Opinion
No. 39032.
April 5, 1954.
1. Weapons — aiming and shooting pistol — evidence — justified conviction.
In prosecution of defendant for aiming a pistol at another not in self-defense and not in lawful discharge of duty and shooting victim, evidence sustained a conviction. Sec. 2013, Code 1942.
2. Criminal law — change of venue — denial of — no abuse of discretion.
The granting of a change of venue is largely in the discretion of the trial judge, and the record in this cause did not establish any abuse of such discretion in denying defendant's motion for a change of venue on the ground of public prejudice against the defendant.
3. Weapons — evidence — self-defense — lawful discharge of official duty.
In such case, evidence established that defendant in discharging pistol was not acting in self-defense nor in lawful discharge of official duty. Sec. 2013, Code 1942.
Headnotes as approved by Gillespie, J.
APPEAL from the circuit court of Montgomery County; HENRY LEE RODGERS, Judge.
Robertson Horton, Winona, for appellant.
I. The Court erred in overruling the defense's motion for a change of venue.
II. The record clearly shows that the jury panel was present in Court when three indictments were returned against the defendant and that certain pictures, highly prejudicial to the defendant, had been publicly displayed in the Sheriff's office for a number of days prior to the trial. This proof militates against the possibility of the accused having received a fair and impartial trial, and the fact that the jury deliberated only ten minutes is further proof that the jurors, no matter how sincere they might have been in their belief of their ability to judge fairly and impartially, had strong preconceived notions of the guilt of the accused at the time of trial. Gaddis v. State, 207 Miss. 508, 42 So.2d 724; Owens v. State, 82 Miss. 31, 33 So. 722; Seals v. State, 208 Miss. 236, 44 So.2d 61.
III. The State, having indicted the defendant under Section 2013 of the Code of Mississippi of 1942, totally failed to introduce any proof whatsoever to negative the fact that defendant was acting in the "lawful discharge of official duty" at the time. This was never, at any time, undertaken by the State. The established rule of law in this State is that the State must prove every element of its case. It is settled law that an indictment drawn under a statute which includes exceptions and provisos therein, must negative all of the exceptions and provisos in order to be valid. Bennett v. State, 100 Miss. 684, 56 So.2d 777; Dawsey v. State, 136 Miss. 18, 100 So. 526; Frazier v. State, 141 Miss. 18, 106 So. 443; Kline v. State, 44 Miss. 317; Ladnier v. State, 155 Miss. 348, 124 So. 432; Powe v. State, 176 Miss. 455, 169 So. 763; Smith v. State, 112 Miss. 802, 73 So. 793; State v. Craft, 1 Miss. (Walker) 409; State v. Speaks, 132 Miss. 159, 96 So. 176; White v. State, 183 Miss. 351, 184 So. 303; 14 R.C.L., Indictments Information, Sec. 34 p. 189.
IV. In the absence of any specific provisions making the exceptions and provisos in the statutes defining a crime and matters of affirmative defense, it is essential that the State negative such exceptions, not only in the indictment, but also by proof. Bennett v. State, supra; Kline v. State, supra; Ladnier v. State, supra; State v. Craft, supra; White v. State, supra.
V. The State, in the instant case, undertook to prove that the act was not in necessary self-defense, but ignored completely the exception of lawful discharge of official duty. Page v. State, 160 Miss. 302, 133 So. 216.
VI. The rule is that the burden is on the State to prove every essential element of the crime charged and the State must convict on testimony showing the guilt, not on the failure of the defendant to show his innocence.
VII. Mere allegation in the indictment does not relieve the State of burden of proving such allegation and failure to do so is fatal.
VIII. The Court, in the present case, in view of the failure of the State to introduce any proof negativing the fact that defendant was acting in the lawful discharge of official duty, should have sustained the motion of the defense for a peremptory instruction at the close of the State's case.
IX. In view of the failure of the State to meet the burden of proving that defendant was not acting in the lawful discharge of official duty, the Court erred in granting certain instructions for the State. Gulf, Mobile Ohio R.R. Co. v. Smith, 210 Miss. 768, 50 So.2d 898; Jones v. Dixie Greyhound Lines, Inc., 211 Miss. 34, 50 So.2d 902; New Orleans N.E.R.R. Co. v. Williams, 96 Miss. 373, 53 So. 619.
X. In view of the complete failure of the State to introduce any evidence relating to the official capacity of the defendant, the verdict of the jury is of necessity against the weight of the law and the evidence. The testimony before the jury and on which its verdict was based, was not testimony of a complete crime. An essential element had not been touched on and, therefore, the jury could not have found the defendant guilty beyond a reasonable doubt under the law and the evidence.
XI. In this state of the record it was error for the Court to overrule the motion of the defense for a new trial. The State had totally failed to meet the burden of proving every essential element of its case. It had totally failed to introduce any evidence whatsoever to negative one essential element of the offense, which it must have done in order to convict the defendant.
Joe T. Patterson, Asst. Atty. Gen., Jackson, for appellee.
I. The proof heard by the trial court on appellant's motion for a change of venue clearly shows that the trial judge properly overruled appellant's motion for a change of venue. Musselwhite v. State, 212 Miss. 526, 54 So.2d 911; Wheeler v. State, 219 Miss. 129, 63 So.2d 517.
II. Appellant also contends that the jury panel was present in the courtroom when three indictments were returned against the defendant, and the defendant was arraigned on said charges. The jurors, on their voir dire examination, were questioned with reference to this, and their responses to such questions clearly show that they paid very little attention to the fact that the appellant was arraigned, some of them stating they did not even notice the occurrence, and all of them stating that it would have no bearing whatsoever on their verdict. This incident was a routine occurrence in all circuit courts, and we do not think that it is encumbent upon a trial judge to exclude jury panels and prospective jurors from the courtroom during arraignment of a defendant indicted in said court. Huggins v. State, 209 Miss. 552, 47 So.2d 852.
Appellant, G.L. Golden, was indicted under Code Section 2013 for aiming a pistol, etc., at Elliott Clark, not in self defense and not in the lawful discharge of official duty, and of shooting Clark. He was convicted by the jury. (Hn 1) The evidence was overwhelmingly sufficient.
Appellant assigns as error the refusal of the lower court to sustain a motion for change of venue. Three indictments were returned against appellant at the term of court when he was tried. The jurors were in the court room when appellant was arraigned on all three indictments and heard them read. Pictures of appellant's wife, showing burns alleged in one of the indictments as having been inflicted by appellant on his wife with a red hot poker, hung in the sheriff's office in public view for about two weeks prior to the trial. (Hn 2) The granting of a change of venue is a matter largely in the discretion of the trial judge. It is not shown that there was any abuse of this discretion in this case. Musselwhite v. State, 212 Miss. 526, 54 So.2d 911; Brooks v. State (Miss.), 52 So.2d 616.
The other assignments of error all hinge on the contention that the State failed to prove that appellant was not acting in the lawful discharge of official duty, one of the engrafted exceptions to Section 2013. While it is true that no witness was asked the direct question whether appellant was acting in discharge of official duty, the jury was fully warranted in finding that he was not so acting. The proof showed that appellant and six others were in a house at a late hour on Saturday night. Drinking and gambling were the main attractions. Appellant admitted he was drinking but was not actively engaged in gambling when the trouble started. The shooting grew out of an argument. The argument had its genesis in the gambling. The appellant testified, and his whole defense was based on self-defense, which the jury rejected. Appellant was quoted by one of the State's witnesses as saying, just before the shooting, "Get back and sit down; they are going to gamble down there and nobody is leaving out of this house until every penny is put back down on the floor." (Hn 3) It was overwhelmingly evident that appellant was not discharging a lawful duty.
Affirmed.
McGehee, C.J., and Lee, Arrington, and Ethridge, JJ., concur.