Opinion
No. 35026.
March 8, 1943.
1. HOMICIDE.
Evidence warranted conviction of assault and battery with intent to murder.
2. CRIMINAL LAW.
In prosecution for assault and battery with intent to murder by explosion of fire bomb in movie theater, where explosion of stink and tear-gas bombs in theater and accused's reference thereto pointed to accused as the one who was criminally responsible for placing of bomb in theater, evidence of stink and tear-gas bomb explosions was not improperly admitted on ground that they evidenced commission of crimes other than one for which accused was indicted.
3. CRIMINAL LAW.
Where objection to district attorney's statement was sustained, and trial court had previously charged jury not to consider matter to which he should sustain an objection, trial court did not err in refusing accused's request for mistrial.
4. CRIMINAL LAW.
In prosecution for assault and battery with intent to murder by explosion of fire bomb in movie theater being picketed by labor union, evidence that union member received negative answer to question of drug store employee whether he knew how to make tear-gas bombs was harmless, where accused's connection with placing of tear-gas bombs in theater appeared from other testimony.
5. CRIMINAL LAW.
In prosecution for assault and battery with intent to murder, district attorney's question of accused after exhibiting a $50 bill to accused whether accused did not send the $50 to another to have a third fellow leave town before trial of the case was not objectionable.
6. CRIMINAL LAW.
A criminal jury should be given ample time to consider its verdict, and how long it should be held together for that purpose is for the trial judge, and his decision will not be disturbed in the Supreme Court in absence of a showing that the jury was coerced into returning verdict.
7. CRIMINAL LAW.
Where jury retired to consider its verdict late Saturday afternoon and on the following Monday jury reported that it had failed to reach a verdict and trial court directed jury to retire for further consideration, and jury reported to the court and was returned for further consideration two times on Tuesday, conviction was not required to be reversed where nothing indicated that jury was coerced into returning a verdict.
APPEAL from the circuit court of Lauderdale county, HON. ARTHUR G. BUSBY, Judge.
J.V. Gipson and J.A. Riddell, both of Meridian, for appellant.
There is an utter absence of any positive or direct testimony in anywise connecting, or tending to connect, this appellant with the doing of the act constituting the crime in this case. As to these several acts of violence against the theater no person or individual has been shown to be in anywise connected therewith, by positive, direct, indirect or circumstantial evidence, and all such circumstances appear as episodic and isolated incidents. The evidence of circumstances is wholly insufficient upon which to base this appellant's conviction.
In the application of circumstantial evidence the utmost caution and vigilance must be used, and when the evidence leaves it indifferent as to which of several hypothesis is true, or merely establishes some finite possibility in favor of one hypothesis rather than another, such evidence cannot amount to proof, however great the probability might be.
Hood v. State (Miss.), 27 So. 643; Johnson v. State, 79 Miss. 42, 30 So. 39; Jones v. State, 57 Miss. 864; Algheri v. State, 25 Miss. 584; Moore v. State, 188 Miss. 546, 195 So. 695; Jones v. State, 189 Miss. 533, 198 So. 555.
Appellant challenges the action of the trial court in admitting, over appellant's objection, evidence of other and different acts of violence at, toward, and in the Royal Theater than that laid in the indictment. We understand the general rule of evidence that testimony of other offenses, other than that for which the accused is on trial, is inadmissible, but to this general rule of inadmissibility there are a few well defined exceptions, one of which is that such evidence is admissible for the purpose of showing motive or to identify the defendant. The appellant was not shown directly, indirectly, or by circumstances to have been in anywise connected with such other alleged acts of violence. Therefore, we respectfully submit that under none of the well recognized exceptions to the general rule is evidence of the stink (stinch) gem and the breaking of the marquee admissible. They are in the last analysis simply unrelated and isolated acts or offenses, and proof of them and the circumstances surrounding them, as made in this effort, does not connect this appellant in the slightest extent to the commission of the crime laid in the indictment.
Floyd v. State, 166 Miss. 15, 148 So. 226; Irby v. State, 186 Miss. 161, 185 So. 812; Willoughby v. State, 154 Miss. 653, 122 So. 757, 63 A.L.R. 1319; Craft v. State, 155 Miss. 465, 124 So. 488; Baygents v. State, 144 Miss. 442, 110 So. 114; Dabney v. State, 82 Miss. 252, 33 So. 973; Benoit v. Bay St. Louis, 103 Miss. 218, 60 So. 137; Brown v. State, 72 Miss. 997, 17 So. 278 Whitlock v. State (Miss.), 6 So. 237; King v. State, 66 Miss. 502, 6 So. 188; Collier v. State, 106 Miss. 613, 64 So. 373; Hurd v. State, 137 Miss. 178, 102 So. 293; Parkinson v. State, 145 Miss. 237, 110 So. 513; 16 C.J. 133.
The admission of the conversation between Mac Higginbottom and the drug store clerk, not in the presence of the appellant and with which appellant had nothing to do, was error. In considering this assignment it is proper to keep in mind that the state's case was not based upon theory of conspiracy between this appellant and any third party nor was there any theory of joint action relied upon by the state.
Such conversation is the rankest sort of hearsay and not admissible in evidence against appellant.
Irby v. State, supra; Jones v. State, supra; 16 C.J. 545, Sec. 1036; 16 C.J. 572, Sec. 1113.
This court has in many cases recognized that the conduct of the district attorney, and especially when it has the approval of the trial judge, as here, may of itself be sufficient to reverse. Here the district attorney's questions about this $50 bill came like a bolt of lightning out of the blue, and same was so framed as to assume that the defendant had offered it to Dalton Thomas to take a vacation and not appear as a witness at the trial. This was conduct on the part of the district attorney of the most reprehensible kind, and amounted to his telling the jury (testifying in other words) that the defendant had been guilty of thus attempting to bribe a witness. Nowhere else in this record is there the slightest reference to this matter. Even if the district attorney had proof of any such facts, it would still have been incompetent for the addtional reason that it injected into the case an issue entirely collateral to the guilt of the appellant of the offense for which he was being tried. Therefore, for such error we insist that this case should be reversed.
The court erred in requiring the jury to return to its room and further deliberate after the jury had reported its inability to agree upon a verdict and in overruling appellant's motion for a mistrial.
Wade v. State, 155 Miss. 648, 124 So. 803.
We feel certain that the judge's repeated sending back of the jury and holding them so long amounted to coercion of the jury; that the members thereof, or some one or more of them, may well and reasonably have concluded, whether properly or not, that he intended holding them indefinitely or until they agreed, and thus secure a verdict other than one based on each juror's sincere and conscientious evaluation of the evidence and the law — one secured through improper pressure of events.
Greek L. Rice, Attorney-General, by R.O. Arrington, Assistant Attorney-General, for appellee.
The evidence for the state as to who placed the bomb in the theater depended upon circumstantial evidence.
As to the objections to the evidence, we think, as the case was largely controlled by circumstantial evidence, that any circumstances logically tending to show a motive on the part of appellant to commit the crime were admissible in evidence. All of the facts stated above have a tendency to prove a motive on the part of the appellant, and to connect him with such motive for the commission of the crime. Circumstances which in and of themselves would have but slight weight and would be insufficient, standing alone, to furnish a motive, when taken in connection with other circumstances having a like tendency and logical relation, might furnish a strong and convincing proof of the fact sought to be established.
Sauer v. State, 166 Miss. 507, 144 So. 225.
The guilt or the innocence of the appellant was a question for the jury and no error was committed by the lower court in refusing the peremptory instruction requested.
The general rule is that the issue on a criminal trial shall be single; however, there are exceptions, such as where the offense charged and that offered to be proved are so connected as to constitute but one transaction, or where it is necessary to identify the offender, or where it is material to prove motive, and there is apparent relation or connection between the act proposed to be proved and that charged, or where the accusation involves a series of criminal acts which must be proved to make out the offense, or where it is necessary to prove scienter or guilty knowledge, and the like.
King v. State, 66 Miss. 502, 6 So. 188; Raines v. State, 81 Miss. 489, 33 So. 19.
Where one crime is shown to be intimately connected with another, so as to furnish the motive for the commission of the crime charged, it is permitted to prove such other crime.
Dabney v. State, 81 Miss. 252, 33 So. 973; Collier v. State, 106 Miss. 613, 64 So. 373; Keel v. State, 133 Miss. 160, 97 So. 521; Clark v. State, 181 Miss. 455, 180 So. 602; McCormick v. State, 159 Miss. 610, 132 So. 757; Dixon v. State, 169 Miss. 876, 154 So. 290.
Ordinarily, error in the asking of an improper question is cured by not permitting it to be answered. Whether such an error is incurable and a mistrial therefor, if requested, should be granted rests in the sound discretion of the trial court, and we do not think this discretion was here abused.
Logsdon v. State, 183 Miss. 168, 183 So. 503.
The court did not err in admitting the testimony of the witness Freeman as to the statement, or question, of Mack Higginbottom, if he knew how to make tear gas bombs, which statement was made in the absence of the appellant, Leo Schwartz. The facts and circumstances in evidence prove that there was a conspiracy, a combination, understanding, or agreement existing between the appellant and Higginbottom, and so long as they were acting together in the furtherance of the same unlawful design or purpose, the acts of one were the acts of the other and the evidence was clearly admissible.
Street v. State, 43 Miss. 1; Osborne v. State, 99 Miss. 410, 55 So. 52; Pickett v. State, 139 Miss. 529, 104 So. 358; Byrd v. State, 165 Miss. 30, 143 So. 852; King et al. v. State, 123 Miss. 532, 86 So. 339; 12 C.J. 637; Underhill's Criminal Evidence (4 Ed.), Secs. 771, 773, 774, 776.
Furthermore, the appellant introduced Dr. Smith who testified that the statement was made by Higginbottom as testified to by Freeman on the part of the state, although under different circumstances. This would cure the alleged error if the testimony was incompetent.
Clayton v. State (Miss.), 131 So. 648; Millette v. State, 167 Miss. 172, 148 So. 788; McPherson v. State, 124 Miss. 361, 86 So. 854; Kimbrall v. State, 178 Miss. 701, 174 So. 47.
It is within the sound judicial discretion of the trial judge as to how long he will keep the jury in deliberation, and this discretion will not be reviewed on appeal, unless there has been a clear abuse of it.
Wade v. State, 155 Miss. 648, 124 So. 803.
Argued orally by J.A. Riddell, for appellant, and by R.O. Arrington, for appellee.
The appellant was convicted of an assault and battery with intent to kill and murder. One of his complaints is that the evidence is insufficient to support the verdict, because of which the court below either should have granted his request for a directed verdict of not guilty, or, after his conviction, should have set the verdict aside and granted him a new trial.
The evidence for the state discloses that the appellant is secretary of a labor union in Meridian, Mississippi, known as the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators, which is affiliated with the American Federation of Labor. He is an operator of a motion picture machine, and was employed as such by a picture show in Meridian. In January, 1941, Royal and Pruitt began operating a motion picture theater, known as the "Royal." No union labor was employed therein. On being requested by the appellant, in behalf of his union, to employ only union labor in the operation of this motion picture show, Royal and Pruitt declined, whereupon, under the supervision of the appellant, the Royal Theater was picketed for about a month for the purpose of coercing Royal and Pruitt into complying with the labor union's request. The method of this picketing was that several people would parade on the sidewalk in front of the theater, each carrying a sign containing the words "Royal Theater unfair to organized labor." This picketing was continuous, the persons doing the picketing being shifted every few hours. The appellant directed the picketing, taking his turn in participating therein, and when not himself engaged in picketing this theater, spent considerable time each day in a café across the street therefrom looking toward the theater. Another method adopted by the appellant for ascertaining whether the picketing had lessened the patronage of the theater was to have one of the employees of this café, or some other person, to buy tickets to the theater, at intervals, during the day with money supplied by the appellant, the tickets being numbered serially, thereby disclosing the number of tickets sold between the first and last serial numbers. The appellant also complained to an agent of the State Tax Commission that Royal and Pruitt were not collecting the sales tax due on the theater tickets that were being sold, and requested him to take some action in the matter.
Shortly after the picketing began, and at intervals for three or four weeks, bombs exploded in the theater, one of these being a "stink" bomb and the others tear-gas bombs. Nobody was injured thereby, but all of the patrons then in the theater were greatly inconvenienced. After this had been going on for about a month, a bomb, designated as a "fire" bomb, exploded in the theater while a picture was being shown therein, seriously injuring several persons, among whom was Mrs. Morton Sansan on whom, the indictment alleges, the assault and battery was committed. This bomb, referred to as a "homemade contraption," was fastened to a leg of one of the chairs in the theater, contained an electric battery, and was timed to explode by means of a watch attached to it. The appellant had sufficient knowledge of electric wiring to make emergency repairs on motion picture machines. Immediately after the explosion of this bomb the appellant was arrested, and the bombing and picketing of the theater ceased.
Three days before the last bomb exploded in the theater, the appellant was engaged in a heated conversation with Mrs. Lucile L. Terry, at a filling station, about the bombing and picketing of this theater, which acts Mrs. Terry seems to have been condemning and the appellant defending. B.L. Thomas joined the group at this time and took part in the conversation. What then occurred can best be told in Mrs. Terry's language: "And it came up in some way about tear bombs. I just don't remember exactly, but we had been discussing the picketing of that Royal Theatre in quite — well, pretty hotly, Leo and myself. So Mr. Thomas asked Leo (the appellant) if he thought tear bombs would hurt anybody and Leo said `no,' and he said well, he thought that was a mistake; that the police had said they would, and said his children's eyes had been hurt from it, and their conversation went on. I had asked Leo earlier if he didn't think the union was wrong in not allowing this young man to maybe make a pay-day and then join their union. I also asked him if he had picketed, and he said yes, hadn't I seen him, and I said `No, I hadn't, and the only person I had seen was that fellow that day, and I was very much surprised to see it done.' So Mr. Thomas got in the conversation, and he went on to talk to Leo, and I did too, about it, and it was discussed generally back and forth about what should not and should be done between all three of us, and about the bombs. Why Mr. Thomas said that the police had said that tear bombs were dangerous, and I believe to the best of my knowledge, Mr. Miller, that Leo contended they were not. And then it came up again about the union, and Leo said they were not going to allow this union after twenty-years — I remember that very emphatically he said twenty years — to be destroyed, what they had gotten up here in Meridian, and that they were going to have to do something drastic about it. Q. Well what drastic did he say it was? What words did he use? A. Well, he said they were going to blow it to h____l," all of which was substantially corroborated by Thomas, who stated that the appellant there said, among other things, "furthermore, if they don't stop it, we are going to blow the d____mn top off the picture." All of this was denied by the appellant and another witness who claimed to have heard the conversation.
After the appellant was arrested and placed in jail, he cut his wrist, causing it to bleed so severely that it was necessary for a surgeon to stanch the bleeding. On being asked by a police officer why he had cut himself, the appellant answered, "I just can't stand the pressure," and upon the officer telling him that "there wasn't any use in trying to kill himself while he was in jail," the appellant made no reply. The appellant, when testifying, said that he broke a milk bottle and cut his wrist therewith for the purpose of forcing his removal from the jail to a hospital, where he would have an opportunity of communicating with his friends. He had not, however, been denied access to his friends by his custodian. While this evidence is entirely circumstantial, it is amply sufficient to warrant the appellant's conviction.
The appellant complains of the admission of the evidence of the explosion of the stink and tear-gas bombs. The ground of his objection thereto is that these explosions evidenced the commission of crimes other than the one for which the appellant was indicted, and were not relevant to the issue which the jury here had to decide, i.e., whether the appellant placed, or was responsible for the placing of, the fire bomb in the theater. All of these stink and tear-gas bombs were evidently placed in the theater in furtherance of the purpose of the appellant and of members of his union to coerce the owners of the theater into employing union labor only therein, or, at least, the jury were warranted in so finding. The conversation of the appellant with Thomas and Mrs. Terry, if believed by the jury, connected the appellant with these explosions; and the conversation disclosed that it was the intention of the appellant and of members of his union, in the event the tear-gas bombs failed to accomplish their purpose, to "blow the d____n top off the picture show — to blow it to h____l." The tear-gas bombs, therefore, together with the appellant's reference thereto in his conversation with Thomas and Mrs. Terry, point to the appellant as the one who placed or was criminally responsible for the placing of, this fire bomb in the theater. No error, therefore, was committed in permitting the introduction of this evidence.
The district attorney asked a witness who was being examined by him as to the personnel of this theater picket line, this question: "Did you see one Percy Higginbottom?" "Was he one of the pickets around there?" On objection being made to this question, the district attorney said to the trial judge, in the presence of the jury, "I am going to show he went and bought a tear gas bomb to put in that theater." An objection to this statement of the district attorney was sustained, and the trial judge had previously charged the jury not to consider any matter to which he should sustain an objection. The appellant says, however, that this was not sufficient, but that his request then made for a mistrial should have been granted. We will not pause to determine whether this statement of the district attorney was subject to the objection made to it; for if it was, the objection thereto having been sustained, no error was committed in refusing the appellant's request for a mistrial. Logsdon v. State, 183 Miss. 168, 183 So. 503.
The Higginbottom referred to was a member of the appellant's union and a participant in the picketing of the theater, and, according to the state's evidence, was seen several times during the picketing period in earnest conversation with the appellant on the sidewalk on the opposite side of the street and directly across from the theater. He went during the picketing period to a drug store in which Freeman was employed, called him off to one side, according to Freeman, and asked him if he knew how to make tear-gas bombs, to which Freeman answered "no." This evidence was admitted over the appellant's objection, and whether competent or not, was harmless. The introduction of the evidence was for the purpose of connecting the appellant and his associates with the placing of the tear-gas bombs in the theater, but that fact appears from the appellant's conversation with Thomas and Mrs. Terry.
In the cross-examination of the appellant, when testifying as a witness, the district attorney exhibited to him a fifty-dollar bill and said, "I want to ask you if you ever saw this fifty dollars, and did you send this fifty dollars to Mr. Watson to have this fellow Dalton Thomas to leave town and take a vacation before the trial of this case." This question was objected to by counsel for the appellant, but before the court could rule the witness answered it by saying "No, sir." Counsel for the appellant say that notwithstanding this answer of the witness, the question itself was prejudicial to the appellant, being calculated to inflame the minds of the jury against him. They requested the court below not only to instruct the jury to disregard the question, but to enter a mistrial and discharge the jury, both of which the court declined to do. The question itself was unobjectionable, but, of course, should not have been asked unless the district attorney had reason to believe that the incident referred to by him had occurred. The record discloses no further reference to this incident thereafter during the trial.
The jury retired to consider its verdict late on the afternoon of Saturday. During the morning of Monday following, the jury reported to the court that it had failed to reach a verdict, but was directed by the court to return to its room for further consideration of the case. The jury reported again on Tuesday morning that it had been unable to reach a verdict but was again directed by the court to return to its room for the further consideration of the case. Tuesday afternoon the jury again reported that it was unable to reach a verdict, but was again returned to its room for further consideration of the case. The appellant then requested the court to discharge the jury and enter a mistrial, which the court declined to do, stating that each time the jury reported, all of which reports were voluntarily made by it, some of the members thereof thought that the jury might be able to reach a verdict should it further consider the case. At what hour thereafter the verdict of guilty was returned, does not appear.
A jury should be given ample time to consider of its verdict; and how long it should be held together for that purpose is for the decision of the trial judge, which decision will not be disturbed in this court in the absence of the disclosure of such an abuse of this power by the trial judge as indicates that the jury was coerced into returning a verdict. Nothing here so indicates. Had the trial judge told the jury that he would keep it together until it returned a verdict, or had he expressed such an intention out of the presence of the jury, but which was communicated to it, a different question would be presented. The other assignments of error are not of sufficient substance to justify a specific answer thereto.
Affirmed.