaded guilty. A short time thereafter counsel was appointed for him. On the trial both the Texas and Nebraska confessions were introduced in evidence against him. He contended the confessions were incompetent, one reason therefor being that he had no counsel when they were made. He was convicted of manslaughter and the conviction was sustained by the Supreme Court of Nebraska and also by the Supreme Court of the United States. The part of the opinion applicable here is this statement: “The Federal Constitution does not command a state to furnish defendants counsel as a matter of course, as is required by the Sixth Amendment in federal prosecutions. Lack of counsel at state non-capital trials denies federal constitutional protection only when the absence results in a denial to accused of the essentials of justice.”
Palmer v. Ashe, Warden, Law Edition Advance Opinions, Vol. 96 — No. 4, pg. 130, was decided December 11, 1951. This was a habeas corpus proceeding instituted by Palmer against the penitentiary warden while he,
In Stroble v. California, Law Edition Advance Opinions, Vol. 96 — No. 12, pg. 529, decided April 7, 1952, Stroble was convicted of murder and sentenced to death. He was represented by counsel at the trial on the merits. After conviction he requested a sanity hearing. He waived a jury hearing on that issue. He was advised to do that by the Public Defender, although prior to that time two deputy public defenders had handled the case in court. It was shown the Public Defender had read the transcript of-the record of the trial. The Supreme Court could find no merit in that contention.
Again, while the prosecuting attorney was interrogating the accused after his arrest and before the trial,
None of these cases required the trial judge to appoint counsel to defend appellant under the facts and circumstances of this case.
In the Odom case, supra, we said: “Then, too, since we are an intermediate court on the federal constitutional question here involved, we have concluded to affirm the conviction had in the trial court, for the reason that in our opinion there is no constitutional provision that would either require or warrant us in doing otherwise. And, also because, ordinarily, if we should reverse and remand such a case there would be no further steps that could be taken by the trial court, since he is without authority to require an attorney to defend free of charge one charged with a non-capital felony, and there is no provision of law for the payment of a fee by the state or county in that behalf. It is not for us to finally say that all prosecutions in non-capital felony cases must be suspended until the legislature provides for a public defender in each case or authorizes the expenditure of public funds for the employment of private counsel. In other words, if the ‘underlying control over their local police powers and state court procedures’, which the opinion in the Bute case, supra, says was retained by the states from the beginning, is to now be taken from the State contrary to the Tenth Amendment to the Constitution of the United States, we prefer that the responsibility for doing so shall not rest upon us,”
Affirmed.