Opinion
No. 38317.
February 11, 1952.
1. Robbery — with firearms — evidence sustained conviction.
Evidence sustained conviction of robbery with firearms. Sec. 2636, Code 1942.
2. Criminal procedure — trial — witnesses — rule — permitting defense counsel — to confer with.
Permitting counsel to confer with witnesses after rule has been invoked and they have been excluded from courtroom is generally within the sound discretion of trial court in absence of abuse of such discretion and probable prejudice to defendant, and the propriety of trial court's ruling on a request to confer with such witnesses must necessarily be based upon the particular facts of each case.
3. Criminal procedure — trial — witnesses — permitting defense counsel to confer with witnesses "altogether."
The denial by trial court of request by defense counsel that they be allowed a conference with all defendant's witnesses "altogether" after the rule had been invoked, the State had rested and defendant had introduced some evidence, was not error where Court allowed counsel all the time reasonably necessary to confer in presence of defendant with witnesses but not "altogether."
4. Robbery — armed robbery statute — not invalid.
Armed robbery statute is not invalid. Sec. 2367, Code 1942.
Headnotes as revised by Ethridge, J.
APPEAL from the circuit court of Leflore County; ARTHUR JORDAN, Judge.
L. Percy Quinn, G.L. Martin, Colin L. Stockdale, Jackson, for appellant.
I. The Trial Court committed reversible error when it refused and denied the defendant and his attorneys the right to confer with the witnesses for the defendant all together, the denial and refusal of which fundamental rights deprived the defendant of his rights under the Due Process clause and the Equal Protection of the Law clause of the Fourteenth Amendment to the United States Constitution; and of his rights under Section 14, Section 24, Section 26, of the Mississippi Constitution, and due process of law. Allen v. State, 61 Miss. 627; Powell v. Alabama, 287 U.S. 45; Shaw v. State, 79 Miss. 21, 24, 30 So. 42; White v. State, 52 Miss. 216; Sec. 26, Constitution 1890.
II. The lower court was in error in overruling the motion for new trial; in error in refusing peremptory instructions for appellant; the verdict and judgment are contrary to the law and the competent evidence; and are against the weight of the evidence; the jury was in error in accepting the testimony of Kirby Mitchell as true; and the Court was in error in failing to set aside the verdict and grant new trial or discharge appellant. Abele v. State, 138 Miss. 772, 782, 103 So. 370; Browning v. State, 30 Miss. 656, 671; Rutledge v. State, 171 Miss. 311, 157 So. 907, 908; 22 C.J.S., Sec. 808 p. 1388.
III. The State's Instruction Number 2 is erroneous. Dean v. State, 85 Miss. 40, 37 So. 501; Fleming v. State, 142 Miss. 872, 108 So. 143; Osborne v. State, 99 Miss. 410, 55 So. 52, 54; Wages v. State, 210 Miss. 187, 49 So.2d 246; Secs. 1995, 2367, Code 1942.
IV. The Trial Court was in error in overruling the demurrer to the indictment, and thus denied the appellant due process of law both under Mississippi Constitution and under the Equal Protection of the Laws clause and the Due Process of Law clause of the Fourteenth Amendment to the United States Constitution. State v. Sims, 80 Miss. 381, 386, 31 So. 907; State v. Snowden, 164 Miss. 613, 145 So. 622; Secs. 26, 28, Constitution 1890; Sec. 1126, Code 1930; Secs. 2215, 2217, 2367, 2368, Code 1942.
V. The Court was in error in overruling motion for new trial. McDowell v. State, 68 Miss. 348, 8 So. 508; Vol. 2, Bishop's New Criminal Law, Sec. 1169 (1) p. 671.
Joe T. Patterson, Asst. Atty. General, Jackson, for appellee.
I. Cited and discussed the following authorities:
Boutwell v. State, 167 Miss. 16, 143 So. 479; Clanton v. State (Miss.), 49 So.2d 267; Garvin v. State, 207 Miss. 751, 43 So.2d 209; Ivy v. State, 206 Miss. 734, 40 So.2d 609; Larry v. State, 211 Miss. 563, 52 So.2d 292; Lifer v. State, 189 Miss. 754, 199 So. 107; Matthews v. State, 148 Miss. 696, 114 So. 816; Minneweather v. State (Miss.), 55 So.2d 160; Passons v. State, 208 Miss. 545, 45 So.2d 131; Phillips v. State (Miss.), 43 So.2d 208; Watson v. State, 166 Miss. 194, 146 So. 122; Secs. 2356, 2367, Code 1942.
Appellant, Earl Scott, was convicted in the Circuit Court of Leflore County of robbery with firearms under Code of 1942, Section 2367, and sentenced to fifteen years in the State penitentiary. See also Code Secs. 1995, 1996.
(Hn 1) The verdict and judgment are amply supported by the evidence. The question of appellant's guilt vel non was one for the jury, and the trial court properly denied a requested peremptory instruction and a motion for a new trial.
After the State had rested and appellant had put on four witnesses as to the reputation for truth and veracity of the chief witness for the State, an accomplice of appellant in the crime, appellant's attorneys made a motion that they be allowed a conference with all of the appellant's witnesses "altogether." In denying the motion, the trial court said:
"When the witnesses were sworn before the taking of testimony began, counsel for Defendant stated to the Court that he wished the rule invoked, whereupon, the rule was invoked and all the witnesses I think, with the exception of the witnesses to the general reputation of Kirby Mitchell, were sworn and caused to be retired from the courtroom.
"The Court will now allow counsel all the time reasonably necessary for him and his associate and his client to confer with the witnesses but not altogether. The Court will allow you such time as appears to be necessary and of course in the presence of the accused, to confer with the witnesses. That is the ruling of the Court."
(Hn 2) Appellant assigns as error this action of the trial court. However, in denying appellant's attorneys the right to confer with their witnesses "altogether," the court expressly granted to appellant all the time reasonably necessary to confer with the witnesses "but not altogether." Appellant made no showing of how or in what respects he would be prejudiced by that ruling of the court. Although the court assigned as a reason the fact that appellant had put all of the witnesses under the rule, and this would not usually be the proper basis for such action, it is apparent that the court's ruling at that stage of the trial was based also on a desire to conserve time and to expedite the hearing. Such matters are generally within the sound discretion of the trial court, in the absence of a showing of abuse of that discretion and of probable prejudice to defendant. 23 C.J.S., Criminal Law, Sec. 1010, p. 380; 53 Am. Jur., Trial, Secs. 31-33; Graham v. State, 1943, 195 Miss. 291, 15 So.2d 478; see also Griffith, Mississippi Chancery Practice, 2d ed. 1950, Sec. 562, note 37.
(Hn 3) The cases relied upon by appellant, White v. State, 1876, 52 Miss. 216; Allen v. State, 1884, 61 Miss. 627, and Shaw v. State, 1901, 79 Miss. 21, 30 So. 42, are not applicable, because there the trial courts wholly refused to permit defendants' attorneys to confer with witnesses. There was no such refusal here, but on the contrary the court expressly granted counsel the right to confer with the witnesses, but at that late stage in the trial denied a conference with the witnesses "altogether." Appellant's attorneys dictated nothing in the record and made no showing whatever which would indicate that appellant was prejudiced by the court's action. The record does not indicate prejudice, and we cannot assume it. The propriety of a trial court's ruling on such a request must necessarily be based upon the particular facts of each case, and under the present circumstances we do not think the court was in error.
(Hn 4) Appellant attacks the validity of the armed robbery statute, Code of 1942, Section 2367, but that statute has been upheld consistently in the past. Hall v. State, 1933, 166 Miss. 331, 148 So. 793; Boggan v. State, 1936, 176 Miss. 655, 170 So. 282; Cittadino v. State, 1945, 199 Miss. 235, 24 So.2d 93. Also, the indictment was sufficiently within the statute, and the State's instruction No. 2 was proper.
Affirmed.
McGehee, C.J., and Alexander, Holmes and Arrington, JJ., concur.