Opinion
No. 33233.
November 7, 1938.
1. CRIMINAL LAW.
In prosecution for murder, wherein indictment was returned at September term, but application for continuance was filed on the ensuing February 7, overruling such application and setting date for trial on February 17 was not error, as against contention that the ten additional days gave insufficient time for preparation (Code 1930, sec. 1275).
2. HOMICIDE.
In prosecution for murder committed after a dance, evidence of statements by defendant and his brother-in-law during the dance, showing hostility of both towards deceased, was admissible as tending to throw light on the subsequent difficulty.
3. HOMICIDE.
In prosecution for murder, admission of evidence concerning allegedly immaterial and inconsequential previous occurrences was not prejudicial.
4. CRIMINAL LAW.
In prosecution for murder, omission of the word "knowingly" from the phrase "willfully and corruptly swore falsely," in an instruction on disregarding testimony of defense witnesses, was not error.
In the phrase "willfully and corruptly swore falsely," the words "willfully and corruptly" mean that the testimony was given with an evil purpose, intentionally and corruptly, and therefore "knowingly."
5. HOMICIDE.
In prosecution for murder, evidence, indicating that defendant was the aggressor in a difficulty after a dance and shot and killed deceased when they were several steps apart and when defendant was in no real or apparent danger, held to authorize conviction of manslaughter.
APPEAL from the circuit court of Neshoba county; HON. D.M. ANDERSON, Judge.
Dees Stribling, of Philadelphia, and Henry Lee Rodgers, of Louisville, for appellant.
The court erred in overruling appellant's application for continuance. On the first day of the February term, 1938, the court appointed Dees Stribling and Henry L. Rodgers to represent the defendant, Cecil McClellan, at which time they prepared a motion setting up the fact that McClellan had asked for attorneys in vacation and that the case was a serious case and that out of approximately twelve witnesses summoned only three answered to their names and asked time of the court in which to make due preparation of the defense for McClellan. Attorneys who were appointed and McClellan joined in this application. The court promptly overruled this motion and set the case for trial at that term of court. There was no way to refuse the appointment made by the court and, of course, we promptly did all within our power as attorneys to be ready for the trial at the time when said case was set for hearing, but it was humanly impossible to be able to reach the testimony which, as I am firmly convinced, was a framed case by relatives of the deceased Quinn; nevertheless, we were forced to go to trial on the day when this case was set.
The Legislature has endeavored to make it plain that the defendant shall be entitled to advice of his counsel before he is required to even plead to the indictment.
Section 1262, Code of 1930, as amended by Laws 1934, page 574; Robinson v. State, 173 So. 451.
In the case at bar we certainly made plain to the court that this case could not be tried without proper investigation and since the court would not appoint attorneys in vacation the defense should not have been required to have gone to trial until such time after his attorneys were appointed as to give them time in which to meet the overwhelming "frame-up of family witnesses" as it had become evident that the state had accepted from the Quinns and their friend, Mr. Ritchey.
Powell v. State, 287 U.S. 45, 77 L.Ed. 158, 53 S.Ct. 55, 84 A.L.R. 527; Mitchell v. State, 176 So. 743; John v. State, 158 So. 339; 84 A.L.R. 544.
We respectfully submit that it is the intention of the Legislature that when a man is indicted or in jail charged with a capital crime that the court will in vacation appoint attorneys to immediately go into the preparation of the defendant's case for trial at the next term of the court and whereas in the case at bar application is duly made and the courts pass said application lightly by, this court should require that due time be given for the preparation of the case after attorneys have been selected and guaranteed their expenses for the preparation of said case.
State v. Collins, 29 So. 180.
The court erred in permitting the introduction of testimony with reference to statements made by co-defendants out of the hearing of the defendant and permitting statements alleged to have been made by defendant to Mose Alford, neither of which had any bearing on the issue, but were prejudicial to the defendant.
Stribling v. State, 86 So. 897; Rich v. State, 86 So. 770; Huggins v. State, 60 So. 209.
With regard to the State's third instruction, this instruction has been discussed in the records of this court a great many times. In the case of Wood v. State, 165 So. 124, Judge GRIFFITH pointed out that it had been many times reversed and directed attention to the case of McClure v. State, 128 So. 764, and the case of Farley v. Smith, 130 So. 487, and the case of D'Antoni v. Albriton, 126 So. 836, wherein the courts have always held this instruction must contain the full equivalent that false swearing was wilful, knowingly and corruptly done.
We direct the court's attention to the fact that the instruction leaves out the word "knowingly" and therefore, as Judge GRIFFITH says in the Wood case: "That verdict and judgment would be reversed for that error alone."
W.D. Conn, Jr., Assistant Attorney-General, for the State.
We are familiar with the proposition that the appointment of counsel should be made at such time and under such circumstances as that the attorneys so appointed may have reasonable time for the preparation for trial. All of the authorities that we know anything about adhere to this general rule. The only question that arises is whether or not reasonable time has been given.
In Goins v. State, 155 Miss. 662, 124 So. 785, the court said that applications for continuance based on this ground are matters that are largely in the discretion of the trial court and that a manifest abuse of that discretion would have to be shown before this court would interfere with the trial court's ruling.
We submit that the court acted well within its discretionary power in giving appointed counsel ten days within which to prepare for trial and that there has been no showing of an abuse of that discretion, certainly no manifest abuse of that discretion and this court should not interfere with the judgment of the trial court upon this ground.
As to statements made by co-defendants, it will be remembered that a row was started between Jack Quinn and some of the guests at the dance. Before it was over appellant had butted into this row and the feelings of both appellant and deceased were aroused initially in this row. The killing may be said to have been a culmination of the feelings which were aroused at that time. We submit that it was well enough to show how the fuss started in order to show appellant's entry into it as all of this testimony tends to shed light upon the subsequent events. As said in Cartee v. State, 162 Miss. 263, 139 So. 618, events leading up to and clearly helpful to an understanding of the main transactions are admissible in evidence and that this rule should be applied liberally in the interest of justice, with some discretion in the trial judge. This same rule was applied in McCormick v. State, 159 Miss. 610, 132 So. 757; Schrader v. State, 84 Miss. 593, 36 So. 385; Spivey v. State, 58 Miss. 858, and see particularly the Schrader case, supra. This fuss was the beginning of the whole difficulty and it was proper for the jury to have the benefit of it in passing upon the evidence concerning the main transaction. On this theory, we think it was clearly admissible.
As to the State instructions, appellant concedes that neither of these instructions would constitute reversible error, even if error at all, except the so-called falsus in uno falsus in omnibus instruction. This instruction contains all the necessary elements required to be included in it and there was no error in the giving of it.
McClure v. State, 157 Miss. 800, 128 So. 764; Wood v. State, 165 So. 123.
Argued orally by Henry Lee Rodgers, for appellant, and by W.D. Conn, Jr., for the State.
Appellant was jointly indicted, in the Circuit Court of Neshoba County, with Jack Oglesby and Woodrow Hardy, for the murder of Kirby Quinn. He was tried separately, convicted of manslaughter and sentenced to serve a term of ten years in the state penitentiary. From this judgment and sentence of the court he appeals, and assigns as error: (1) The action of the court below in overruling his application for a continuance of the case; (2) the admission of certain statements made by a co-defendant, out of the hearing of the appellant, and also statements made by the appellant to a third party, shortly prior to the difficulty in which the killing occurred; and (3) the giving of an instruction for the State to the effect that if the jury believed that any witness had "wilfully and corruptly sworn falsely to any material matter in the case" the testimony of such witness might be disregarded altogether. A number of other alleged errors are assigned but they are without sufficient merit to require any response thereto.
The assignments of error above enumerated will be considered in their order.
The indictment was returned at the September, 1937, term, but the case was not tried until the following February. In the meantime, the appellant wrote to the circuit judge of the district, in vacation, stating his inability to pay the attorneys whom he had chosen to represent him and requested the court to then appoint said attorneys as authorized by statute, in vacation, in order that they might prepare his case for trial. In his letter he stated that the two attorneys referred to "have been faithful in their preparation of the case and . . . are willing to proceed with the case provided the court will appoint them to make my defense." At the following term of court these attorneys were appointed and on February 7, 1938, filed the application for a continuance, stating among other things that although they had done a great deal of work on the case they did not have sufficient time to interview the necessary witnesses and get ready for trial. The court thereupon set the case for trial on February 17th and a special venire was summoned to appear on that date, when the case proceeded to trial without any further showing having been made that the attorneys had in fact been unable in the meantime to prepare for trial. It was not shown that any material or other witness was unavailable, and the only reason here argued as to why the continuance should have been granted was the fact that the ten additional days intervening between the setting of the case and the date of trial was an insufficient time to interview witnesses and prepare for the defense of the case. A mere statement of the proposition is a sufficient answer to this assignment of error. Section 1275 of the Code of 1930 provides that "all indictments shall be tried at the first term, unless good cause be shown for a continuance." To hold that ten days is insufficient time to prepare a criminal case for trial where it is not shown that the witnesses are unavailable would mean that a capital case could rarely ever be tried at the term during which an indictment is returned, and especially where there are civil cases to be heard during the term either before or subsequent to the trial of the docket of criminal cases. A compliance with the statute referred to would make for a more efficient administration of justice. The failure to comply therewith is all too frequent.
It is next urged that the court below erred in permitting the State to show that one of the co-defendants, Jack Oglesby, had abused the deceased at about the time a dance had "broken up," on account of the deceased's failure or refusal to play another piece of music, and also in admitting a statement of the appellant to one Mose Alford because Alford had intervened to make Jack Oglesby leave the room. Oglesby is a brother-in-law of the appellant and was shown to have been drunk or drinking at the time. The statements complained of had a tendency to show that the appellant was taking sides with Oglesby to the extent above mentioned, and also tended to shed light upon the subsequent events transpiring on the road within a few minutes after the dance was over when the deceased was killed by the appellant in the presence of Oglesby and others. We think that the testimony was admissible under the cases of Cartee v. State, 162 Miss. 263, 139 So. 618; McCormick v. State, 159 Miss. 610, 132 So. 757; Schrader v. State, 84 Miss. 593, 36 So. 385; and Spivey v. State, 58 Miss. 858. Moreover, if the jury was not entitled to have the benefit of the previous occurrences in passing on the testimony as to who was the aggressor in the main difficulty as being statements tending to throw some light thereon, they were of no consequence anyway, and could not have been prejudicial to the appellant.
As to the error complained of in the instruction referred to, wherein the word knowingly was omitted in the phrase "wilfully and corruptly swore falsely," we are of the opinion that the words "wilfully and corruptly" mean that the testimony was given with an evil purpose; that it was intentionally and corruptly given; and that it was therefore "knowingly" done, since one cannot "wilfully and corruptly" do a thing without knowingly doing it. Then too, it was expressly held in Turner v. State, 95 Miss. 879, 50 So. 629, that "it is not thinkable that a man can willfully and corruptly swear falsely without also `knowingly' swearing falsely;" and it was stated in McClure v. State, 157 Miss. 800, 128 So. 764, that the words "wilfully" and "falsely" were equivalent to "knowingly" and "falsely." Therefore, the words used in the instruction in the present case are equivalent to "wilfully, knowingly and corruptly."
As to the sufficiency of the proof to sustain the conviction, there was ample evidence to warrant the jury in finding that the appellant was the aggressor in the difficulty and that he shot and killed the deceased when they were several steps apart, and at a time when he was in no danger, either real or apparent, at the hands of the decesed.
The judgment and sentence of the court below must therefore be affirmed.
Affirmed.