Opinion
No. 34996.
June 8, 1942.
1. HOMICIDE.
Where defendant selected character of instrument to be used in assault upon a taxicab driver for purpose of robbery and passed instrument from where defendant was seated on front seat of taxicab to defendant's co-conspirator on back seat at opportune time, whether defendant intended that blows to be inflicted upon driver by co-conspirator should be of sufficient force to produce death was for jury in prosecution for murder of driver.
2. HOMICIDE.
In prosecution for murder of a taxicab driver, jury could consider fact that driver was acquainted with defendant and his co-conspirator and that they did not intend that driver should live to tell story of their crime in determining whether there was merely an intent to assault and rob driver and not to kill him.
3. CRIMINAL LAW.
Where neither the sufficiency nor the competency of the evidence was challenged, Supreme Court would concern itself only with question whether accused had a fair and impartial trial.
4. HOMICIDE.
The extent of punishment to be imposed upon conviction for murder was for jury's determination.
5. CRIMINAL LAW.
The Supreme Court cannot exercise the right of clemency in a criminal case.
APPEAL from the circuit court of Claiborne county, HON. R.B. ANDERSON, Judge.
G.S. Watson, of Port Gibson, for appellant.
The whole testimony points to the conclusion that appellant, a young, ignorant negro boy, was led into his participation in the crime by the much older and experienced confirmed criminal, Percy Flemings; that after he had had time to reflect and to realize what had happened, he immediately gave himself up to the law, and confessed to everything, and gave every cooperation.
In the light of these facts, we ask the Supreme Court to review the record for the purpose to allow appellant a new trial before another jury; or, to direct a less harsh and extreme penalty and punishment of appellant, who has shown great remorse for his participation in the crime; and submit that a life sentence would be proper punishment of him under the circumstances.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
This court has nothing to do with the granting of clemency. The jury had a right, should they have seen proper, to have given the appellant a life sentence, but they did not do so and this court is not concerned with the jury's verdict in that regard. The appellant did not deserve any clemency. The guilt is clear, and the crime was atrocious. Repentance of the commission of crime does not mitigate the crime itself, and there is no power in this court to grant clemency. That power rests with another department of the government.
The appellant Lawrence Wright was jointly indicted with Percy Flemings for the murder of Winfield Bates, a negro taxi driver who was found dead in his taxicab at the side of the road at night, after having been beaten to death by Flemings with a piece of iron, which the appellant Wright had procured at a box factory late that afternoon for use in this contemplated assault upon their intended victim, for the purpose of robbery. The defendants were tried separately and sentenced to suffer the penalty of death. Neither the sufficiency nor the competency of the evidence, including the full, free and voluntary confessions of the accused, to sustain the conviction is challenged. It is urged however on behalf of the appellant Lawrence Wright that he is a young negro about 20 years of age, who had not previously been charged with crime, and was induced by the older negro, Flemings, an ex-convict, who had served two terms in the penitentiary, to go into the plot to assault and rob the said Bates and divide his money, as was done; that the appellant Wright did not intend that death should result from the assault that Flemings was to make with the piece of iron that he gave him to use; and that therefore the verdict, carrying the death penalty, is so "needlessly harsh" as to evince prejudice on the part of the jury.
But whether the appellant intended that the blows to be inflicted upon their victim by his co-conspirator in crime should be of sufficient force to produce death, was for the consideration of the jury, since he selected the character of instrument to be used, kept it concealed for four or five hours for that purpose, passed it from where he was seated on the front seat of the car by the driver to the assailant on the back seat at the opportune time, and then submitted without protest to the deadly manner in which it was so brutally wielded. Moreover, it was but a natural and probable consequence that death would result from striking a person on the head with this piece of iron with enough force to render the victim helpless to defend himself against robbery. Also in determining whether there was merely an intent to assault and rob, and not to kill, the jury was entitled to consider the fact that the taxi driver was acquainted with these assailants and that they did not intend that he should live to tell the story of their crime.
Aside from the complaint as to the severity of the sentence appealed from, it is not contended that the accused did not have a fair and impartial trial. As an appellate court we are to concern ourselves only with the latter question; it was the province of the jury to determine the extent of the punishment, and it has done so under proper instructions from the trial judge. The right of clemency is not ours to exercise, and there being no reversible error committed by the trial court the judgment and sentence of death must be affirmed; and Friday, July 31, 1942, is fixed as the date for its execution.
Affirmed.