Opinion
No. 34119.
June 10, 1940. Suggestion of Error Overruled July 1, 1940.
1. CRIMINAL LAW.
In determining whether trial court erred in overruling motion for change of venue, Supreme Court would assume that answer of jurors demonstrated that there was no prejudgment of the cause, where record did not contain the voir dire examination of veniremen and the jurors who finally tried the case.
2. CRIMINAL LAW.
That 52 persons were examined for jury service in homicide prosecution, and 13 disqualified themselves because of their fixed opinions, did not demonstrate a prejudgment by the people of the county so as to entitle accused to change of venue.
3. CRIMINAL LAW.
An application for change of venue is addressed to sound discretion of trial judge whose ruling thereon will not be reversed unless it clearly appears that ruling is against weight of evidence and that trial judge has abused such discretion, and in passing upon action of trial judge, Supreme Court will look to completed trial including voir dire examination of jurors to ascertain if defendants have received a fair trial.
4. CRIMINAL LAW.
Overruling motion for change of venue in murder prosecution was not an abuse of discretion, where there was conflict in evidence as to existence of prejudice in county where trial was had.
5. CRIMINAL LAW.
A conviction of murder would not be reversed because indictment and trial were had promptly after homicide, where it was not intimated that accused desired a continuance or any delay, one of accused was represented by his own selected counsel, and other accused by two members of bar appointed by the court, and both accused had benefit of able counsel and no application for delay or continuance was made.
6. CRIMINAL LAW.
In murder prosecution against rumrunners, one of whom shot constable who with others was attempting to search automobile in which rumrunners were traveling, a statement made by an informant over the telephone to marshal that automobile carrying whisky would be at certain point was not inadmissible as "hearsay."
7. HOMICIDE.
In murder prosecution against rumrunners, one of whom shot constable who attempted to search automobile in which whisky was being transported, refusal to grant instruction limiting conviction to no higher crime than manslaughter was not error on theory that attempted search without warrant was made without probable cause because of insufficiency of description of automobile, where constable knew the rumrunners and the person who informed officers that he would be in automobile in which whisky was being transported (Const. 1890, sec. 23).
8. HOMICIDE.
In murder prosecution against rumrunners, one of whom shot constable who attempted to search automobile in which whisky was being transported, an instruction limiting conviction to no higher crime than manslaughter was properly refused, where evidence disclosed that no one of parties engaged in arrest or search made any demonstration to harm accused, but merely barricaded road and called on driver of automobile to halt.
9. HOMICIDE.
In murder prosecution against rumrunners, one of whom drove automobile containing whisky and other of whom shot constable, driver could not claim that he could not be responsible for act of other who did the shooting because of lack of conspiracy, where evidence disclosed that rumrunners agreed to transport intoxicating liquor for sale, that driver handed to other a rifle, and that when other requested more cartridges, driver said, "There's sixteen in the rifle. There's enough in there if anything should happen to occur," which evidence was sufficient to show a "conspiracy."
10. CRIMINAL LAW.
Where parties combine to commit a crime, law imputes guilt of each to all engaged and pronounces all guilty of any crime committed by any in execution of common purpose as one of its natural and probable consequences, notwithstanding none of parties intended at the outset to do particular thing constituting the crime, and if act is not the natural outcome of common design but is the independent act of some of party, conceived of by them, and outside of common purpose, those not participating in it are not responsible for such independent act.
11. CRIMINAL LAW.
In murder prosecution accused were not entitled to a mistrial because venireman said in presence of others that he thought accused were guilty.
12. HOMICIDE.
Evidence sustained conviction of murder.
APPEAL from the circuit court of Jefferson Davis county; HON. J.C. SHIVERS, Judge.
O.C. Luper and G.M. Milloy, both of Prentiss, for appellant, Hilton Fortenberry.
In addition to the evidence of the several witnesses, the record discloses the publication of several articles published in every newspaper published in this section, as well as the local paper, the Prentiss Headlight, all of which showed the public sentiment was very high, and mobs were being organized, etc., and in addition to all of this the National Guard was called by the sheriff of the county to protect the defendants herein. The trial was had only eleven days after the crime was committed.
Saffold v. State, 76 Miss. 258, 24 So. 314; Tennison v. State, 31 So. 421, 79 Miss. 708; Brown v. State, 83 Miss. 654, 36 So. 73; Anderson et al. v. State, 92 Miss. 656, 46 So. 65.
In the following cases this court held a motion for a change of venue should be granted, viz., Eddin v. State, 110 Miss. 780, 70 So. 898; Keeton v. State, 132 Miss. 732, 96 So. 179.
This defendant was placed on trial eleven days after the crime for his life, in a strange county, amongst strangers, and where friends and relatives of the dead man lived. And in the case of Busby v. State, 170 So. 146, the court in passing upon the motion, said the defendant should have been given more time. The crime in that case was committed on May 9, 1934 and case tried on July 3, 1935. Whereas in this case at bar only eleven days elapsed between the day of killing and the date of trial, and surely the speed limit was exceeded.
The court permitted the officers to give evidence as to how they stopped the car without any warrant or search warrant. In other words, the search was unlawful.
Sec. 23, Const. of Miss.; Sec. 1227, Code of 1930; Elardo v. State, 145 So. 615; Mapp v. State, 114 So. 827; Miller v. State, 129 Miss. 774, 93 So. 2; Falconer v. State, 134 Miss. 253, 98 So. 691; Branch v. State, 157 So. 875; McGowan v. State, 185 So. 826; Messer v. State, 108 So. 144; Lenoir v. State, 132 So. 325; Ford v. City of Jackson, 121 So. 278; Butler v. State, 135 Miss. 885, 101 So. 193.
We respectfully submit that to take all of the testimony offered as true, which we say is not, and the further fact of the officers having been engaged in attempting to make an unlawful search that the defendants herein would be guilty of no crime greater than manslaughter.
Walker v. State, 189 So. 804; Jones v. State, 170 Miss. 581, 155 So. 430; Bergman v. State, 133 So. 208; Fletcher v. State, 129 Miss. 207, 91 So. 338; Stenson v. State, 80 So. 506; Strickland v. State, 81 Miss. 134, 32 So. 921; Mobley v. State, 68 Miss. 605, 9 So. 445; Cryer v. State, 71 Miss. 467, 14 So. 261; Taylor v. State, 194 So. 589.
We respectfully submit that the court erred in overruling the motion to quash the venire and enter a mistrial when Hammie Fortenberry, the venireman, being questioned for jury service, stated in the presence of all the jurors, "From what I have heard they are guilty." This statement was highly prejudicial to the defendant.
The court seemed to have granted the state instructions on the theory of a conspiracy when as a matter of fact the record doesn't show any conspiracy at all, and therefore the instructions given the state were not in accordance with the law and the proof in this case. T.B. Davis, of Columbia, and E.J. Currie, of Hattiesburg, for appellant, Jerome Franklin.
The trial court erred in overruling the motion of Jerome Franklin for a change of venue.
Saffold v. State, 76 Miss. 258, 24 So. 314; Jamison v. People, 145 Ill. 357, 34 N.E. 486; 3 Am. Eng. Enc. of Law, (1 Ed.), p. 97; Johnson v. Com., 82 Ky. 116.
In the case at bar the appellant, Jerome Franklin, was not only a stranger in Jefferson Davis County, he was a negro charged with having killed a white man. Not only was the deceased a prominent white man, but he was known and liked by practically every citizen in the county. Not only did mob violence threaten the appellant, but the aid of the state militia had to be enlisted. We believe this honorable court will take judicial knowledge of the fact that county officers in Mississippi do not call for the aid of the National Guard except in extreme cases.
The prisoner, whether guilty or not, is unquestionably entitled by the law of the land to have a fair and impartial trial.
Tennison v. State, 79 Miss. 708, 31 So. 421; People v. Yoakum, 53 Cal. 571; Brown v. State, 83 Miss. 645, 36 So. 73; Anderson et al. v. State, 92 Miss. 656, 46 So. 65.
We respectfully call the attention of the court to the significant and impressive fact disclosed by this record that twenty-five per cent (25%) of the first fifty-two (52) special veniremen voluntarily declined to qualify as jurors because they admitted that they had prejudged the case. The appellant exercised thirteen (13) peremptory challenges, and was then forced to trial by a jury unacceptable to him.
Magness v. State, 103 Miss. 30, 60 So. 8.
We anticipate that the argument may be advanced by the state that the granting or not of a change of venue was within the discretion of the learned circuit judge, that his action should be final. This honorable court well knows the tenseness that surrounds and permeates a trial of the nature of the case at bar, a case involving a negro charged with having murdered a prominent and popular white man. The trial judge may have been able not only to see, but to feel, the atmosphere that we submit existed, and it may have been asking too much of a trial judge to expect him to grant a change of venue. The real safeguard of the rights of a defendant is the power and courage of the supreme court to review and reverse the ruling of a trial judge in such cases.
Eddins v. State, 110 Miss. 780, 70 So. 898.
We earnestly submit that the facts disclosed by the record in the case at bar impel and compel but one conclusion, that the trial court erred, and grievously so, in refusing to grant the appellant a change of venue.
Keeton v. State, 132 Miss. 732, 96 So. 179.
The trial court erred in forcing the appellant, Jerome Franklin, to trial, over his objection, within eleven (11) days after the alleged commission of the alleged murder for which he was tried and convicted, and within eight (8) days after his indictment, and within three (3) days after his arraignment.
Busby v. State, 170 So. 146.
The trial court erred in overruling the appellant's motion to quash the special venire and to enter a mistrial when one of the special veniremen, Hammie Fortenberry, stated, in substance, in response to an inquiry of the court, and in the presence and hearing of the jurors then in the box and in the presence and hearing of all the remaining veniremen that "from what I have heard they are guilty."
The trial court erred in permitting the district attorney, over the objection of the appellant, to go into the witness room and there remain during the examination of the state's witnesses upon the question of whether or not probable cause existed for the search of the automobile of the appellant.
The trial court erred in permitting the witness, Barnes, to testify, over the objection of the appellant, about the alleged quantity of liquor in the appellant's car.
The people shall be secure in their persons, houses, and possessions, from unreasonable seizure or search; and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized.
Sec. 23, Const. of Miss.
There can be no lawful arrest of a person in Mississippi for the commission of a misdemeanor, unless (1) the officer making the arrest is armed with a warrant, or (2) unless the misdemeanor is committed in the presence of the officer.
Sec. 1227, Code of 1930, Letaw v. U.S.F. G. Co., 120 Miss. 763, 83 So. 81; Butler v. State, 135 Miss. 885, 101 So. 193.
There can be no lawful search of the person, except as an incident to a lawful arrest.
There being no justification for the arrest or search of the person of the appellant, Franklin, on the occasion of the alleged homicide, the lawfulness or unlawfulness of the conduct of Marshal Polk and his associates, including the deceased, necessarily depends upon the right of the officer and his assistants to stop and search the automobile occupied by the appellant Franklin, upon the occasion in question. The marshal and his assistants admittedly had no search warrant. Did probable cause exist for stopping and searching the automobile? We say that it did not. Certainly the right of an officer acting upon probable cause can be no greater than the authority of an officer acting under a valid search warrant.
Elardo v. State, 145 So. 615; Mapp v. State, 114 So. 827; Miller et al. v. State, 129 Miss. 774, 93 So. 2.
The record shows affirmatively that the automobile actually stopped and searched belonged to and was in possession of the appellant, Franklin, and it therefore came within the constitutional guaranties.
Falkner et al. v. State, 134 Miss. 253, 98 So. 691; Elardo v. State, 145 So. 615; Branch v. State, 157 So. 875; McGowan v. State, 185 So. 826; State v. Messer, 108 So. 144; Lenoir v. State, 132 So. 325.
Marshal Polk and his associates could not justify their conduct on the occasion in question by any theory known to the law. If the law required no more than the name of the occupant of an automobile to justify its search, if no special designation or description was required by the constitution, still the attempted arrest and search in this case would have been unlawful.
Butler v. State, 135 Miss. 885, 101 So. 193; Sellers v. Lofton, 149 Miss. 849, 116 So. 104; Ford v. City of Jackson, 121 So. 278.
Marshal Polk and his companions and assistants, including the deceased, having been engaged in attempting to make an unlawful arrest or an unlawful search, it necessarily follows that the appellant, Franklin, could have been guilty of no more than manslaughter, and that the jury should have been so instructed.
Maury v. State, 68 Miss. 605, 9 So. 445; Cryer v. State, 71 Miss. 467, 14 So. 261; Strickland v. State, 81 Miss. 134, 32 So. 921; Stenson v. State, 80 So. 506; Fletcher v. State, 129 Miss. 207, 91 So. 338; Bergman v. State, 133 So. 208; Jones v. State, 170 Miss. 581, 155 So. 430; Walker v. State, 189 So. 804.
The verdict of the jury and the judgment and sentence of the trial court are not supported by the law or the evidence, but are contrary thereto.
Harper v. State, 83 Miss. 402, 35 So. 572; Anderson, Clayton Co. v. Rayburn et al., 192 So. 28; Huggins v. State, 115 So. 213; 29 C.J. 1075.
We respectfully submit that the State of Mississippi elected to proceed against the appellant, Jerome Franklin, upon a charge that the record wholly and completely fails to sustain, and that the theory and instructions presented by the state are without any supporting proof.
Crawford v. State, 133 Miss. 147, 97 So. 534.
T.B. Davis, of Columbia, for appellant, Jerome Franklin.
Motion for change of venue should have been granted.
Fisher v. State, 145 Miss. 116, 110 So. 361; Magness v. State, 103 Miss. 30, 60 So. 8; Brown v. State, 83 Miss. 645, 36 So. 73; Sanford v. State, 76 Miss. 258, 24 So. 314.
The court below committed error in granting the state Instruction No. Five, which reads as follows: "The court instructs the jury for the state that if you believe from all the evidence in this case beyond a reasonable doubt that either of the defendants did wilfully, unlawfully and feloniously and of his malice aforethought shoot, kill and murder one J.C. Sanford, a human being, and that the other, at the time thereof, was present aiding, assisting, abetting, or encouraging the other in so doing, both are equally guilty under the law of the crime committed, and you should find both defendants guilty of the crime of murder."
According to this instruction, if Franklin were present and in any way aided, assisted, abetted or encouraged Fortenberry in the commission of the crime, he too was guilty regardless of any intent or malice or purpose on his part. According to it, if the jury believed that Fortenberry did the act with his malice aforethought and Franklin was present and in any way assisted him, then the malice which Fortenberry may have nursed, was sufficient to carry with it the conviction of Franklin, though whatever Franklin may have done toward aiding, abetting, or assisting or encouraging may not have been with any purpose on the part of Franklin to take the life of the deceased. The instruction does not tell the jury that such aiding, abetting, etc., must have been with malice aforethought so far as Franklin is concerned, and it does not tell the jury that such aiding, assisting, abetting, or encouraging was wilful, or rather that it must have been wilful and felonious, and that it must have been with malice.
Crawford v. State, 133 Miss. 147, 97 So. 534; 1 Wharton's Criminal Law (11 Ed.), p. 286; Hairston et al. v. State, 54 Miss. 689; Woolweaver v. State, 50 Ohio 277, 40 A.S.R. 667, notes; Hicks v. U.S., 37 L.Ed. 1140; Harper v. State, 83 Miss. 402; Kearney v. State, 68 Miss. 239, 8 So. 292; Hunter v. State, 74 Miss. 515, 21 So. 305; Jackson v. State, 79 Miss. 45, 30 So. 39; Loftin v. State, 79 Miss. 723, 31 So. 420; Woods v. State, 81 Miss. 165, 32 So. 988; Thames v. State, 82 Miss. 667, 35 So. 171; Cooper v. Johnson, 81 Mo. 483; Cavell v. State, 46 Ala. 195; True v. Commonwealth, 90 Ky. 653, 14 S.W. 684.
First, this instruction eliminates all question of malice, intent or premeditation on the part of Franklin; and, second, it fails to inform the jury as to what Franklin may have said or done which amounted to an encouragement, abetting, or aiding; and, third, there are no facts on which to base this instruction.
16 C.J. 132.
The facts fail to establish guilt of the defendant, Franklin.
1 R.C.L. p. 141, par. 16 and p. 158, par. 4.
W.D. Conn, Jr., Assistant Attorney-General, for appellee.
It is well settled that application for a change of venue is addressed to the sound discretion of the trial judge. His ruling in this respect is no different from his rulings in all other discretionary matters.
The court will not only look to the evidence which was produced at the hearing but will also take into consideration the voir dire examination of the jury, if it be present in the record, and will also look to the record of the completed trial from beginning to end, and if it appears from all these things that the defendant has been given a fair and impartial trial, the court will not hold the trial court to have erred in denying the change of venue sought by the defendant.
Mackie v. State, 138 Miss. 740, 103 So. 379; Wexler v. State, 167 Miss. 464, 142 So. 501; Cummins v. State, 144 Miss. 634, 110 So. 206; Richardson v. State, 153 Miss. 654, 121 So. 284; Myers v. State, 167 Miss. 76, 147 So. 308; Fisher v. State, 145 Miss. 116, 110 So. 361; Cheatham v. State, 67 Miss. 335.
A change of venue is proper only when a case of prejudgment has been shown.
Long v. State, 133 Miss. 33, 96 So. 740.
We find where appellants were arraigned, where they asked for a change of venue, and where they asked for a special venire. We find no application for a continuance nor do we find anything which was called to the attention of the court calculated to cause it to pass upon this precise question.
Whether there was a severance or not can make no difference now.
Malone v. State, 77 Miss. 812, 26 So. 968.
During the voir dire examination of the jury, one Hammie Fortenberry was examined. At that time this juror stated that from what he had heard the defendants were guilty. Thereupon, the court reprimanded the juror, set him aside, and directed the balance of the venire to disregard and pay no attention to this answer of the prospective juror.
We think in a case of this kind appellant should have moved for a mistrial at the time the prospective juror made this statement instead of waiting until both the state and the defendant had gotten to the point where peremptory challenges had been exhausted as well as all challenges for cause.
We have always understood the law to be that events which lead up to and are clearly helpful to an understanding of the main transaction are admissible in evidence as a part of the res gestae. The evidence in this case clearly shows that appellants were engaged in hauling whiskey by night. There is evidence which tends to show that there were forty gallons or more of whiskey in the car when it left Columbia. It is true that there is no property in intoxicating liquor in the State of Mississippi, but nevertheless to a bootlegger or a rumrunner it has great value. This no doubt accounts for the fact that appellant, Franklin, got his Winchester rifle to carry with him and observed that there was enough ammunition in it to take care of any situation which might arise.
From the undisputed facts of this record, there was no element of manslaughter present in the case, unless it should be held that the officers were acting without probable cause. If there was probable cause for this attempted search, then there was no element of manslaughter, and it was proper for the court to refuse a manslaughter instruction. It is always proper to refuse this instruction, where on the evidence it is a question of murder or nothing.
Evans v. State (Miss.), 184 So. 66; Ricks v. State (Miss.), 151 So. 572; Winchester v. State, 163 Miss. 462, 142 So. 454.
In view of the decision of this court in Parks v. State, 180 Miss. 763, 178 So. 473, we think that probable cause must be determined from the testimony of Hance Polk. He testified that Barnes told him as a matter of fact that these parties were going to bring whiskey into Prentiss, told him what road they would travel, who would be in the car, and that he himself was coming along with them.
The information which was given was as definite and positive as the information given in Moore v. State, 138 Miss. 116, 103 So. 483; Parks v. State, 180 Miss. 763, 178 So. 473; Story v. City of Greenwood, 153 Miss. 755, 121 So. 481.
Where parties combine to commit crime the law imputes the guilt of each to all thus engaged, and pronounces all guilty of any crime committed by any in the execution of the common purpose, as one of its natural and probable consequences, even though none of the parties intended at the outset to do the particular thing constituting the crime.
Lusk v. State, 64 Miss. 845, 2 So. 256; Odom v. State, 172 Miss. 687, 161 So. 141; Woodward v. State, 166 Miss. 596, 143 So. 859; Fisher v. State, 150 Miss. 206, 116 So. 746; Carrol v. State (Miss.), 183 So. 703; Peden v. State, 61 Miss. 267; Sparks v. State, 113 Miss. 266, 74 So. 123.
Livingston Livingston, of Prentiss, for appellee.
The authorities cited by the counsel for appellants on the ground that the lower court erred in not continuing the case are not in point, and the authorities cited by said counsel to overthrow the motion for a change of venue are not in point. Hence, we submit that the learned judge who tried the case below did not err in his ruling, and certainly did not abuse his discretion in the matter of overruling the motion for a change of venue.
This court has held time and time again that except on a clear showing of abuse of trial court's discretion a case on appeal will not be reversed.
Dalton v. State, 141 Miss. 841, 105 So. 784; Regan v. State, 88 Miss. 422, 39 So. 1002; Bishop v. State, 62 Miss. 289; Stewart v. State, 50 Miss. 587.
The court will observe that both the marshal and the witness, Willie Barnes, were examined out of the hearing of the jury, and the court after hearing the evidence of these witnesses was convinced that the evidence was competent and showed probable cause.
The evidence clearly shows that the marshal of Prentiss had positive information that Doc Polk, Jerome Franklin, and Willie Barnes were coming into Prentiss that night on the detour road therein with a load of whiskey, and we submit that probable cause was proved beyond every reasonable doubt.
Parks v. State, 180 Miss. 763, 178 So. 473; Moore v. State, 138 Miss. 116, 103 So. 483; Story v. City of Greenwood, 153 Miss. 755, 121 So. 481; Lenoir v. State, 159 Miss. 697, 132 So. 325.
From the evidence, we submit that of the two, Jerome Franklin and Hilton Fortenberry, that Jerome Franklin is the more guilty of the two. It was Franklin's whiskey, the automobile was his, he transported the liquor to Prentiss, he owned the "Y," the dance hall, the place where the whiskey was loaded onto the automobile and where whiskey was kept and sold, it was his rifle, he went into his house, procured the rifle, came out of his house, handed the rifle to Hilton Fortenberry, Hilton Fortenberry accepted the rifle from the hands of Franklin and asked Franklin if he had any more cartridges, and thereupon Franklin replied, "there are sixteen cartridges in the rifle and it contains all the cartridges that is likely to be necessary for any occasion that may arise."
Pickett v. State, 139 Miss. 529, 104 So. 358.
A person may resist an unlawful arrest the same as any assault: Creighton v. Commonwealth, 84 Ky. 103, 4 Am. St. Rep. 193. But he can use no more force than is absolutely necessary to repel the assault constituting the attempt to arrest: Bad Elk v. U.S., 177 U.S. 529, 20 Sup. Ct. Rep. 729. He cannot go beyond the line of resistance proportioned to the character of the assault or he becomes a wrongdoer himself: State v. Oliver, 2 Houst. 606; Nobles v. State, 26 Ala. 31, 62 Am. Dec. 711. A person cannot use excessive force to prevent the arrest: Commonwealth v. Wright, 158 Mass. 149, 35 Am. St. Rep. 475, 33 N.E. 82; State v. Belk, 76 N.C. 10. It has been said that a person should resort to all peaceable means of avoiding arrest before he can use force: People v. Carlton, 115 N.Y. 618, 22 N.E. 257.
State v. Evans, 84 A.S.R. 700; Walker v. State, 189 So. 804; Bergman v. State, 160 Miss. 65, 133 So. 208; Williams v. State, 120 Miss. 604, 82 So. 318; Williams v. State, 122 Miss. 151, 84 So. 8; Williams v. State, 127 Miss. 851, 90 So. 705; Fletcher v. State, 129 Miss. 207, 91 So. 338.
Argued orally by T.B. Davis and E.J. Currie, for appellant, Jerome Franklin, and G.M. Milloy, for appellant, Hilton Fortenberry, and by W.D. Conn, Jr., and W.H. Livingston, for appellee.
On January 4, 1940, an indictment was filed by the Grand Jury of Jefferson Davis County charging Jerome Franklin, Hilton, alias "Sacks" Fortenberry, and Fred Polk, alias "Dock" Polk, with murder in the killing of J.C. Sanford.
Franklin and Fortenberry were placed on trial without a severance as to Fred Polk who had not been arrested at the time of the trial.
On January 9, 1940, the court overruled appellants' motion for a change of venue, and on the day sustained appellants' motion for a special venire, and directed that eighty-five persons be summoned to serve. On January 12, appellants renewed their motion for a change of venue and on that day the court again overruled that motion and the cause proceeded to trial. On the following day the jury returned a verdict of guilty as charged as to both appellants, and the judgment of the court ordered them to be executed. Subsequently at that term of court their motion for a new trial was overruled.
In this court there are presented twenty-one assignments of error, but we shall consider only those errors which to us seem to be the strongest and to evoke an opinion from us.
(1) It is insisted that this case should be reversed because the court erred in not granting appellants a change of venue.
The appellants rested their motion on their affidavits and those of two other persons that they could not secure a fair and impartial trial because of the prejudgment of the case by the citizens of that county. These affidavits made out a prima facie case for the appellants for a change of venue.
The state then offered thirteen witnesses in opposition to the motion, including the sheriff and the district attorney. The substance of their evidence was that Sanford, the deceased, was an exceedingly popular man, well known among the people of the county; that the homicide had caused universal grief and shock, but that the appellants were unknown negroes and there did not seem to be indignation against anyone except guilty parties. They thought appellants could and would receive a fair and impartial trial, and the witnesses seemed to have a thorough appreciation of what constituted a fair and impartial trial.
These witnesses came from the several supervisors' districts of the county. The local paper had published a very earnest appeal to the citizens of the county for law enforcement and especially as to intoxicating liquor laws. This paper has a large circulation in that county, but the witnesses regarded the article as the opinion of the editor and did not enter into great detail as to the fact of the homicide.
One or more newspapers published at Hattiesburg or Jackson had published a statement that a mass meeting had been held in the county at which it was decided not to mob the appellants, but let the law take its course. No one of the witnesses had heard of such a mass meeting and the sheriff and district attorney were positive that no such meeting had occurred. Members of the state guard were present on the order of the Governor. The sheriff said they were there at court because he had heard of some threat as coming from Simpson, an adjoining county, but there had been no disorder or inflammatory action of the people of Jefferson Davis County.
The voir dire examination of the special venire and the jurors who tried the case is not in this record. It was agreed, however, in the record that fifty-two of the special veniremen were examined, thirteen of whom disqualified themselves because of their prejudgment of the case. The state exercised four peremptory challenges while the appellants exhausted their twelve challenges and were allowed an additional challenge as to a juror whom they had challenged for cause and that challenge overruled by the court.
We cannot say that the court erred in denying a change of venue on the evidence which controverts and contradicts the prima facie case made by the appellants. On this conflict in the evidence the trial judge had a most decided advantage of us. He saw the demeanor of the veniremen, heard the answers. This important part of this trial is not here in the record, that is, the voir dire examination of the veniremen and jurors who finally tried the case.
We recently took occasion in the case of Garrett v. State, 193 So. 452, 458, to set out painstakingly what constituted a prejudgment of a case, and in that case we said: "Inasmuch as the record does not disclose who served on the jury and the answers to questions of the judge, we must assume that a proper jury was selected. Neither the court nor counsel should accept a nod or a shake of the head in lieu of an answer to a question. In such cases, this Court cannot reverse the decision of the judge but must accept it, on the theory that he saw things not recorded in the record."
In the case at bar we are bound to assume that the answer of the jurors which is not before us, which the judge heard, demonstrated that there was no prejudgment of this cause. We cannot say that because fifty-two persons were examined, and thirteen disqualified themselves because of their fixed opinions, that this demonstrates a prejudgment by the people of that county. Such a criterion amounts to practically nothing. Likewise as to challenges exercised. The case cited above is infinitely stronger for a change of venue than the case before us here.
An application for a change of venue is addressed to the sound discretion of the trial judge, and his ruling thereon will not be reversed on appeal unless it clearly appears that his ruling thereon is against the weight of the evidence, and it must appear that the trial judge has abused such discretion, and in passing upon the action of the trial judge this court will look to the completed trial including the voir dire examination of the jurors to ascertain if the defendants have received a fair and impartial trial. Mackie v. State, 138 Miss. 740, 103 So. 379; Wexler v. State, 167 Miss. 464, 142 So. 501; Cummins v. State, 144 Miss. 634, 110 So. 206; Fischer v. State. 145 Miss. 116, 110 So. 361; Richardson v. State, 153 Miss. 654, 121 So. 284; Myers v. State, 167 Miss. 76, 147 So. 308.
The completed trial as revealed to us by this record discloses no abuse of his sound discretion by the trial judge in overruling the motion for a change of venue.
(2) There is no chance to reverse this case because appellants urge upon us that the indictment and trial of appellant was had so promptly after the homicide and as they say "exceeded the speed limit." It was not intimated in the court below that appellants desired a continuance or any delay of the case. Franklin was represented by his own selected counsel and Fortenberry by two members of the bar appointed by the court. Both appellants had the benefit of able counsel, who left no stone unturned in their defense. No application for delay or continuance was made to the court and there appears to us no sound reason for the court to have acted herein on its own volition.
(3) It is insisted that the court erred in its refusal to grant an instruction requested by the appellants limiting their conviction to no higher crime than manslaughter, thereby acquitting the appellants of murder. This assignment is based upon the theory of appellants, that the attempted search or attempted arrest was made by the officers of the law without a search warrant and was without probable cause.
On this point we state the facts as to probable cause, which we deem essential.
On January 1, 1940, and for two years prior thereto, Willie Barnes, a negro, was employed by the city as a laborer in its electric light department. Mr. Hance Polk was the marshal of the municipality of Prentiss, and Barnes had assisted Polk in securing evidence in the detection of violation of the prohibition laws on occasions. On this date Barnes, having gone to Columbia, Mississippi, to see his girl and be there, met Dock Polk at the place of business of Franklin. Dock Polk told Barnes that he and Franklin were going to carry a load of whisky to Prentiss and would leave Columbia about sundown with a load from the "Y," Franklin's place of business. Polk then and there exhibited a container of whisky to Barnes, tried to sell Barnes some of it, and invited the latter to accompany him, Dock Polk, and Franklin on the trip to Prentiss, to which Barnes assented.
Barnes went to the telephone exchange, called the marshal of Prentiss, Hance Polk, and told Mr. Polk that Franklin and Dock Polk would be at the "detour in Prentiss with a load of liquor about dark" and that he, Barnes, would accompany them. In his examination in chief before the jury, officer Polk testified that Barnes told him that they, Franklin, Barnes and Polk were coming in a car. The officer testified that he knew the occupants of the car and they knew him. That he knew Franklin's car, and had information that Franklin was handling liquor.
Barnes joined the party at the time to leave. Franklin drove his car. In containers they had forty gallons of whisky, 10 gallons in the rear of the four-door sedan where Barnes and Fortenberry were seated, Franklin on the front seat with Dock Polk seated to his right. After the car of rumrunners left the "Y," they drove a short distance to Franklin's house, where he left the car, entered his dwelling, and came out with a pair of "coveralls" for himself and a thirty-two Winchester rifle, which he handed to appellant, Fortenberry. Whereupon Sacks Fortenberry asked Franklin: "Have you got any more cartridges?" And Franklin replied: "There's sixteen in the rifle. There's enough in there if anything should happen to occur."
The party of rumrunners did not reach Prentiss by dark because they drove to various points between Columbia, Mississippi, and Prentiss, and were delayed by sales and deliveries of whisky, but did reach the detour in Prentiss about ten o'clock that night.
Returning to the action of the marshal — after Barnes communicated over the phone as to the load of whisky, the marshal testified that he did not have time, according to that information, to procure a search warrant. On that day the sheriff and other officials had been inducted into office for the several terms.
The marshal reported to the sheriff's office, and A.H. Polk, the ex-sheriff who had retired that day, J.C. Sanford, the constable of that district, Fred Burrow, and the marshal proceeded to this detour, which was about eight hundred feet in length. The officers were in two cars. They parked the cars in the detour back from the opening so as to block it, a driver remaining in each car. When the car in which the rumrunners were driving came into the detour, the marshal and Mr. Sanford went rapidly toward it, in the glare of its car lights, waving flashlights as a signal for them to halt. They ignored the flashlights and drove to the barricade of cars. Franklin, the driver of the whisky car, then proceeded to back, and backed into a ditch, and as he did so, Sanford, the deceased, walked in front of the whisky car in the light over to the other side, Polk remaining on the left-hand side. Thereupon someone in the car said "That's the law" and Sanford replied "This is the law, stop" or halt. At that moment a number of shots were fired from the whisky car, which proceeded to back, and the marshal ran after the car, but when a bullet came near he dropped down in the bushes on the side of the road. After the car was gone it was discovered that Sanford was lying there dead with three bullet wounds in his chest which had caused his death. Barnes, who was in the car, testified that Fortenberry did the shooting with a rifle. One shot was discharged through the windshield and the others through the window-glass of the door on his side. Barnes testified that before any shooting he called out, "That's the law," and he heard one of the officers say, "It is the law, stop." Dock Polk called out "Dont' shoot." One of the bullet wounds in the chest of the deceased was perceptibly larger than the other two, but he accounted for that by the statement that two bullets might have gone in the same hole.
The appellants drove to Columbia according to their statement, whereupon Fortenberry took the rifle and the car, and, according to his statement made to the officers, he threw the rifle into Lake Pontchartrain, proceeded to New Orleans, and from thence to Texas where he was arrested. Dock Polk had never been arrested at the time of the trial. In his confession, Fortenberry's claim was that he shot only one time and that he was aroused by someone's shooting at them. All the testimony in this record from those present at the time of the homicide was that no shots were fired at that time except from the whisky car, but that the marshal, after the rumrunning car had gotten away from the immediate scene of the homicide, discharged his pistol, and did by his shot deflate one of the rear tires.
(1) There is no merit whatever in the contention that the statement made by Barnes over the telephone to the marshal was hearsay testimony as shown by this record. It was a clear cut statement of fact upon which the officer and his associates acted on the night of this tragedy.
(2) It is insisted that by the information given to the officer from Barnes it did not appear what character of instrumentality was being used in transporting the whiskey on that night, and therefore the description under Section 23, Constitution of 1890, was wholly insufficient, and even if Barnes had told Polk that the appellants were coming in a car that such description would not be sufficient to justify the arrest and search of the car on probable cause.
The first answer is that the record as detailed in this opinion showed that the marshal testified before the jury on direct examination that Barnes informed him that the parties would come to Prentiss with a load of whisky in a car, and that he, Barnes, would be with them. In the second place it is hard to conceive of a more accurate description of the particular thing to be searched than is disclosed by this record. Polk, the marshal, knew the defendant, Franklin, and he certainly knew Barnes well. Barnes told him that he would be with the appellants and the load of whiskey. If he had told him that he would be in a Plymouth, four-door Sedan, car, with a designated number and a designated tag, the car would not have been as easy of identification in the night-time. When he was informed by Barnes that the latter would be in the car — that was equivalent to a flag so far as the information to the marshal was concerned, or equivalent to a voice saying in thunder tones: "This is the car loaded with whisky." If the car in question had been described in an affidavit as a car driven from Columbia, Mississippi, to the particular detour in the town of Prentiss, and the occupants thereof would be Polk, Franklin, and Barnes, it would have complied in all respects with the law as announced in the leading case of Moore v. State, 138 Miss. 116, 103 So. 483. Also see Story v. City of Greenwood, 153 Miss. 755, 121 So. 481; and Parks v. State, 180 Miss. 763, 178 So. 473. We conclude that the description of the instrumentality used in the unlawful transportation of whisky on the occasion was adequate and sufficient and was just as informative to the officer as if the tag number and make of the car had been given him, if not more complete. The evidence was not incompetent because of want of probable cause for any reason.
There is another reason why the instruction as to manslaughter was not proper in this case. When Fortenberry discharged this rifle, the evidence discloses without dispute that no one of the parties engaged in the arrest or search made any demonstration of any kind to harm the appellants with any deadly weapon or otherwise. The officers simply barricaded the road and called on the driver of the car to halt, which was ignored by the appellants. Fortenberry, as far as this record shows, used the most deadly possible force, situated as he was, upon these officers without caring whether the arrest and search was lawful or unlawful.
This court said in the case of Walker v. State, 189 So. 804, 806, that "Where the arrest is unlawful the person arrested has the right, under the law, to use the necessary force to free himself." The facts in the record show that the slaying of Sanford was wholly unnecessary, unprovoked and unwarranted.
It is urged on behalf of the appellant, Franklin, that under the circumstances of this case he cannot be held responsible for the act of Fortenberry in slaying Sanford. He argues that there was no evidence that he entered into any conspiracy with Fortenberry or anybody else, or that he was responsible for the act of Fortenberry because the latter acted upon his own unexpected volition. We are of opinion that when the occupants of this whisky car started upon their mission on that night, they immediately began and continued to act together in the commission of a crime. It is unlawful in this state to transport or have in possession intoxicating liquor. They had forty gallons in the car and had been selling and delivering whisky on that night. When Franklin handed Fortenberry, one of the occupants of the car, a thirty-two Winchester rifle, and when Fortenberry wanted more cartridges, he replied: "There's sixteen in the rifle. There's enough in there if anything should happen to occur." They did not have to sit down and have a long conversation for Fortenberry and Franklin to understand each other. Franklin was the owner of the car and the part owner of the whisky. He was driving the car in the commission of a crime. He procured the gun and put it into the hands of his gunman, Fortenberry, with the assurance that sixteen cartridges would be sufficient to halt any man who undertook to oppose them in the carrying on of their unlawful crime, and, at the moment when the officers had called on them to halt and informed them it was the law, Franklin began driving backward while Fortenberry began shooting. They were joint actors, Franklin and Fortenberry, in the commission of the crime and each is responsible for the act of the other. This is a clearer case of acting in concert for a conspiracy than usually comes to the attention of this court in cases of this character.
The rule in this state is found in the case of Lusk v. State, 64 Miss. 845, 2 So. 256, 257, in this language: "Where parties combine to commit crime, the law imputes the guilt of each to all thus engaged, and pronounces all guilty of any crime committed by any, in the execution of the common purpose, as one of its natural and probable consequences, even though none of the parties intended at the outset to do the particular thing constituting the crime. If the act is not the natural and probable outcome of the common design, but is the independant act of some of the party, conceived of by them, and outside of the common purpose, those not participating in it are not responsible for this independent act."
In the above case several parties joined together in committing a trespass upon a home, and after driving the occupants and owners therefrom, the home was burned by some one of the parties. Lusk was held guilty although he was not shown to have conspired to burn the home. This same doctrine has been approved by this court in Fisher v. State, 150 Miss. 206, 116 So. 746; Woodward v. State, 166 Miss. 596, 143 So. 859; Odom v. State, 172 Miss. 687, 161 So. 141; and Carrol v. State, 183 Miss. 1, 183 So. 703.
From the bootlegger's standpoint there was considerable value in this whisky. Franklin had more interest in getting it away from confiscation by the officers or someone who might undertake to seize it. Therefore, he was more interested in its protection, and it was he who first conceived the idea of protecting it with a gun, a thirty-two Winchester rifle, equipped with cartridges designed to produce death. In his confession he undertook to say that he was delivering the rifle to another person, but it could hardly be said that it was necessary to have sixteen cartridges along in case anything happened to occur.
The officers in this case acted upon probable cause. The crime was not limited to manslaughter. Without conflict in this evidence the appellants were guilty of an unprovoked murder, and there was no error in refusing a manslaughter instruction.
We are of opinion that there was no reversible error in the instructions of the court, nor in the argument of the district attorney before the jury, nor was the appellant entitled to a mistrial because the venireman said in the presence of the others upon his trial that he thought they were guilty, nor in any of the other points assigned as error in this case. We think the verdict of the jury was proper in this case. In fact, the evidence was not in dispute.
Friday, July 19th, is fixed as the date of execution of the appellants.
Affirmed.