Summary
In Scarbrough v. State, 204 Miss. 487, 37 So.2d 748 (1948), the defendant, on trial on a charge of burglary, testified in his own behalf.
Summary of this case from Davis v. StateOpinion
December 13, 1948.
1. Criminal procedure — evidence — proof of other crimes committed by accused.
It is not competent for the state in presenting its case in chief to prove that a defendant has been convicted or is guilty of other crimes wholly disconnected with, and having no direct bearing on, the case under investigation.
2. Criminal procedure — error to permit testimony which is calculated to arouse race prejudice.
It is not permissible to prove that the accused, a negro, was impudent to the arresting officers, even though in an attempt at justification of their conduct in inflicting corporal punishment on him, since such extrinsic proof would be as highly prejudicial to the accused as any other fact or circumstance in the case.
3. Criminal procedure — burglary prosecution — intimations of other crimes.
In a burglary prosecution when the prosecution succeeds in getting before jury, by persistent efforts over sustained objections, that the accused had been implicated on another occasion in the larceny of a radio, the error bears upon the question whether the accused has had a fair trial within the constitutional sense.
4. Constitutional law — fair and impartial trial, a fundamental requirement.
When the record of a case taken as a whole discloses that the accused has been deprived of his constitutional right to a fair and impartial trial, he is entitled to another trial regardless of the fact that the evidence in the trial under review may have shown him to be guilty beyond every reasonable doubt.
Headnotes as approved by McGehee, J.
APPEAL from the circuit court of Clarke County; JESSE H. GRAHAM, J.
W.F. Latham, for appellant.
The court committed error in overruling appellant's motion for a directed verdict, for that the reasons assigned in the said motion show the facts as revealed by the record, that there was no evidence offered by the State that showed that the appellant committed the crime charged against him. The only evidence that the State offered was an alleged confession by the appellant and as revealed by the record the appellant was cruelly beaten by the officers in order to get a confession.
The court committed error in overruling appellant's motion for a directed verdict at the conclusion of all the evidence. Said motion assigns all of the reasons that were assigned in the motion at the conclusion of the State's testimony in chief and that the record reveals by the State's witnesses themselves, Jake Gordy who was the town marshal and who made the arrest of the appellant, one night when he was accompanied by his son who was not an officer, and M.L. Eaves who was night marshal of the town of Quitman, Mississippi. Mr. W.W. Gordy, himself, admitted that he did strike the appellant giving as his reason for striking the appellant that the appellant was sassy and impudent but nowhere in the record does it show that the negro was anything but humble and submissive to the officers.
Mr. M.L. Eaves, the night marshal, testified that he saw the officer, Gordy, striking the appellant. Mr. Eaves, a State's witness, also testified that he was present at all times and that he did not hear the appellant say one word that was sassy and impudent to the officer, Gordy, but that the appellant talked as nice as a Negro could to a White man.
And the appellant testified that he was severely assaulted and beaten by the officers with black jacks and other instruments that caused him to confess, but that the confession was untrue and that he did not commit the crime.
The only other testimony offered by the State was that by J.C. Kitchens, a constable, who sometime after this confession was made to Mr. Gordy, that he met the appellant on the streets of Quitman and that he told him that he broke into the store of Mr. J.L. Weaver. That all of these confessions had been made after the appellant was beaten by the officers of the law and had been put in fear of his life.
There is nowhere in the record that shows that any statement made by the appellant was free and voluntary and the court committed error in overruling appellant's objection to evidence offered by the State that was not shown to be free and voluntary.
Confessions cannot be received unless they were voluntarily made. Garrard v. State, 50 Miss. 147.
Before admitting a confession to the jury the court should examine it and ascertain whether it is free and voluntary. Draughn v. State, 76 Miss. 574, 25 So. 153.
Upon objections to the admission of a confession, proof of its free and voluntary character should precede admission, Hathorn v. State, 138 Miss. 11, 102 So. 771. Confession to be admissible must be shown to have been free and voluntary, Hathorn v. State, supra.
The court committed error in admitting testimony for the State over the objection of the appellant about a separate and distinct offense.
In prosecutions for a particular offense, evidence tending to show defendant guilty of another distinct offense, disconnected with the crime charged is inadmissable, Whitlock v. State, 6 So. 237; Brown v. State, 72 Miss. 997, 17 So. 278.
In criminal prosecutions, generally, evidence which tends to show accused's commission of separate and distinct crimes is not admissible, McLin v. State, 150 Miss. 159, 116 So. 533.
Generally, evidence of other crimes is inadmissible, Willoughby v. State, 154 Miss. 653, 122 So. 757, 63 A.L.R. 1319.
Generally, the issue on a criminal trial must be single and testimony must be confined to the issue and prosecution cannot aid proof against defendant on trial for one offiense by showing that he committed other offenses. Crafton v. State, 26 So.2d 347. R.O. Arrington, Assistant Attorney General, for appellee.
The appellant argues that the court erred in admitting the confession and that the court should have conducted preliminary inquiry as to the admissibility of the confession in the absence of the jury, citing the case of Draughn v. State, 76 Miss. 574, 25 So. 153. In the case of Ellis v. State, 65 Miss. 44, 3 So. 188, with reference to the admissibility of a confession, the court said: "Before a confession is received in evidence against a defendant in a criminal trial, it should be shown that is was voluntary, that is to say, made without the influence of hope or fear being exerted on the accused by any other person. Whether it was so made or not, is a preliminary matter for the court and not for the jury to determine. The jury have nothing to do with the competency of evidence; that is a question exclusively for the determination of the court. The court should decide in the first place, after investigation, whether a proposed confession shall be heard by the jury or not, and if it is deemed competent by the court; and is permitted to go to the jury, they are the exclusive judges of its weight and value as evidence. When it is proposed to introduce in evidence, a confession of the accused against himself, the court should, upon a preliminary investigation, conducted out of the pressence and hearing of the jury, if requested by the defendant, determine whether it is competent or not. If satisfied after hearing all the testimony pertinent to the inquiry, that the confession is admissible, it should go to the jury, but unless it plainly appears that it was free and voluntary — if there is a reasonable doubt against its being free or voluntary — it should be excluded from the jury." Simmons v. State, 61 Miss. 243 ( 65 Miss. 47, 48).
This rule of procedure has been consistently followed by the court and counsel for the appellant having failed to ask for a preliminary inquiry in the absence of the jury is in no position now to complain. While the conduct of the officer in striking the appellant was wholly improper, it had nothing to do with the confession which was made some time before the striking took place, and according to the testimony the confession was free and voluntary and admissible.
Mr. J.C. Kitchens, Constable of Beat 1, Clarke County, testified that the appellant, some time after the burglary, told him that he burglarized the store and explained to him how he did it; that this was a free and voluntary statement of the appellant; that he made him no promises or threatened him.
The next assignment of error argued is that the court erred in admitting evidence of another offense, citing a number of cases. The general rule is that evidence of other crimes and offenses are inadmissible subject to certain exceptions. Willoughby v. State, 154 Miss. 653, 122 So. 757.
The record herein shows that when Mr. Gordy, the first witness for the state, was testifying he said that the appellant was implicated in the radio stealing; that counsel for the appellant objected and the court sustained the objection; that counsel then moved to exclude it and the court also sustained him. However, a reading of this record shows that time and time again, even upon cross-examination by counsel for appellant, the witnesses would refer to the radio. However, the court did all he was requested to do and could not have done more as the appellant did not ask for a mistrial. In the case of Logsdon v. State, 183 Miss. 168, 183 So. 503, with reference to the asking of an improper question where objection was sustained and motion for a mistrial was overruled, the court said: "The question should not have been asked, but when the court sustained the objection there to and directed the jury not to consider it, no error was committed in refusing the appellant's request for a mistrial.
"Ordinarily, error in the asking of an improper question is cured by not permitting it to be answered. Whether such an error is incurrable and a mistrial therefor, if requested, should be granted rests in the sound discretion of the trial court, and we do not think this direction was here abused. On the contrary, we concur in the ruling made. Affirmed." ( 183 Miss. 170).
Furthermore, the appellant testified in his own behalf and it was brought out upon direct examination that he was arrested about a radio. He admitted that he confessed but contended that he only confessed after he was hit and denied that he confessed or told Mr. Kitchens that he broke in the store. The defendant admitted upon cross-examination that he had been convicted a number of times for shooting craps and being drunk and about the radio. Testimony in full. When the defense rested, Mr. Gordy, the marshal, was introduced in rebuttal and denied that the defendant was struck in any manner by anyone prior to his confession.
The appellant assigns other errors but cites no authority to support them. Therefore, I submit that the assignments are waived. Johnson v. State, 154 Miss. 512, 122 So. 529.
The conviction of the defendant, Clyde Scarbrough, for the crime of burglary was not had as a result of a fair and impartial trial, even though there was an issue of fact to be properly submitted to the jury as to whether corporal punishment was inflicted on the accused after he had accommodated the officers by making a free and voluntary confession or whether it was inflicted immediately prior thereto.
During the month of October, 1947, a store building in the Town of Quitman, where the defendant resided, was burglarized during the nighttime, and some shirts, pants, and cartons of cigarettes were stolen. As would naturally be expected, there were no eye witnesses to the burglary. None of the stolen goods were ever found in the possession of the defendant. At that time, his nephew was in jail at Quitman for having stolen a radio. The sheriff of the County placed the defendant under arrest during the day following the burglary, but he was released from custody during that same day. It is not clear as to which of these two spearate and distinct offenses he was then accused of.
About two weeks later, the city marshal, his son, and the night marshal, took the defendant in custody one night and carried him in an automobile to the county courthouse. These two officers testified that when they arrived there they talked to the defendant in the car about the burglary before taking him up into the courtroom and thence to jail; that he freely and voluntarily admitted in the car that he had burglarized the store, stolen the goods in question and had traded them for whiskey to a named individual. None of the goods were shown to have been found in the possession of such individual.
The city marshal testified that after they went into the courthouse, the defendant retracted his statement as to who he traded the goods to for whiskey, and that he then struck the defendant a time or two with a "slapper" made of leather, like two pieces of wagon lines; that he did this when the defendant had thus changed his statement from what he had said while in the car; and, it was shown that a written confession of the burglary was signed in the courthouse by the defendant using an X mark, but this writing was not offered in evidence, evidently because it was signed after the defendant had been punished. The night marshal heard the blows from an adjoining room and testified that while the defendant was in the courtroom he was well behaved in his attitude toward the other officer.
The prosecution relied upon the confession which is claimed to have been made in the car freely and voluntarily before the punishment was administered, and also upon a subsequent statement alleged to have been freely and voluntarily made to the constable of the district, on the street, during the daytime.
The defendant testified that after he was taken into custody by the day and night marshals, and while they all were in the car, he was struck by the son of the day marshal with a blackjack, and that they then questioned him in regard to the radio which had been stolen on a different occasion than when the store was burglarized, and that when he was questioned following the blow struck by the son he did not admit any connection with the burglary, until the blows were thereafter inflicted by the city marsal in the courtroom; that he then confessed that he committed the burglary, but that his confession in that behalf was untrue.
It was a question for the jury as to whether or not the defendant was punished after he had already confessed to the burglary. However, some of the Judges are of the opinion that under the case of White v. State, 129 Miss. 182, 91 So. 903, 24 A.L.R. 699, the confession of the burglary, whether immediately before or immediately after the blows were struck in the courthouse, was so closely connected with what transpired in the car as to render the confession involuntary. Whereas, the other Judges are of the opinion that the case at bar is distinguishable on its facts from those involved in the White case, supra, since in that case the accused had been taken into a store building to the corpse of the person whom he was suspected of having killed, and made a confession under more threatening circumstances than prevailed in the automobile where the defendant in the case is alleged to have first made the confession. On this point see 20 Am. Jur., page 449, and particularly the last statement contained in Section 523 of the said text. The two officers denied that he was struck in the car, but the son of the day marshal, who is alleged to have struck the defendant with a blackjack in the car, was not introduced as a witness.
Upon the trial the prosecution was able to get before the jury the clear intimation that the nephew of the defendant had informed the officers that the defendant was implicated with him in the theft of the radio. This was done over the objection of the defendant and in disregard of the trial court's ruling in sustaining such objection. The witnesses appeared eager to tell that the defendant had helped to steal the radio, and they repeatedly made mention of such fact in their testimony.
It is permissible when one accused of crime has taken the witness stand in his own behalf for the prosecution to question him in regard to previous convictions of crime, but (Hn 1) but is not competent for the State, in presenting its case in chief, to prove that a defendant has been convicted or is guilty of other crimes wholly disconnected with, and having no direct bearing on, the case under investigation. (Hn 2) Nor is it competent for an officer, in response to leading questions of the prosecuting attorney, to testify that an accused was sassy or impudent to the officers as a justification for inflicting corporal punishment on him, where such officer has testified independently of such claim that he struck the accused because he was trying to retract statements made immediately before being struck. To prove that a defendant who belongs to the colored race was impudent to the officers is calculated to be as highly prejudicial to him as almost any other fact or circumstance in a case.
After the city marshal had volunteered the statement that the defendant "was implicated in the radio stealing, too," and the Court had sustained an objection thereto, the witnesses continued to get it before the jury that the defendant had stolen the radio, based on hearsay statements of his nephew who was in jail. For instance, a witness stated, "We questioned him. His nephew had done told us . . ." Then an objection was made as to "what somebody told us" and the objection was overruled. The witnesses thereafter continued throughout the trial to tell about the defendant having stolen a radio and to inform the jury that they "picked up" the defendant because of what his nephew had told them instead of introducing the nephew as a witness, if indeed his testimony as to this separate offense would have been competent if called as a witness.
(Hn 3) This is not one of those cases for the application of the rule that a conviction will be affirmed unless it appears that another jury could reasonably reach a different verdict upon a proper trial than that returned on the former one, but rather it is a case where the constitutional right of an accused to a fair and impartial trial has been violated. (Hn 4) When that is done, the defendant is entitled to another trial regardless of the fact that the evidence on the first trial may have shown him to be guilty beyond every reasonable doubt. The law guarantees this to one accused of crime, and until he has had a fair and impartial trial within the meaning of the Constitution and Laws of the State, he is not to be deprived of his liberty by a sentence in the state penitentiary.
In the instant case, the issue was whether or not the defendant burglarized the store in question, and not whether he had stolen a radio on a former occasion or had been "sassy and impudent" to the officers in denying his guilt, or in trying to change the alleged confession.
On the cross examination of the defendant, an effort was repeatedly made by the prosecution to compel the said accused to state whether or not the officers had committed perjury at the risk of their being sent to the penitentiary when they testified that the punishment was inflicted on the defendant after had made a free and voluntary confession, instead of before the making of such confession as contended by the defendant.
In the case of Fisher v. State, 145 Miss. 116, 110 So. 361, 365, this Court quoted from the case of Hampton v. State, 88 Miss. 257, 40 So. 545, 117 Am. St. Rep. 740, the following language: "What is a fair trial? Perhaps no precise definition can be given it, but it certainly must be one where the accused's legal rights are safeguarded and respected." And neither shall we undertake to define a fair and impartial trial, since it is sufficient to say that the defendant in the instant case did not have such a trial
Reversed and remanded.