Opinion
No. 38051.
November 12, 1951.
1. Criminal procedure — change of venue.
The denial of a change of venue in a prosecution for murder is largely in the discretion of the trial court, unless it clearly appears that the discretion was abused, and there is no such abuse where eighteen witnesses representing a fair cross-section of the county testified that the defendant could get a fair and impartial trial in the county of the original venue and only two of the eight witnesses offered by the defendant in support of the motion testified unqualifiedly to the contrary.
2. Criminal procedure — evidence — closely connected facts.
In a prosecution for murder the evidence showed that the homicide was the result of repeated beatings of the victim by the accused and that in the progress thereof the victim was knocked through a back door and that the accused then went outside and there attacked two other persons and thereupon immediately returned and continued the beating of the victim who was killed: Held that evidence of all these facts was properly admitted because they were closely connected with the crime in question, shed light upon the intent and motive of the accused, and formed a part of the chain of facts so intimately connected that the whole was relevant in order that the jury might interpret the entire transaction and determine the guilt or innocence of the accused.
3. Criminal procedure — evidence.
When the accused himself testified to occurrences outside the building, mentioned in the foregoing headnote, both on direct examination and, without objection, on cross-examination he was in no position to complain of the admission thereof in evidence.
4. Trial — comments by trial judge — valid restrictions to prevent immaterial or improper burdens upon the record.
The trial judge has the power to impose valid restrictions upon burdening the trial record with immaterial testimony and improper leading questions, and when comments made by him go no further in substantial effect, no reversible error on account thereof is presented.
5. Witnesses — self-incrimination — claim of privilege personal to witness.
The privilege of a witness to refuse to testify on the ground that his testimony might incriminate him is personal to the witness and subject to claim by him alone; but when the trial court had informed the witness of his privilege and the witness thereupon withdrew from the witness stand, his action constituted a factual, personal claim of the stated privilege.
6. Witnesses — self-incrimination.
The contention of the accused that a witness introduced by him who has claimed the privilege of refusing to testify on the ground that his testimony might incriminate him should nevertheless be required to testify to nonincriminating facts although a part of the same transaction is not well taken for the reason that where a witness in his direct examination voluntarily opens an account of a transaction he will on his cross-examination be compelled to complete the narrative, for he will not be allowed to state some facts as to a transaction and afterwards refuse to give the details as to related facts, even if the latter be self-incriminating.
7. Trial — instructions.
An instruction which authorized the jury to find from the evidence that the accused murdered the named person "whether with or without the aid, assistance and encouragement of" another named person did not constitute error when under the evidence the jury was warranted in finding that the accused committed murder under either circumstance.
8. Trial — instructions — erroneously granted at defendant's request — appeal.
An instruction granted at defendant's request, although erroneous, may not be made the subject of complaint by him on appeal.
Headnotes as approved by Ethridge, C.
APPEAL from the circuit court of Marion County; SEBE DALE, Special Judge.
Vernon H. Broom and Henry E. Pope, for appellant.
I. The trial court erred in overruling appellant's motion for change of venue on November 1, 1950, before the trial of the case. Anderson, et al. v. State, 92 Miss. 656, 46 So. 65; Brown v. State, 83 Miss. 646, 36 So. 73; Eddins v. State, 110 Miss. 780, 70 So. 898; Keeton v. State, 132 Miss. 732, 96 So. 179; McGee v. State, (Miss.), 26 So.2d 680; Sec. 2508 Code 1942.
II. The trial court erred in admitting evidence of occurrences that happened outside the building wherein the death of deceased was alleged to have been caused and transpired for the reason that such evidence was not instructive and had no logical purpose other than to inflame the minds of the jurors against the appellant. Augustine v. State, (Miss.), 28 So.2d 243; Baygents v. State, 144 Miss. 442, 110 So. 114; 16 C.J. 600; Dedeaux v. State, 125 Miss. 326, 87 So. 664; Floyd v. State, (Miss.), 148 So. 226; Kehoe v. State, (Miss.), 12 So.2d 149; Raines v. State, 81 Miss. 489, 33 So. 19; 1 Wharton's Criminal Evidence, 11th Ed., Sec. 343, p. 483; Whitlock v. State, (Miss.), 6 So. 237.
III. The trial court erred in unduly curtailing defense attorneys' right to cross-examine State's witnesses by making outright objections to questions asked on such cross-examination and by making remarks from the judge's chair discrediting the knowledge and ability of defense attorneys in the presence and hearing of the jury. 53 Am. Jur., Sec. 88, p. 82; Breland v. State, (Miss.), 178 So. 817; Coker v. State, (Miss.), 27 So.2d 898; Clark v. State, (Miss.), 48 So.2d 130; Collins v. State, 99 Miss. 47, 54 So. 665; 64 C.J. pp. 93, 102; Fuller v. State, 85 Miss. 199, 31 So. 749; Green v. State, 97 Miss. 834, 53 So. 415; Lamar v. State, 64 Miss. 687, 2 So. 12; Meyers v. State, 99 Miss. 263, 54 So. 849; Williams v. State, (Ala.) 39 So.2d 29.
IV. The trial court erred in entertaining and sustaining objections of counsel not of record in this case, but retained by a witness called by appellant, to testimony of said witness, one Luther Turnage, on grounds his testimony might incriminate the said witness when the said witness was willing to testify on behalf of appellant as shown by the failure of said witness to make any objection to his testifying. Brown v. State, 108 Miss. 46, 66 So. 288; 70 C.J. pp. 749, 751; Head v. State, 44 Miss. 731; Spight v. State, 120 Miss. 752, 83 So. 84; State v. Milam, (Miss.), 48 So.2d 596; 3 Wharton's Criminal Evidence, 11th Ed., pp. 1981, 1982, 1983; White v. State, 52 Miss. 216.
V. The trial court erred in granting irreconcilable and contradictory instructions for the State and defendant respectively, to-wit: "The court instructs the jury for the State that if you believe from the evidence in this case beyond every reasonable doubt that the defendant, Luther Musselwhite, either with or without the aid, assistance, and encouragement of one Luther Turnage, did wilfully, unlawfully, feloniously and of his malice aforethought, kill and murder one, Virgil Price, a human being, then you should find the defendant guilty as charged in the indictment". "The court instructs the jury for the defendant, Luther Musselwhite, that before you can return a verdict of guilty against this defendant, your minds must first be convinced and convinced by competent evidence offered in the trial of this case that Virgil Price was in truth and in fact murdered and further that Luther Musselwhite was the murderer and that he acted in combination and conjunction with one Luther Turnage. In other words, you must find the defendant, Luther Musselwhite, not guilty unless you have been convinced beyond a reasonable doubt and to a moral certainty that Virgil Price died as a result of the joint and co-operating acts or action of Luther Musselwhite and Luther Turnage. 53 Am. Jur. pp. 442, 443; Burnett, et al. v. State, (Miss.), 4 So.2d 541; 16 C.J. 271, 921, 1038; 64 C.J. 511; Hunt v. Sherrill, (Miss.), 15 So.2d 426; Secs. 152, 1530 Code 1942; Pittman v. State, 147 Miss. 593, 113 So. 348; Pollard v. State, 53 Miss. 410; 1 Wharton's Criminal Evidence, 11th Ed., p. 207; 2 Wharton's Criminal Evidence, 11th Ed., pp. 1800, 1801; Wilkinson v. State, (Miss.), 108 So. 711; Williams v. State, (Miss.), 135 So. 210.
VI. The court erred in refusing to instruct the jury to return a verdict of not guilty.
VII. The verdict was against the overwhelming weight of the evidence. Bangeren v. State, (Miss.), 17 So.2d 599; Williams v. State, 122 Miss. 151, 84 So. 8.
VIII. The court erred in refusing to grant the following instruction: "The court instructs the jury for the defendant that malice of the defendant is an essential or necessary element of murder and that malice may be implied from the deliberate use of a deadly weapon and the absence of malice unless otherwise shown by competent evidence may be implied from the lack of the use of a deadly weapon". Smith v. State, (Miss.) 38 So.2d 725; 1 Wharton's Criminal Evidence, 11th Ed., p. 146.
Joe T. Patterson, Assistant Attorney General, for appellee.
Appellant's first assignment of error is that the trial court erred in overruling appellant's motion for a change of venue.
The question here raised has been before this Court many times, and this Court has repeatedly held that — "The granting of a change of venue is so largely in discretion of trial court that judgment or conviction will not be reversed, on the ground that change of venue was refused, unless it clearly appears that trial court abused its discretion." Shimniok, et al. v. State, 197 Miss. 179, 19 So.2d 760.
Appellant's second contention is that the trial court erred in admitting evidence of occurrences that happened outside of the building wherein the death of deceased was alleged to have been caused, for the reason that such evidence was not instructive and had no logical purpose other than to inflame the minds of the jurors against the appellant.
This question was before this Court in the case of Stone v. State, 49 So.2d 263, (not yet reported in state reports) wherein this Court referred to with approval the rule announced in Collier v. State, 106 Miss. 613, 64 So. 373 — "Upon the trial of an indictment, a previous crime committed by defendant can be proved only: (a) Where it is connected with the one charged in the indictment, and sheds light upon the motive of defendant; or (b) where it forms a part of a chain of facts so intimately connected that the whole must be heard in order to interpret its several parts; * * *".
In the case at bar, appellant's fight with Alford on the outside of the building was connected with the crime charged in the indictment and shed considerable light upon the motive of the defendant. Appellant's unwarranted attack upon the witness Alford on the outside of the building, and appellant's unwarranted attack upon the witness Walter Stampley inside of the building, clearly showed that the appellant was intent upon whipping everything and everybody that crossed his path. The fight with Alford on the outside of the building certainly formed a part of the chain of facts so intimately connected that it was necessary to hear proof of same in order for the jury to have the whole picture of the events that transpired leading to the death of the deceased.
Appellant's third assignment of error is that the trial court erred in unduly curtailing defense attorney's right to cross-examine state witnesses by making outright objections to questions asked, and by making remarks from the judge's chair discrediting the knowledge and ability of defense attorneys in the presence and hearing of the jury.
It is the inherent right of a judge to control the course of a trial in his court, and to prevent the record of the trial from becoming burdened with immaterial testimony, with or without objection being made thereto. Garrett v. State, 187 Miss. 441, 193 So. 452; Bumpus v. State, 166 Miss. 276, 144 So. 897.
Appellant's fourth assignment of error is that the trial court erred in permitting counsel for Luther Turnage to object to the said Turnage testifying on the grounds that his testimony might incriminate the said Turnage.
We are not unmindful of the rule announced by this Court in the case of Brown v. State, 108 Miss. 46, 66 So. 288, and recently referred to with approval by this Court in the case of Hutchins v. State, 54 So.2d 210. Although this record does not show that the witness Turnage personally claimed his privilege, it does show that when offered an opportunity by the court to withdraw from the witness stand, or remain and testify, that the witness withdrew from the witness stand. The facts show that the witness Turnage, although he did not say anything, by his action in withdrawing from the witness stand when afforded an opportunity to do so by the court, did claim his privilege.
Appellant's fifth assignment of error argued herein is that the court erred in granting irreconcilable and contradictory instructions for the State and defendant, respectively. This Court had a similar question before it in the case of Henry v. State, 199 Miss. 568, 24 So.2d 778. There the Court said — "While the two instructions are in conflict, the accused cannot complain of the giving of a correct instruction for the State, although it is not consistent with the one given more favorable to the accused where the one given in favor of the accused is erroneous."
Appellant's assignment of error No. 6 and No. 7 will be answered as one. The evidence in the case at bar clearly shows that the trial court did not err is refusing to peremptorily instruct the jury to return a vedict of not guilty.
The verdict of the jury is certainly not against the overwhelming weight of the evidence. All of the evidence, and the physical facts as shown by this record presents a case of a most brutal and unmerciful murder of an elderly man sixty-five or more years of age by a young man twenty-eight years of age, who had become enraged over a most trivial thing. Whether appellant struck the deceased in self-defense was clearly a question to be determined by the jury, and even if appellant struck the deceased in self-defense, where is the justification for three fiendish beatings of the deceased by the appellant extending over a period of approximately one and one-half to two hours as clearly shown by this record to have been.
Appellant's eighth assignment of error is that the court erred in refusing to grant appellant's requested instruction as to lack of malice inferable from the lack of the use of a deadly weapon. The court properly refused this instruction in view of instructions granted the appellant and for the further reason, that the fact that appellant did not use a gun that was accessible to him, where the proof clearly shows that appellant beat the deceased to death within a period of approximately two hours, certainly could not be considered as an indication, or implication, of a lack of malice.
Appellant, Luther Musselwhite, was convicted in the Circuit Court of Marion County of the murder of Virgil Price on August 13, 1950, and was sentenced to death.
Appellant first argues that he was entitled to a peremptory instruction in the trial court, and to a new trial after the verdict had been rendered. We have examined carefully the entire record, and are of the opinion that there is no merit in these contentions. Without going into the detailed facts, the State's witnesses testified, and the jury was warranted in concluding that appellant committed a brutal assault and battery with his fists upon the deceased, Price; that appellant is a young man 31 years of age, and that Price was an elderly man 65 years of age; that the assault occurred in Breakfield's Camp, a night club located in Marion County; that appellant beat upon Price with his fists from time to time over a period of about an hour, and that during most of this period Price was wholly disabled from defending himself; that Price had made no assault upon appellant which would warrant the beating in self-defense and in fact was unable to defend himself; that appellant broke his right hand during the assault and that he was the only one who hit Price; and that Price died as a direct result of the brutal and unjustified assault and beating upon him by appellant. Appellant pleaded self-defense, and also claimed that another person beat upon Price, but the jury was amply justified in not accepting his version and in accepting that of several eyewitnesses who testified for the State.
Nor is there any merit in appellant's argument that the trial court erred in overruling his motion for a change of venue. (Hn 1) The State introduced eighteen witnesses on the motion, all of whom testified that in their opinions appellant could get a fair and impartial trial in Marion County. These witnesses seem to be a fair cross-section of the community. Defendant offered in support of his motion eight witnesses, only two of whom testified unqualifiedly that they did not think appellant could receive a fair trial in that county. There was ample basis for the trial judge overruling the motion for change of venue. Action upon such a motion is largely in the discretion of the trial court, unless it clearly appears that it abused that discretion, and that element does not exist here. Shimniok v. State, 1944, 197 Miss. 179, 19 So.2d 760.
(Hn 2) Appellant also assigns as error the admission of evidence of certain occurrences that happened immediately outside of the building in which Price was killed. This point has particular reference to the evidence that appellant attacked and had a fight with Bob and Harlan Alford outside of the building. However, this fight occurred in the middle of the beating of Price by appellant. While in the process of beating Price, appellant knocked him through the back door, after which appellant went outside. After the scuffle with Bob Alford, appellant and Turnage, who the evidence indicated was an accessory and accomplice of appellant, went back in the building. Turnage then used appellant's gun to hold off other people in the building while appellant again assaulted Price. All of these facts were closely connected with the crime in question, shed light upon appellant's intent and motive, and formed a part of the chain of facts so intimately connected that the whole was relevant in order that the jury might interpret the entire transaction and determine appellant's guilt or innocence. See Stone v. State, 1950, 210 Miss. 218, 49 So.2d 263; Collier v. State, 1913, 106 Miss. 613, 64 So. 373. (Hn 3) Moreover, the defendant himself testified to the occurrences outside of the building, both on direct examination by his own attorneys and without objection on cross-examination, so appellant is in no position to complain thereof.
(Hn 4) Nor was there any reversible error in the comments made by the trial judge during the progress of the trial. Two of them may have been improperly phrased, but all of them constituted valid restrictions which the trial judge had the power to impose in order to prevent the record from becoming burdened with immaterial testimony and improper leading questions. The entire record reflects that the learned trial judge was fair and impartial, and that the appellant received a fair and impartial trial.
After the State had closed its case, defendant offered as a witness Luther Turnage, who at that time was also under a separate indictment for the same crime. Turnage was sworn in, asked a few preliminary questions, and defendant's attorney then told him to "go ahead and tell these twelve gentlemen what happened on that occasion" at Breakfield's Camp. The State's evidence had indicated that Turnage had come to the camp with appellant, and had assisted appellant in the beating of Price by holding appellant's gun on other persons in the building and ordering them to stay there, not to interfere, and not to call the police. After Turnage was asked to tell what happened on the night in question, one of defendant's attorneys stated that Mr. Claude Conner represented the witness, and asked the court to have the sheriff call him and request him to come down. Appellant's attorney stated that he wanted to keep the witness from saying anything that might incriminate him or violate the witness's constitutional rights. After a conference between Conner and the attorneys for the State and appellant, Conner dictated into the record an objection to Turnage being questioned about anything he might have done or said on the occasion "for the reason that such testimony, in the opinion of the attorney and of the witness, might incriminate the witness." The witness's attorney stated that he had no objection to Turnage testifying about anything that he might have seen or heard on the occasion, but objected to him testifying about anything the witness might have done or said. The court then ruled that "he does not have to testify, that he has the right to claim his immunity, and the Court now offers him that right and states to him, and to all of the attorneys, that the Court understands the rule to be that if he testifies to any fact whatsoever in connection with the occurrence, he will then be rightfully subjected to cross-examination by the Attorney for the opposite side as to any and everything that occurred there. * * * Therefore, let Mr. Turnage and the Attorneys understand and know that Mr. Turnage is at liberty to leave the witness stand and refuse to testify.
"By Mr. Conner:
"In view of the ruling of the Court as Attorney for Mr. Luther Turnage I claim for him immunity from testifying in this case on anything that might incriminate him.
"* * * So that, the witness can testify or he can refuse to testify, he being under no compulsion whatsoever to testify, and he may withdraw from the witness stand, or he may testify.
"By Mr. Conner:
"In view of the ruling of the Court the witness now withdraws himself from the witness stand and will not testify.
"By the Court:
"The witness choosing not to testify has a perfect right so to do, and that right is respected by this Court
"Witness Luther Turnage Withdrawn from Stand."
Appellant's attorneys excepted to this ruling, on the ground that Turnage should be able to testify on matters that do not incriminate him, but would still be immune from testifying on any matters that would incriminate him. Turnage was the only witness other than appellant who was offered by appellant as to the facts.
Appellant now says that this action of the trial court was error; that the witness's privilege is a personal one, which may be waived by him and must be claimed by the witness himself; and that here the witness said nothing and did not personally claim his privilege. Appellant relies on Brown v. State, 1914, 108 Miss. 46, 66 So. 288. There appellant, West Brown, had been jointly indicted with his brother, Alf Brown, for murder. A severance was granted and West Brown was tried and convicted of manslaughter. During the trial Alf Brown was called as a witness for defendant. He was not sworn as a witness. The witness's attorneys objected to Alf testifying as to any matters concerning the offense in question because it might tend to prove his connection with the crime and incriminate him. The trial court sustained that objection. The witness said nothing. On appeal the conviction was reversed. (Hn 5) The privilege was said to be personal to the witness and subject to claim by him alone. The Court said:
"It was the duty of the court to have informed the witness of his privilege, and to have left it to the witness alone to waive or claim this protection afforded him by the Constitution. So far as the witness is concerned, there is nothing in the record to suggest that he was unwilling to testify. His lawyers were unwilling, but the witness himself said not a word. He was not even sworn as a witness. The defendant was denied the benefit of his codefendant's evidence, although, so far as the record discloses, the witness was perfectly willing to testify.
"It is our opinion that the attorneys, as officers of the court, might properly ask the court to apprise the witness of his rights; but certainly they have no right to object to his testifying, if he desires to do so. The court cannot assume that the witness is unwilling to give evidence, unless the witness so states."
In Jackson v. State, 1935, 173 Miss. 776, 163 So. 381, 100 A.L.R. 789, and in Hutchins v. State, Miss. 1951, 54 So.2d 210, 212, witnesses under indictment for the same offenses and called by the defendants claimed the privilege personally and in their own words. In the Hutchins case, Brown v. State was referred to and it was said "That case was reversed on appeal because there was nothing in the record to indicate that the codefendant was unwilling to testify."
In the instant case, it is manifest that the witness understood and personally claimed his privilege against self-incrimination, and that the trial court so found. The test under the Brown rule is whether it appears in fact that the witness has personally claimed his privilege. In that case the witness was not sworn, was not asked any questions, the court made no explanation to him of his privilege; his attorneys simply objected. Of course, the better procedure in every instance would be to have the witness personally answer an inquiry from the court as to whether he claims his privilege. But the rule in the Brown case means that it must appear as a fact that the witness personally claims the privilege. Here we think that fact exists. The trial judge, at some length and in some detail, explained to the witness and to the attorneys his conception of the privilege. He was told that he could refuse to testify or he could testify. After the explanation by the trial judge, and the lengthy colloquy of the attorneys, the witness, who obviously had heard the trial court's explanation of his rights, by his action claimed his privilege and withdrew from the witness stand. We think that these circumstances comply with the rule in the Brown case and constituted a factual, personal claim of privilege by the witness. See 58 Am. Jur., Witnesses, Sec. 48; 8 Wigmore, Evidence, Sec. 2270; Annotation, 75 Am. St. Rep. 340.
Although our decision is placed on the above basis, it is also relevant to note that appellant made no objection to the court's action on the ground that the witness must claim the privilege personally, nor did he give that reason in his motion for a new trial. Appellant thus afforded the trial judge no opportunity to pass on that proposition. (Hn 6) Appellant's objection was for another and erroneous reason, that the witness should be permitted to testify as to nonincriminating facts in the transaction. Yet where a witness in his direct examination voluntarily opens an account of a transaction, he will, on his cross-examination, be compelled to complete the narrative notwithstanding his claim of privilege from testifying. He will not be allowed to state some facts as to a transaction and afterwards refuse to give the details as to related facts. 58 Am. Jur., Witnesses, Secs. 94-95; 8 Wigmore, Evidence, Sec. 2276. The opposite rule would permit a witness to give a biased and one-sided version of a transaction.
(Hn 7) Appellant argues that an instruction granted the State authorizing the jury to find from the evidence that appellant murdered Price "whether with or without the aid, assistance, and encouragement of one Luther Turnage" was erroneous, but manifestly the jury was warranted under this record in finding that appellant committed murder under either circumstance. (Hn 8) The instruction granted appellant, to the effect that the jury must find that appellant killed Price while acting in combination or conjunction with Turnage, was improper, but was granted at the request of appellant, who cannot complain of it. Moreover, appellant cannot complain because the instruction which he obtained placed an additional burden upon the State and was more favorable to the appellant than it should have been. Haney v. State, 1946, 199 Miss. 568, 24 So.2d 778. We have also examined appellant's other assignments of error, but we find that they have no merit.
For these reasons the judgment of conviction is affirmed, and the date for execution of the sentence is set for Friday, December 21, 1951.
Affirmed, and Date for Execution of the Sentence Set for Friday, December 21, 1951.
The above opinion is adopted as the opinion of the Court and for the reasons therein indicated, the judgment of the court below is affirmed and Friday, December 21, 1951 is the date set for execution of the sentence.
Hall, J., took no part in decision of this case.