Opinion
No. 36116.
June 10, 1946.
1. CRIMINAL LAW.
Where application for change of venue in the form of joint affidavit by two lawyers appointed to defend accused showed that accused was incapable of making affidavit for himself, application was sufficient though not sworn to by the accused (Code 1942, secs. 1661, 2508).
2. CRIMINAL LAW.
Where affidavit for a change of venue is sufficient under the statute, the affidavit makes a prima facie showing which must be met by the State by proof (Code 1942, sec. 2508).
3. CRIMINAL LAW.
State's dictation into the record of denial that accused could not get a fair and impartial trial, without proof in support of the denial, furnished no basis for refusing application for change of venue (Code 1942, sec. 2508).
4. CRIMINAL LAW.
Affidavit for change of venue alleging that defendant had been indicted on a charge of rape of a white female, that defendant had been brought into court room by an armed guard, believed to be a part of the State Militia, that defendant had been removed by the State Militia to another city, and that public feeling was such that there should be a change of venue, stated a prima facie case for a change of venue (Code 1942, sec. 2508).
5. CRIMINAL LAW.
Where affidavit presented a prima facie showing for a change of venue, and also requested an inquiry as to the sanity of accused, and State offered no proof in support of its denial dictated into the record that accused could not get a fair and impartial trial, the inquiry as to sanity of accused should have been postponed until issue of change of venue had been heard and determined (Code 1942, sec. 2508).
APPEAL from the circuit court of Jones county, HON. F. BURKITT COLLINS, Judge.
Jackson Young, of Jackson, for appellant.
Appellant was denied his constitutional right to effective representation by counsel in defending against a capital charge, contrary to Amendment Fourteen and Six to the United States Constitution.
Carter v. State, 198 Miss. 523, 21 So.2d 404; Adams v. United States ex rel. McCann, 317 U.S. 269; Brown v. Mississippi, 297 U.S. 278; Boykin v. Huff, 121 F.2d 865; Douglas v. Jeanette, 319 U.S. 157, 87 L.Ed. 1324; Hawk v. Olson, 66 S.Ct. 116, 119, 90 L.Ed. 67; House v. Mayo, 324 U.S. 485; Holiday v. Johnston, 313 U.S. 342; Glasser v. United States, 315 U.S. 60; Maluiski v. People, 89 L.Ed. 738; Moore v. Dempsey, 261 U.S. 86; Ex parte Hawk, 321 U.S. 114-116; Powell v. Alabama, 287 U.S. 45, 71, 77 L.Ed. 158; Rice v. Olson, 324 U.S. 786, 89 L.Ed. 903; Smith v. O'Grady, 312 U.S. 329; Taylor v. Mississippi, 319 U.S. 583, 87 L.Ed. 1600; Tompkins v. Missouri, 323 U.S. 485; White v. Ragen, 324 U.S. 760, 89 L.Ed. 932; Williams v. Kaiser, 323 U.S. 471, 89 L.Ed. 362.
Appellant was denied due process of law by the trial court's refusal to have him examined by competent physicians at the State's expense, also equal protection of law under the Federal and State Constitutions.
Carter v. State, supra; Re Yamashita, 90 L.Ed. 343; Powell v. Alabama, supra.
The trial court erred in failing to grant a change of venue. In so doing the court denied due process of law and equal protection of the law to appellant, contrary to Federal and State Constitutions.
Anderson v. State, 92 Miss. 656, 46 So. 65; Brown v. State, 83 Miss. 645, 36 So. 73; Browder v. Commonwealth, 136 Ky. 45, 123 S.W. 328; Estes v. Commonwealth, 229 Ky. 617; Frank v. Mangum, 237 U.S. 309; Fountain v. State, 135 Md. 77, 107 A. 554; Moore v. Dempsey, supra; Powell v. Alabama, supra; Newman v. State, 143 Ga. 270, 84 C.E. 579; Uzzle v. Commonwealth, 107 Va. 919, 60 S.E. 52; Ware v. State, 146 Ark. 321, 225 S.W. 626; Code of 1942, Sec. 2508.
The trial court erred in refusing to charge the jury concerning the prosecutrix's failure to make outcry and in refusing to direct a verdict of not guilty.
Anderson v. State, 82 Miss. 784, 35 So. 202; Milton v. State, 142 Miss. 364, 107 So. 423; State v. Cross, 12 Iowa 66; State v. Goodale, 210 Mo. 275; Wharton Criminal Law (7 Ed.), p. 997.
Greek L. Rice, Attorney-General, by R.O. Arrington, Assistant Attorney-General, for appellee.
The Sixth Amendment to the Federal Constitution respecting rights of citizens accused of crime has no application to state action, is not a limitation on the powers of the states, and is confined alone to Federal action.
Caldwell v. State, 176 Miss. 80, 167 So. 779.
An examination of the record shows that appellant was indicted on December 3, 1945; that two attorneys, M.W. Boyd and Harry Koch, were appointed by the court to represent the appellant prior to arraignment on the 3rd of December, 1945. Upon arraignment, the appellant plead not guilty and the trial upon the merits was held three days later, the 6th day of December, 1945. In the absence of any showing to the contrary, three days were ample time in which to have investigated the facts in this case. The names of all of the State's witnesses appear on the back of the indictment and among these witnesses appear the names of two doctors, Dr. H.L. Boone and Dr. Cook. No doubt the defense attorneys interviewed these witnesses. If these witnesses knew of nothing that would be of aid to appellant, then I submit that counsel had performed their duties. If appellant had no defense and made a free and voluntary confession of his guilt, which in this case he did, and the corpus delicti was fully established, then I submit that counsel were not under any obligation to manufacture or invent a defense for him. One of the counsel appointed has been active in the practice of law for a period of thirty or forty years and, in the absence of a clear showing to the contrary, it will be presumed that he did his best to see that appellant received a fair and impartial trial as guaranteed to him under the laws of the land, which was all that counsel was required to do.
Powell v. Alabama, 287 U.S. 45-77, 77 L.Ed. 158.
Attack may be rape, notwithstanding absence of resistance, where failure to resist, as testified positively by the female, was on account of fear, in which she was put by her strange assailant and his pistol.
Milton v. State, 142 Miss. 364, 107 So. 423.
The record shows that, when appellant was arraigned on the 3rd day of December, 1945, he was represented by his attorneys and plead not guilty, and that the trial was set for December 6, 1945. On the date of the trial the attorneys filed a motion for a sanity hearing. This motion was sustained by the court. The jury, after hearing the testimony, found the defendant sane. This procedure fully complied with the law.
Carter v. State, 198 Miss. 523, 21 So.2d 404.
Counsel for appellant contends that it was the duty of the State to have the appellant examined by competent physicians and contends further that the action of the lower court in overruling the motion of defense counsel to have him examined was equivalent to having excluded medical testimony for the defendant. The answer is that counsel could have used the process of the court to have all the doctors and physicians, or any of them, within one hundred miles of Laurel to testify in behalf of the appellant. There is no showing that process of the court was denied the appellant or is there any showing that he was denied any of his constitutional rights.
Simmons v. State, 197 Miss. 326, 20 So.2d 64; Code of 1942, Sec. 1886.
Evidence of sanity can be established by non-expert witnesses.
Baird v. State, 146 Miss. 547, 112 So. 705.
The statute requires that the showing for a change of venue must be in writing and sworn to by the prisoner. This was not done in the case at bar.
Purvis v. State, 71 Miss. 706, 14 So. 268.
Assuming for the sake of argument only that the application for change of venue is in due form, the record here does not contain the voir dire examination of the jurors who tried the case and this Court will assume that a proper jury was selected.
Franklin v. State, 189 Miss. 142, 196 So. 787; Garrett v. State, 187 Miss. 441, 193 So. 452.
The jury was fully instructed, at the request of the appellant, as to all the essential acts that were necessary to constitute the crime of rape. The general rule is that, where all the facts are in evidence, it is improper to give a charge upon a presumption.
Bridges v. State, 197 Miss. 527, 19 So.2d 738.
Not only did the prosecutrix testify to facts which established the crime of rape but the confessions of appellant also fully established the crime. The record here shows that the appellant was denied none of his constitutional rights and, further, that he was tried according to our rules of criminal procedure. The fact that he did not choose to testify is not exceptional or unusual. In a number of cases recently tried by this Court, where capital punishment was inflicted, the defendants exercised their constitutional rights and did not testify.
Shimniok et al. v. State, 197 Miss. 179, 19 So.2d 760; Wood v. State, 197 Miss. 657, 20 So.2d 661; Cooper v. State, 194 Miss. 592, 11 So.2d 207.
The State charges that about four o'clock in the morning of November 2nd last, appellant sneaked into the bedroom of the prosecuting witness and committed upon her the crime of rape. The intruder was not recognized at the time, and whatever happened was done so quietly that other members of the family in the same and adjoining rooms were not awakened, and the intruder peacefully took his departure. Late in the following day, appellant was arrested in an adjoining county, the police having had reason to suspect appellant as the party. Appellant is a negro and the prosecuting witness is a white woman, married and the mother of three children.
As will later appear, appellant was immediately taken to a jail in an outside county. On November 9th, a special term of court was ordered to convene on December 3rd, and on that day an indictment against appellant was returned by the grand jury, and two members of the bar were appointed to defend him, and the case was set for trial for December 6th. On that day the two lawyers appointed to defend made and filed in court their joint affidavit, which we quote in full:
"Comes now, N.W. Boyd and H.E. Koch, and in behalf of the above named defendant say as follows:
"That the above named defendant was indicted in this Court at a special term thereof convened on Monday December 3, 1945; that the said defendant had been for approximately 30 days prior to the date of said indictment held without bail in the Hinds County Jail, Jackson, Mississippi, on an affidavit charging the defendant with rape of a white woman;
"That the said defendant was indicted on said charge of rape of a white female on the said 3rd day of December 1945, and movants herein, Boyd and Koch, were appointed by the Court to defend the said defendant so charged with a capital offense.
"At about 3:00 o'clock P.M., in the afternoon of December 3, 1945, the defendant was brought into the Court Room by an armed guard, believed by movants to be a part of the State Militia; that the said defendant was so incapacitated physically, either from disease, or because of insanity since the date of his arrest, or because of a nervous collapse as a result of fright since the date of his arrest, that he was unable to advise with counsel appointed by the Court to defend him. The said counsel appointed by the Court to defend the said Willie McGee, undertook to consult with the said McGee as to the nature of the charge against him and any pertinent facts with reference thereto, and with reference to the charge against him; that the said defendant was in a private consultation room with his said counsel for approximately thirty minutes, but his said counsel were unable to get any coherent statement from the said defendant as to any matter about which he was asked; that the County Attorney was present for a part of the time and undertook to get the defendant to make statements to his counsel, all without avail.
"The said attorneys say further that at about 4:45 P.M. on the said 3rd day of December, the said defendant was removed by the said State Militia from the City of Laurel and from the Second District of Jones County, Mississippi, to Jackson, Mississippi. That the said removal took place before the defendant had been calmed or quieted to such an extent that he could converse with his counsel.
"That the said defendant was returned to the courthouse at Laurel, Mississippi, on Thursday, December 6, 1945, at about 9 o'clock A.M., and the case was called for trial. Attorneys for the said defendant again had the prisoner sent to a room in the courthouse where his counsel could interview him and the said attorneys so appointed, and now movants herein, after an hour's interview, found the said defendant to be as they believe either insane or from fright or other causes so shocked and so mentally unbalanced that he is unable to make a coherent statement and aid his counsel in any manner in preparing this defense.
"Counsel so appointed for the said defendant acting as officers of the court make known to the court the disability of the defendant and the inability of the said counsel to adequately prepare a defense for the said defendant.
"The said counsel also make known to the court the fact that the nature of the charge is such and the public feeling as a result thereof is such that there should be a change of venue, but counsel are unable to get supporting affidavits because of their inability to find kinspeople of the defendant who will make the supporting affidavits; that public opinion and public feeling is such that persons other than members of the family of the defendant are unwilling to become subject to criticism and therefore will not make supporting affidavits though it is a matter of public knowledge that the Sheriff reported to the Governor of the State his inability to protect the defendant and therefore the defendant has been confined since being apprehended outside the county and was brought into the court by a part of the Armed Militia of the State.
"Wherefore, counsel appointed by the court to defend the said defendant now under their oath as officers of the court move the court that inquiry be made as to the sanity of the defendant and in the alternative that if the defendant be found sane the case be continued until such time as the defendant may recover from existing shock to such an extent that he can consult with the said counsel and prepare a defense if the said defendant has a defense to the said charge. Counsel of the said defendant say further that the said cause should be continued so as to give counsel an opportunity to study the facts of the case and prepare such pleas, motions, or other defenses if the facts may justify."
In response to this affidavit the district attorney for the State dictated into the record as follows: "Let the record show that the State denies that the man is insane or unable to conduct a rational defense; likewise the State denies that he cannot get a fair and impartial trial." This done, the court directed that the case proceed upon the issue of the sanity of the accused, and a jury was at once impanelled to try that issue, and four or five lay witnesses having been heard, the jury returned a verdict for the State, following which the defendant was put on trial on the charge, resulting in a conviction and the death sentence. No attention, other than the dictated denial, was paid by the prosecution or by the court to the petition or motion contained in the affidavit as regards a change of venue; and the State now says that no attention was due it because the application for the change of venue was not sworn to by the prisoner as required by Section 2508, Code 1942, which is as follows:
"On satisfactory showing, in writing, sworn to by the prisoner, made to the court, or to the judge thereof in vacation, supported by the affidavits of two or more credible persons, that, by reason of prejudgment of the case, or grudge or ill will to the defendant in the public mind, he cannot have a fair and impartial trial in the county where the offense is charged to have been committed, the circuit court, or the judge thereof in vacation, may change the venue in any criminal case to a convenient county, upon such terms, as to the costs in the case, as may be proper."
It is true that the application was not sworn to by the prisoner, but it also shows that the prisoner was incapable of making the affidavit for himself, and such being the case, both the reason and the letter of Section 1661, Code 1942, comes into play, that statute being as follows: "In all cases where the oath or affirmation of the party is required, such oath or affirmation may be made by his agent or attorney, and shall be as effectual for all purposes as if made by the party."
An application such as this is interlocutory, and we find no instance in the long history in this State of the quoted statute wherein its reasonable application to purely interlocutory steps has ever been refused in any case civil or criminal, although it has been denied, and sometimes under general language unduly restrictive, as to affidavits necessary to initiate a proceeding such as in the probate of a claim or the filing of a bill for divorce where the facts of the claim and its validity are peculiarly within the knowledge and conscience of the claimant. But there is no such case here; and if the statute were refused application in a case such as is now before us, it would mean that only sane prisoners would be allowed to obtain a change of venue, while an insane person or one otherwise incapable of making the affidavit would be denied the right, and we must deny that the Legislature ever had any such thought that such an indefensible difference should be made. In what we have said we do not decide that a prisoner must be insane or disabled in order that his attorney may make the requisite affidavit. We decide only as to the state of case before us.
Such being our conclusion, we do not have to deal with the question as if no such statute existed, which would bring into review the fundamental requirement that every citizen charged with crime is entitled to a trial by a fair and impartial jury, and that to deny him a fair opportunity to procure such a jury is a denial of due process, — as may be asserted on the broad and high ground that those principles of justice and right which are so rooted in the traditions and conscience of our people as to be ranked as fundamental are, by the due-process clauses of both the state and federal constitutions, made inviolable.
It is the settled rule in this State that when an affidavit for a change of venue is sufficient under the statute it makes a prima facie showing therefor which must be met by the State by proof, Magness v. State, 103 Miss. 30, 60 So. 8, Wexler v. State, 167 Miss. 464, 142 So. 501; and we have already stated that the State and the court paid no attention to the affidavit as to the feature of the change of venue other than the quoted denial dictated into the record, which, without proof in support of the denial, had as well not been denied at all.
This brings into focus the question whether the affidavit made by the attorneys states a case prima facie for a change of venue. We might rest our conclusion on that issue on our own cases of Brown v. State, 83 Miss. 645, 36 So. 73 and Magness v. State, supra. But we call attention to the fact that the decisions are in substantial accord throughout the country that a case prima facie for a change of venue is made out "where it is shown that the public is so aroused against accused that it was necessary to call out the militia or otherwise protect him from violence or to remove him from the county," — of which a sufficient number of the cases may be found cited in 22 C.J.S., Criminal Law, Sec. 196, pp. 315, 316.
One of these is Mickle v. State, 85 Tex.Crim. R., 213 S.W. 665, 666. In that case the court said, and we quote it with approval: "The court should also have permitted the filing of appellant's supplemental motion for a continuance, and, if the facts therein stated were true and not controverted by the state, the case should have been postponed or a change of venue ordered. The appellant is a negro, his victim a white man, and it is alleged that such publicity had been given the state's side of the case during the barely 10 days elapsing from the date of the homicide to the trial that a strong public sentiment had been created and existed against appellant. That this was substantially true is made apparent from the fact that, at once upon his arrest on the day following the killing, appellant was taken to the county jail of another county for safe-keeping. When indicted by the grand jury on the 19th, three days after the killing, and brought back to Galveston in order that the statutory requirement for his presence in the setting of his case and the appointment of counsel to represent him, might be met, it further appears that as soon as this was done he was at once sent back to the jail of Harris county. It also appears that a week later, when the day of his trial came, a strong guard of soldiers were deemed necessary for his protection when brought back to Galveston, and that they met him at the depot and escorted him to the courthouse and were placed abut the courtroom, the blinds and shutters of which were drawn. The trial judge approves the bill of exceptions setting forth these matters, with the statement that it was for the protection of the appellant that the soldiers were present and these precautions were taken. It appears to us that, if public sentiment was such as to necessitate the course of conduct above outlined on the part of the officers of the law, it is difficult to believe that at that time and under those circumstances the accused could obtain that fair and impartial trial which is the proud boast and the guaranteed right of all of our citizens. Impertinence and insolence on the part of negroes to white people are recognized as fruitful sources of aggravation, and when it appears, as in the instant case, that such conduct on the part of appellant caused the fatal affray, great care and caution should be exercised before trying the accused at a time and place when the passions of the people of that locality have been so recently stirred as that it was believed by the authorities to have not yet sufficiently subsided to make the life and limb of the accused free from danger at the hands of the populace."
It will be noticed that in the concluding portion of the quotation the court referred to impertinence and insolence on the part of negroes towards white people as fruitful sources of aggravation. How much more so is a charge, and reasonable grounds to believe it, of rape by a negro against a white woman.
Since, then, the affidavit, as made, presented a prima facie showing for a change of venue, the inquiry into the sanity of the prisoner should have been postponed until the issue of the change of venue had been heard and determined, and this for the very obvious reason that the prisoner was as much entitled to a fair opportunity to procure a fair and impartial jury on the issue of his sanity as he was to such a jury on the merits of the charge.
And if it should be sought to answer what has just been said by a contention that no jury wherever selected and impanelled could honestly have returned any other verdict than that the prisoner in this case was sane and fully capable of making an intelligent defense, our reply to that would be that the record is far from conclusive on that point, — leaving aside what is now asserted to be the federal or national rule that where constitutional guaranties have not been observed, it is immaterial whether their observance would have led to a different result.
Having come to the conclusion that on the record as it now stands before us the prisoner was entitled to a change of venue, we do not reach the merits of the charge against him, and because to pursue the several other questions presented would unduly prolong this opinion, we leave all such other questions to a new trial and to a development in an atmosphere and with an opportunity that will permit, and will not paralyze, such development.
Reversed and remanded.