Toney v. StateToney v. State
Appellant James Toney was indicted, tried and convicted in the Circuit Court of Pearl River County of the crime of assault and battery with intent to kill and murder Cleveland McQueen. He was sentenced to serve a term of three years in the State Penitentiary. From this conviction and sentence he appeals. We reverse and remand.
On Friday night September 29, 1972, at about 10:30 p.m. appellant, who was a Vietnam veteran, George Perkins, Marie Williams, Mack Taylor and Georgia Mae Terrell, all of the black race, decided to go to the Twilight Inn located just north of Picayune to get something to eat. This is the only eating place in Picayune that is open at night. It appears from the record that the Twilight Inn is a combination cafe and pool room. The cafe part has tables and a counter for people who desire food with sufficient space for two pool tables in the back part of the cafe. There is a back room with an entrance where it appears that black people were expected to go to be served. When the party reached the Inn, appellant, Mack Taylor and George Perkins went into the front part of the cafe. Georgia Mae Terrell went around to the back where she said she was accustomed to go for service. Marie Williams remained in the pickup truck. When the three black men entered the cafe, they went to the counter and sat down on stools. There had been a ballgame that night and the cafe was crowded. Shortly thereafter Cleve McQueen, who had stepped outside to talk to someone, reentered the cafe. He walked up to appellant and told him he was in his seat. According to the testimony of McQueen appellant made no comment and immediately moved from the stool where he was sitting to another one. McQueen said that while the blacks were sitting there, he heard someone behind him say to the blacks, “You can get served in the back.” He did not know who made the remark. In any event the blacks did not get served, and McQueen said he did not know when they left the counter. McQueen testified that after a short lapse of time he started to go home and when he reached the door he looked up and saw appellant who was right at him. He said appellant had a knife in his hand and that appellant stabbed him and ran. McQueen then got out his knife and started running after Toney. He said he struck at him with his knife but did not think he hit him. When Toney reached the pickup truck, he reached into the truck and got a rifle that McQueen thought was a shotgun. Toney pointed the gun at him without saying anything. McQueen then hollered to the people behind him, “You all stay back, he has a shotgun.” Appellant then immediately got into the truck with two other members of the party and drove away. McQueen went to the hospital for treatment of his wounds. He had a stab wound in the abdomen and was required to remain in the hospital for eight days for treatment. McQueen‘s version of the incident was verified by three other witnesses who testified for the state.
Appellant and the men who were with him testified that after they were seated in the cafe, McQueen told appellant, “They
On cross examination appellant was asked by the district attorney if Marie Williams did not tell them that if they went into the front part of the cafe there would be trouble, and that as a result of this warning they then armed themselves with knives and went into the front part of the cafe. Appellant admitted that Marie Williams did tell them that if they went into the front part of the cafe there would likely be trouble, but he denied that he armed himself with a knife because of this statement. He said that the knife that he had was an ordinary knife that he used when hunting and fishing. Appellant, of course, was justified in believing that he had a right to enter the front of the cafe to be served with food without causing any trouble.
Appellant‘s version of what happened was substantiated in material particulars by the other members of the party, including Marie Williams who remained in the truck. She testified that while in the truck she heard someone outside of the cafe say in a loud voice, “he was going to kick him a nigger.” She then got out of the truck and went up to the window of the cafe to see what was happening. As she stood there looking she saw Toney and the others get up to leave. When they attempted to leave a number of people got up and followed them. One of them pushed Toney into the door and cut him in the back with a knife. As Toney and the others came out the door one of them told her to run, which she did. When she reached the walkway going to the back she stopped and looked around. She saw a man with a knife chasing Toney and heard him say, “Oh! Oh! Black boy I‘m going to kill you now.” When Toney got the rifle and the man backed away, she ran to the truck and she, George Perkins and appellant got into the truck and immediately left. She said that when they reached home, Toney was bleeding and after he removed his shirt, she cleaned and dressed the cut place on his back.
Appellant assigns several grounds for reversal of this case, but we will only discuss those which in our opinion merit discussion. It is first contended that the trial court was in error in refusing to sustain appellant‘s motion to strike all remarks of the district attorney concerning flight of the witnesses for the appellant and the reference of the district attorney which insinuated that appellant and his witnesses had perjured themselves when testifying on a
The questions asked by the district attorney and his remarks relative to some witnesses having perjured themselves by testimony taken on the motion for continuance amounted to an attempt to impeach appellant and his witnesses in an improper manner. The remarks in the presence of the jury were improper and prejudicial and the court should have instructed the jury to disregard these remarks and the district attorney should have been required to refrain from his attempt to impeach appellant‘s witnesses in an improper manner. Mack Taylor was not charged with any crime and the fact that he left Pearl River County shortly after this incident was immaterial and had nothing to do with guilt or innocence of the appellant. While it is proper for the district attorney to investigate to determine whether a witness or witnesses have testified falsely in a proceeding, it is not proper to do so in the trial of another proceeding to the prejudice of the accused then on trial. The state urges that the error, if any, was not prejudicial and therefore harmless. However, under the facts and circumstances of this case, we are of the opinion that this error was prejudicial.
Appellant also contends that the trial court was in error in granting Instruction No. 4 for the State which is in the following language:
The court instructs the jury for the State of Mississippi, that while malice aforethought is a necessary ingredient to the crime charged, still “malice aforethought” means the same thing as cutting a human being with a deadly weapon with the deliberate design to effect the death of any human being; and this
malice aforethought and deliberate design do not necessarily mean hatred or illwill, and need not exist in the mind of the defendant for any definite time, not for days or hours or even minutes, but if the deliberate design to kill exists but for an instant at the very time the deadly weapon is used, this is sufficient premeditation and deliberation to constitute “malice aforethought.”
We have recently had the occasion to analyze and discuss this instruction in two cases and have condemned it. In Pittman v. State, Miss., 297 So.2d 888 (decided July 15, 1974), which was a murder case, wherein a similar instruction was granted we stated:
The vice of the instruction is that it requires the jury to convict the defendant of murder if it finds that premeditation or deliberate design to kill the deceased existed at the time the killing occurred. The instruction fails to inform the jury that there are instances in which a deliberate design to kill may exist at the moment the fatal blow was struck and yet the homicide may be justifiable or excusable.
Mississippi Code Annotated section 97-3-15 (1972) , lists eight situations under which homicide is justifiable, andMississippi Code Annotated section 97-3-17 lists three situations under which homicide is excusable. In addition thereto, the deliberate design to kill might exist and the killing be manslaughter. This instruction pared away the rights of the defendant and required the jury to find him guilty of murder even though the killing might have been justifiable by reason of self-defense. One may have a deliberate design to kill and yet not be guilty of murder. (Emphasis added).
All justices are of the opinion that this instruction is erroneous and should not have been granted in this case. However, the record fails to show that appellant objected to the instruction as required by Mississippi Supreme Court Rule 42, (1967). A majority of the Court is of the opinion that due to the facts and circumstances of this particular case, it is one of those extreme cases where the court should of its own motion raise an objection to the instruction to prevent a manifest injustice. It cannot be said in this case that the instruction, when read together with the other instructions, was harmless since the court refused the only two instructions offered by the appellant dealing with self-defense. Although these two instructions were properly refused in the form in which they were requested, the fact remains that the foregoing instruction could have led the jury to believe that appellant did not have the right to act in self-defense.
Appellant also urges that the testimony on behalf of the state is insufficient to support the charge of felonious intent to kill and murder with malice aforethought. It is argued with considerable merit that the evidence simply does not show that appellant had any intent to kill Cleve McQueen. It is argued that any such intent is negated by the fact that if appellant had such an intent he could have very easily shot McQueen at a time when McQueen was coming toward him with a knife. On the other hand, the state argues that the evidence was in conflict as to who was the aggressor, the jury could find from the evidence that appellant made an assault on McQueen with a knife at a time when McQueen was unarmed, and the jury could properly infer from the use of a deadly weapon that appellant intended to kill McQueen. A majority of the court is of the opinion that this was a jury question and for this reason there is no merit in this assignment of error. However, Chief Justice Gillespie and Justice Smith are of the opinion that the evidence on behalf of the state taken in its entirety is not sufficient to show an intent to kill and murder. The state brought out the fact that the appellant had stabbed McQueen. After being stabbed McQueen chased appellant with a knife. Appellant secured the rifle yet made no attempt to do anything except to
After a careful review of the whole record in this case and in the light of the errors noted, we can not say with confidence that appellant received a fair and impartial trial. Consequently, this case should be and is reversed and remanded for a new trial.
Reversed and remanded.
All Justices concur, except BROOM and WALKER, JJ., who dissent.
BROOM, Justice (dissenting):
Here the majority of the Court reversed a conviction upon a criminal charge in order “to prevent a manifest injustice.” I would affirm because such an injustice does not appear to be demonstrated.
The majority opinion deals considerably with remarks and questions of the district attorney concerning flight of witnesses from Pearl River County together with his remarks relative to some of the witnesses having perjured themselves on the hearing of a motion for continuance. According to the court‘s opinion such error by the district attorney was prejudicial. While it is true that the questions asked by the district attorney on the subject of flight may not have been entirely appropriate, my opinion is that his reference to flight did not reach the proportions of reversible error. This is especially true in this case where the presiding judge sustained defense counsel‘s objections to such remarks every time objection was made. Outside the presence of the jury trial judge overruled a motion to instruct jurors to ignore questions propounded by the district attorney on the issue of flight.
It is easy for an appellate court to say that the action of a trial judge in such a situation is reversible error. My opinion is that considerable latitude should be accorded the trial judge who no doubt in this instance was of the opinion that having sustained the objections he had rectified the error. He obviously reasoned that the error would be accentuated and worsened by any further reference to the matter within the hearing of jurors. Be that as it may, it is not logical or likely that the jurors faulted or blamed appellant for any removal or flight from the jurisdiction on the part of any witness absent any suggestion that the appellant was connected with such flight.
Reversal seems also to be based in part on the granting of a state‘s instruction by the trial court. Admittedly the instruction is erroneous. However, according to the record, no objection to the instruction was made at the trial and yet the error has been noted by this Court of its own motion. Careful study of all the instructions given for both sides reveals that it is not apparent or even likely that the jurors were misled or misguided by the defective instruction. As this Court has often stated, we should look at the totality of the instructions and, when considered in their entirety, there is no reversible error unless it is likely that a defective instruction resulted in an improper verdict. In the present case it appears that the jurors could not have been led to believe that they could find the appellant guilty of the felony charged against him if they believed that he acted in self-defense. To say that the erroneous instruction should be considered by this Court defeats the very practical purpose of the circuit judges who adopted the rule applicable here. The rule is that erroneous instructions must be objected to at the trial, and the objections made to appear in the record before they can be argued on appeal. This Court has
The majority correctly rejected an assignment of error to the effect that the testimony on behalf of the state is insufficient to support the charge of felonious intent to kill and murder with malice aforethought. In effect, the majority said that even though the evidence is sufficient to sustain the conviction, the case should be tried again because the court “cannot say with confidence that appellant received a fair and impartial trial.”
My study of the entire record leads me to conclude that the trial court appropriately permitted the jury to function so as to resolve a factual question upon conflicting evidence from which the jurors could have found for either the state or the appellant. A quality of rightfulness should be attached to a judgment of a court based upon a jury verdict. It follows that no jury verdict should be disturbed by an appellate court except where it is clear that either the evidence was insufficient, or there was such a malfunction in the trial as to deprive the appellant of a fair trial. In my opinion a careful examination of the record does not indicate any justifiable reason for this Court to logically conclude that the appellant may not have received a fair trial. As we have held before, no litigant in either criminal or civil cases is entitled to a perfect trial. He is entitled to a fair trial, which is what he received in this case so far as is disclosed by the record before us. Another important factor preponderating toward affirmance here is that appellant was vigorously represented by experienced and capable counsel of his own choosing. Under such circumstances I feel that this Court should let the adversary system serve its time tested and proven purpose.
Accordingly, and with considerable reluctance, I have made my dissenting views known because I believe what the majority has done in this case is too much in the nature of an encroachment upon our adversary system.
WALKER, J., joins in this dissent.