Opinion
No. 30853.
February 12, 1934.
1. HOMICIDE.
Evidence justified conviction for murder.
2. WITNESSES.
Refusal of demand that clerk issue process for five hundred fifty witnesses desired by defendant on motion for change of venue in murder prosecution, wherein court permitted one hundred witnesses to be summoned from defendant's list held not error.
3. CRIMINAL LAW.
Refusal to consider admissibility of defendant's confessions prior to impaneling of jury in murder prosecution held not error.
4. JURY.
In murder prosecution, limiting number of special venire to one hundred citizens after granting motion for special venire by defendant who asked for two hundred fifty citizens held not abuse of trial court's discretion (Code 1930, section 2061).
APPEAL from Circuit Court of Lee County.
Chas. S. Mitchell, J.W.P. Boggan and Claude F. Clayton, all of Tupelo, for appellant.
The appellant filed his affidavit in due and proper form under the statute, requesting a change of venue. Under the law, upon the filing of this affidavit, there arises a prima facie case that the venue should be changed and the burden of proof then shifts to the state to show differently.
Tennison v. State, 31 So. 421.
To render the confession of a defendant in a criminal case admissible as evidence the court must, if requested by him, determine outside of the hearing of the jury whether such confession was made voluntarily; and it is within the exclusive province of the court to determine this, and not a question for the jury, even though the evidence on such point be conflicting.
Mose Ellis v. State, 65 Miss. 44; Fisher v. State, 110 So. 361.
It is the contention of appellant that the court below erred in confining the venire to the names of one hundred citizens when appellant requested two hundred and fifty citizens.
It is a well settled principle of law that a confession of a person charged with the commission of a crime to be admissible must be effectively shown to have been made voluntarily by the defendant without fear, without hope of obtaining reward or leniency, and without acting under fear or compulsion.
Ammons v. State, 80 Miss. 592, 32 So. 9; Miller v. State, 94 Ga. 1, 21 S.E. 128; Newman v. State, 49 Ala. 9; State v. Jay, 89 N.W. 1070; Commonwealth v. Preece, 5 N.E. 494; State v. Whitfield, 70 N.C. 356; Johnson v. State, 65 So. 218, 107 Miss. 196; Whip v. State, 109 So. 697, 143 Miss. 757; Matthews v. State, 59 So. 842, 102 Miss. 549.
We submit that the conviction in this case is based solely upon circumstantial evidence, which must be received with the utmost care and caution; and to be conclusive must exclude every reasonable hypothesis other than that of guilt.
Algherie v. State, 25 Miss. 584; Caleb v. State, 39 Miss. 721; Pitts v. State, 43 Miss. 472; Haywood v. State, 90 Miss. 461, 43 So. 614; Williams v. State, 95 Miss. 671, 49 So. 513; Permenter v. State, 99 Miss. 453, 54 So. 949; Bird v. City of Hazlehurst, 101 Miss. 57; McComb City v. Hill, 56 So. 346; Reddick v. State, 72 Miss. 108; Harris v. State, 71 Miss. 463; Monroe v. State, 71 Miss. 196.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
It is well enough to observe that the best evidence that there was no prejudgment as to entitle defendant to a change of venue is the fact that the witnesses who had been mixing and mingling with the people of the community had heard no discussion of the matter for a couple of months or more prior to this hearing.
Butler v. State, 39 So. 1005; Jones v. State, 133 Miss. 684, 98 So. 150; Mackie v. State, 138 Miss. 740, 103 So. 379; Long v. State, 133 Miss. 33, 96 So. 740; Walden v. State, 129 Miss. 686, 92 So. 820; Cummins v. State, 144 Miss. 634, 110 So. 206.
The object of the law is to give a person a fair and impartial trial and if this result is reached, the court will not disturb the action of the trial court.
Fisher v. State, 145 Miss. 116, 110 So. 361; Peoples v. State, 33 So. 289; Wexler v. State, 142 So. 501.
The court had the right, authority and the duty to limit the number of witnesses to be heard on the motion.
It is quite true that a defendant is entitled to have a preliminary inquiry into the admissibility of confessions and this inquiry should be had in the absence of the jury and should be passed on by the court before it goes to the jury. But this right does not extend so far as to require the trial judge to go into the matter before the confessions are actually offered as evidence.
Holmes v. State, 146 Miss. 351, 111 So. 860.
Section 2061 of the Mississippi Code of 1930, provides that a special venire shall not consist of less than forty names; all over forty names within the sound discretion of the trial judge and this discretion is expressly vested in the trial judge by said section 2061.
Walford v. State, 106 Miss. 19, 63 So. 316.
It was proper for both the oral and the written statements to be admitted in evidence.
Tyler v. State, 159 Miss. 223, 131 So. 417; Thurman Ricks v. State, 151 So. 572; Cody v. State, 148 So. 627.
Argued orally by J.W.P. Boggan and Chas. S. Mitchell, for appellant, and by W.D. Conn, Jr., for the state.
Bob Owens was indicted for the murder of R.B. Johnson, was tried by a jury, convicted, and sentenced to be hanged. From this sentence, he prosecutes an appeal.
We deem it unnecessary to state the facts of this killing in detail, save to say that Mr. Johnson was a white man who lived alone in the country and was found with his head beaten almost to a pulp by the use of some stick or bludgeon. There were signs that a struggle with his assailant had taken place in his house, and it appeared that he was robbed. The killing occurred at night. The case rests entirely upon the state's evidence, as none was introduced by the defendant.
1. On the facts of the case there was ample evidence to support the verdict, and there was no error in the admission or rejection of evidence by the court. We find no reversible error in the instructions given.
2. The appellant argues that the court erred in overruling his motion for a change of venue. The contention is without merit. On the hearing the state offered about thirty witnesses, apparently from all sections of the county, and the defendant offered about twenty-five witnesses. Without analyzing the testimony we will say that the state of facts as to the state of mind of the public in Lee county was practically the same as that described in the cases of Butler v. State (Miss.), 39 So. 1005, and in Jones v. State, 133 Miss. 684, 98 So. 150, in which cases the court below overruled a motion for a change of venue.
3. The court committed no error in ordering the clerk not to issue process for five hundred fifty witnesses desired by appellant as witnesses on the motion for a change of venue. The court permitted one hundred witnesses to be summoned from appellant's list. Appellant's counsel declined to select one hundred from that list, thereupon the clerk had that number summoned by process. It is always within the power of the court to deny an unreasonable demand. It further appears that only fifty-five witnesses were examined by both the state and the defendant on the change of venue, and the sentiment of the county was thoroughly sounded.
4. Appellant urges that the court committed error in not inquiring into the admissibility of certain confessions which the defendant alleged would likely be used by the state in the trial of the case. This motion was made prior to the impaneling of the jury. The court properly declined to go into that matter at that time. The principle has been settled by this court in Holmes v. State, 146 Miss. 351, 111 So. 860.
The defendant asked for a special venire of two hundred fifty citizens. The motion for a special venire was sustained but the number thereof was limited to one hundred. This was a matter within the discretion of the court and was not abused in this case. See section 2061, Code 1930.
On the whole record we are fully persuaded that the appellant has had a fair and impartial trial before a fair and impartial jury, and that there is no reversible error herein.
The death penalty will be executed in this case and Friday, the 16th day of March, 1934, is fixed as the date for his execution.
Affirmed.