Herman SMITH v. STATE of Mississippi
No. 45554
Supreme Court of Mississippi
December 8, 1969
Rehearing Denied January 12, 1970
229 So. 2d 551
A.F. Summer, Atty. Gen., by Guy N. Rogers, Asst. Atty. Gen., and Velia Ann Mayer, Sp. Asst. Atty. Gen., Jackson, for appellee.
This is a case where a young single girl was raped by two young negro men. The defendant was indicted, tried and convicted of the rape and sentenced to serve a term of life in the state penitentiary. These are the facts leading up to the sentence given the appellant in the Circuit Court of Marion County, Mississippi.
The victim was twenty (20) years of age at the time of the alleged rape. She was a student at the University of Southern Mississippi School of Nursing. She lived with her widowed mother. Her father had died about three (3) years before the assault. She went home about 1:30 the morning of August 1, 1968. She undressed and went to bed, but was disturbed by a “scraping noise” and arose to investigate. She turned on the light in her bedroom, and was confronted by two negro men. The largest negro “grabbed her” and threw her on the bed. She begged her assailants to
Later, Herman Smith came to the place where the officers were investigating the crime. He was advised that he was not required to submit to interrogation and that he was entitled to have an attorney if he so desired. The undenied testimony of the officer shows that the defendant, after a short time, confessed that he committed the crime.
Thereafter, on August 14, eight (8) young negro men were grouped together in the Hinds County jail, and Miss Smith was permitted to see them to determine whether or not she could identify any of them as her assailant. Before this occurrence the appellant was advised that he could have a lawyer present at the “lineup” if he so desired, but he declined. “He said he didn‘t guess he needed one.” Miss Smith identified the appellant, Herman Smith, as one of her attackers. A picture of the young negroes was made a part of the record. The picture shows appellant to be a fully grown man; however, there is testimony that the appellant was “nineteen or eighteen, somewhere along there” at the time of the trial.
The record is not clear as to what occurred after the officer had warned the defendant because of continued interruptions made during the interrogation in the absence of the jury. It finally appears, however, that Smith first made an oral statement to the investigating officer after he had been warned of his rights. He was then charged with burglary. The prisoner was taken to the highway patrol headquarters where he signed a written waiver and a written confession admitting his participation in the crime.
His fingerprints were taken by the fingerprint expert of the highway patrol. An examination of these prints revealed that the left middle and left ring finger of the prints taken from Herman Smith matched the latent fingerprints taken from the south door of the victim‘s home.
The defendant offered no testimony during the absence of the jury to contradict the officer with respect to the warning, waiver and confession.
The appellant has assigned eleven grounds for which it is contended the conviction and sentence of appellant should be reversed. These alleged errors, in their final analysis, may be grouped into the following headings: First, it is said, the indictment and trial of the appellant should be vacated because negroes and women were systematically excluded from the grand and petit juries in Marion County, Mississippi. Second, it is contended that
I.
A hearing was held upon the defendant‘s motion to quash the indictment upon the ground that negroes were systematically excluded from service on the grand and petit juries. During the hearing on this issue, it was agreed that the record in another case previously heard in June, 1968, where this same issue was raised as to the systematic exclusion of negroes from jury service, and it was agreed that this testimony would be evidence on the issue in the instant case. The record in that case contains the testimony of the circuit clerk, the chancery clerk, five (5) supervisors and the deputy sheriff, all officers of Marion County. Two attorneys were also called as witnesses. A careful, unbiased reading of this testimony leaves no doubt that the jurors of Marion County are now being summoned without regard to their race. The appellant argues, however, that there are not enough negroes being summoned for jury service in proportion to the number of negroes living in the county.
The thesis of this argument is based upon the population and not upon the number of negroes qualified for jury duty. This, of course, is not the proper criteria, because jurors are not summoned from the population at large — they are summoned from qualified electors and freeholders above twenty-one (21) years of age living within the county. Moreover, idiots, insane persons (
We pointed out in Black v. State, 187 So. 2d 815 (Miss. 1966), that since negroes would not register nor qualify as electors for many years and were thus not qualified as jurors, it became necessary for the people of this State to change the Constitution of the State by their vote so as to give the legislature authority to fix the qualification of jurors. Thereafter, the legislature amended
The record shows in the instant case that several “drives,” campaigns, had been made by interested persons to get negroes to qualify as electors. There has been a considerable increase of qualified negro voters who are now subject to jury duty. The record also shows that there has been an increase from a very small beginning of negroes summoned for jury duty in 1963 to 37.9 per cent of all persons summoned for jury duty at the June term
We hold, therefore, that the record in this case does not show a systematic exclusion of negroes from jury service and that the State has met the burden of proof necessary to show that there is no systematic exclusion of negroes from the juries in Marion County.
II.
The argument that the failure to include women as qualified jurors violated appellant‘s rights under the
We held in State v. Hall, 187 So. 2d 861 (Miss. 1966), that the power to prescribe the qualifications of jurors is in the legislature and that the legislature had the power to exclude women from jury duty. Since that time the legislature has made women subject to jury duty in this state.
III.
It is argued that the appellant was unlawfully arrested and that the confession, fingerprints, and testimony of the lineup identity of the defendant were obtained by the police from him by reason of his unlawful arrest, unlawful interrogation and without his constitutional right to have an attorney present.
The undenied testimony shows that a highway patrol investigating officer, who was making an effort to locate the negroes who committed the rape of Miss Smith, learned the name of the defendant Herman Smith. The officer suggested to the deputy sheriff that he contact Herman Smith to find out whether or not he would come to the courthouse to talk with the highway patrol investigator. Later, the defendant came in with the deputy sheriff. The investigator did not talk to Smith, however, until he advised him of his right not to talk to him and advised him that he had a right to have a lawyer present if he did talk to the officer.
It is, of course, not necessary for an officer to warn every person he talks to about a crime of his constitutional rights; nor is it necessary that a person being interrogated sign a waiver waiving the presence of an attorney, until such time when the investigation, or information known to the officer is such as to indicate that the person being interrogated may be charged with the crime. When it becomes apparent to the investigating officer, or should be apparent from the circumstances, that the person being interrogated is likely to be charged with a crime, the officer must promptly warn him of his rights so that such person will not be required to give information that may incriminate him. Nevertheless, if a person, being warned, voluntarily makes statements against his interest, such statements may be introduced in evidence. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964); State v. Meunier, 126 Vt. 176, 224 A.2d 922 (1966).
After having interrogated the defendant for about thirty (30) or forty (40) minutes, Smith confessed to having committed a crime. The officer testified that the confession was freely made, without threat or promise of reward. The officer
The defendant was taken to the Highway Patrol headquarters where he signed a waiver and also signed a written confession. The defendant did not testify in the absence of the jury during the trial. There was no testimony offered to show that he had not voluntarily signed the waiver, nor did he deny his confession nor offer evidence to indicate that it was not voluntarily made.
An arrest within the meaning of the criminal law is the taking into custody of another person by an officer or a private person for the purpose of holding him to answer an alleged or suspected crime. 6 C.J.S. Arrest § 1, page 570 (1937). One who voluntarily accompanies an officer to a place where he may be interviewed is not under an arrest. Miranda v. Arizona, supra. Fondren v. State, 253 Miss. 241, 175 So. 2d 628 (1965).
The pertinent parts of
“An officer or private person may arrest any person without warrant, for an indictable offense committed, or a breach of the peace threatened or attempted in his presence; or when a person has committed a felony, though not in his presence; or when a felony has been committed, and he has reasonable ground to suspect and believe the person proposed to be arrested to have committed it; or on a charge, made upon reasonable cause, of the commission of a felony by the party proposed to be arrested. * * *”
It is apparent, therefore, that the officer had sufficient grounds upon which to arrest the defendant after he had confessed to an indictable offense.
The defendant based his objection to the introduction into evidence of the confession, the testimony with reference to the taking of defendant‘s fingerprints, and the testimony with reference to the identification of defendant, upon the ground that this evidence was obtained from the defendant at a time when he was being unlawfully held in custody and was refused the aid of an attorney.
We do not agree with this contention because we are satisfied that the record reveals a lawful arrest after his statement to the investigating officer. The officer also had a right to take the picture and fingerprints of the defendant after his arrest.
In the case of United States, Petitioner v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), the Supreme Court pointed out that to require a prisoner to exhibit himself for the purpose of identification did not violate the prisoner‘s constitutional rights against self-incrimination.
IV.
The appellant argues that the juvenile laws, particularly
The testimony as to the age of the appellant is to the effect that he was “nineteen or eighteen” at the time of the trial. The Youth Court has no jurisdiction over any young person eighteen (18) years of age for any cause (
Moreover, the argument in this case that the appellant is a child is fallacious. It appears from the record that he is a large, young negro man, grown in all respects except age. According to this record, he has committed a crime for which he could have been sentenced to suffer the death penalty. We hold that the juvenile laws of the State of Mississippi are not applicable.
The attorneys for the appellant contend that they should have been furnished a psychiatrist by the court to aid them in the trial of the charge against the defendant. We agree that the court could have appointed a psychiatrist to examine the defendant in this criminal trial (
A careful examination of the record in this case reveals no reversible error, and for that reason the judgment of the trial court should be, and is hereby affirmed.
Affirmed.
GILLESPIE, P.J., and JONES, BRADY and INZER, JJ., concur.