Opinion
No. 30024.
June 6, 1932. Suggestion of Error Overruled, June 27, 1932.
1. CRIMINAL LAW.
To authorize reversal of conviction, appellate court must be satisfied that error was committed, and that such error was prejudicial.
2. CRIMINAL LAW.
Where undisputed evidence shows accused's guilt to moral certainty and beyond reasonable doubt, appellate court need not consider trial errors unless so grave as to deny accused's fundamental rights.
3. HOMICIDE. Murder indictment held not demurrable as not charging willfulness and accused's malice aforethought ( Code 1930, section 1265).
The charging part of indictment recided, that accused and another with whom he was jointly indicted did, "unlawfully, feloniously, and of malice aforethought, shoot and mortally wound" person named, "with the felonious intent . . . to kill and murder him." Though indictment did not charge homicide was committed "of their malice aforethought," it was sufficient, since it was manifest that words "malice aforethought" referred to accused and another with whom he was jointly indicted, and because words "felonious intent" include word "willful," and "malicious" includes word "willful."
4. INDICTMENT AND INFORMATION.
Mere formal and technical words are not indispensable to indictment if offense is certainly and substantially described in language having statutory meaning.
5. CRIMINAL LAW. Application for change of venue in murder case held to present prima facie showing for change which state had right to contest by evidence ( Code 1930, section 1265).
Application for change of venue alleged that, by reason of prejudgment of accused's case and grudge or ill will toward him in the public mind, accused could not have a fair and impartial trial in the county where offense was committed.
6. CRIMINAL LAW.
Where entire record shows accused has had impartial trial, he has no right to complain because of denial of change of venue.
7. CRIMINAL LAW.
Trial judge's decision on conflicting evidence on application for change of venue will not be disturbed unless manifestly wrong.
8. CRIMINAL LAW.
Conviction will not be reversed on ground change of venue was refused unless trial court abused discretion.
9. CRIMINAL LAW.
Refusal of change of venue in murder case on ground accused could not have impartial trial in county because of public ill will held not abuse of discretion, under evidence.
APPEAL from the Circuit Court of Forrest County.
F.B. Collins, of Laurel, and Watkins, Watkins Eager, of Jackson, for appellant.
The court erred in overruling appellant's motion for a change of venue. The testimony of the state's own witnesses shows that immediately after the arrest of appellant and Andrew Prince, feeling was sky-high in Forrest county against this defendant.
One of our boasted safeguards which the laws of this country throw around every citizen is that when brought before the bar of justice he shall be entitled to a fair and impartial trial before a jury of unbiased, unprejudiced, and uninfluenced citizens, and be tried before a court equally as unbiased, unprejudiced and uninfluenced.
Tennison v. State, 79 Miss. 708, 31 So. 421; Magness v. State, 103 Miss. 30, 60 So. 8; Keeton v. State, 96 So. 180; Brown v. State, 83 Miss. 645.
The right to trial by an impartial jury is guaranteed by the organic law of the state, and when it is doubtful that such a jury can be obtained in the county of the venue of the homicide, the person on trial for his life is but asking for his rights when he requests a change of venue, and there is no imaginable reason to refuse, except, possibly, a slight additional cost to the county.
Eddins v. State, 70 So. 899.
The court erred in overruling appellant's demurrer to the first count in the indictment, the charging part of which reads as follows: ". . . did then and there in said county and state unlawfully, feloniously and of malice aforethought shoot and mortally wound one J.L. Odom, a human being, with a deadly weapon, to-wit: a pistol, with the felonious intent then and there to kill and murder him, the said J.L. Odom, from the effects of which said wound he, the said J.L. Odom, then and there did die."
This indictment in our opinion charges nothing more than shooting with intent and does not charge murder under either the common law or the statute, with one of which forms it must comply in order to make it valid.
It is proper to adopt either course. It is unnecessary to mingle both forms. When challenged, however, the indictment must be sufficient, according to the one or the other standard. The statutory regulation, prescribing the words in which murder and manslaughter may be charged, is recommended as generally appropriate and prudent.
Nichols v. State, 46 Miss. 284.
The indictment does not allege that the killing was done "wilfully;" the indictment does not allege that the defendant "feloniously, wilfully and of his malice aforethought, killed and murdered" the deceased; the indictment does not allege that even the shooting and mortally wounding was of the malice of the defendant, but merely alleges that it was done "of malice aforethought," without referring to either of the parties indicted.
Section 1211, Mississippi Code of 1930; Louisiana v. Solomon Williams, 37 La. Ann. 776; Nichols v. State, 46 Miss. 284; Anthony v. State, 13 S. M. 263; Buchanan v. State, 53 So. 399; State v. Stelly, 90 So. 390.
The court erred in permitting the district attorney to put a bridle on the witnesses and lead them like leading a donkey to water.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
The trial court was well within the discretion allowed him by the statute in disposing of this motion for a change of venue.
People v. State (Miss.), 33 So. 289; Butler v. State (Miss.), 39 So. 1005; Fisher v. State, 145 Miss. 116, 110 So. 361; Jones v. State, 133 Miss. 684, 98 So. 150; Mackie v. State, 138 Miss. 740, 103 So. 379; Long v. State, 133 Miss. 33, 96 So. 740; Walden v. State, 129 Miss. 686, 92 So. 820; Cummins v. State, 144 Miss. 634, 110 So. 206.
While it is not always necessary to follow the literal language of the act in framing indictments for statutory offenses, it is essential that either the same words, or words equivalent in meaning and synonymous, should be used.
Roberts v. State, 55 Miss. 421; Richburger v. State, 90 Miss. 806, 44 So. 772; State v. Presley, 91 Miss. 377, 44 So. 827; State v. Traylor, 100 Miss. 544, 56 So. 521.
In alleging a statutory offense, the language of the statute or its equivalent must be used, and "where the language is so specific as to give notice of the act made unlawful, and so exclusive as to prevent its application to other acts, it is sufficient to charge the offense by using only the words of the statute."
2 Miss. Digest 695; Sullivan v. State, 67 Miss. 346, 7 So. 275; State v. Bardwell, 72 Miss. 535, 18 So. 377; Richburger v. State, 90 Miss. 806, 44 So. 772; State v. Hinton, 139 Miss. 513, 104 So. 354; State v. May, 147 Miss. 79, 112 So. 866.
Technical law is a good law under proper circumstances, but not where it shocks common sense. The exact language of a statute need not be used, where what is tantamount is fully set out.
State v. Presley, 91 Miss. 377, 44 So. 827.
Alexander Currie, District Attorney, of Hattiesburg, for the state.
Every statutory element of the crime of murder is charged in this indictment. The word "maliciously" has been held sufficient in an indictment though the statute uses the word "wilfully," it being declared that the word "maliciously" implies wilfullness.
Lyons v. Commonwealth, 178 Ky. 657; Gregory v. Commonwealth (Ky.), 218 S.W. 999; State v. Robbins, 66 Me. 324; Flinn v. Commonwealth, 81 Ky. 186; Funderburk v. State, 75 Miss. 20, 21 So. 658; Ousley v. State, 122 So. 731; Glover v. People, 204 Ill. 170, 68 N.E. 464; State v. Williams, 129 Iowa 72, 105 N.W. 355; White v. White, 132 Wis. 121, 111 N.W. 1116; Daniels v. State, 76 Ark. 84, 88 S.W. 844.
The indictment in the case at bar uses the word "feloniously," and that word is defined to mean "proceeding from an evil heart or purpose."
Ewing v. Commonwealth, 129 Ky. 237; State v. Commonwealth, 94 P. 199; State v. Allen, 34 Mont. 403; Freeman v. State, 57 S.E. 924; Section 1369, Mississippi Code of 1930; State v. Edmunds, 20 S. Dak. 135.
The use of the word "feloniously" has been uniformly held to be a sufficient averment of the intent necessary to constitute the crime.
People v. Willett, 102 N.Y. 251, 6 N.E. 301; People v. Conroy, 97 N.Y. 68; Aikman v. Commonwealth (Ky.), 18 S.W. 937.
The indictment in the case at bar specifically charges that the shooting was done "with the felonious intent then and there to kill and murder him, the said J.L. Odom."
We respectively submit that the indictment meets every requirement of the statute.
People v. Steventon, 9 Cal. 273, 275; Cavatt v. Territory, 98 P. 890, 893.
There is in this state no constitutional right of change of venue. It is regulated by statute, and the statute vests in the presiding judge the discretion to grant the change of venue or not, and the action of the judge in refusing to grant a change of venue, while subject to review, cannot be reversed unless there has been a manifest abuse of discretion.
Stewart v. State, 50 Miss. 587; Bishop v. State, 62 Miss. 289; Regan v. State, 87 Miss. 422; Dalton v. State, 141 Miss. 105.
Appellant, a white man, and Andrew Prince, a negro, were jointly indicted in the circuit court of Forrest county for the murder of J.L. Odom. There was a severance and each tried separately. Andrew Prince was first tried, convicted, and sentenced to be hanged. The appellant was then tried, convicted, and sentenced to be hanged, from which judgment he prosecutes this appeal.
This case is unusual in at least one respect, there was no conflict whatever in the evidence as to appellant's guilt. Every fact and circumstance given in evidence pointed unerringly to his guilt. Appellant did not testify and offered no evidence. In brief, the facts were these: The deceased, J.L. Odom, conducted the Standard Oil filling station at the corner of Hardy street and Eleventh avenue in the city of Hattiesburg. Between seven and eight o'clock on the night of December 9, 1931, the negro, Andrew Prince, armed with a pistol, went to the filling station conducted by Odom, there he found Odom alone, and commanded him to throw up his hands, which Odom refused to promptly do, whereupon Prince shot him to death, robbed the cash drawer of the filling station, taking therefrom twenty-odd dollars in money and some checks, which he delivered to appellant; afterwards the money was divided between the two. At the time the murder took place appellant was sitting in his car a short distance from the scene, waiting for Prince to rob the station. Appellant gave Prince the pistol with which Odom was killed. Appellant induced Prince to rob the filling station, and instructed him, if necessary in order to do so, to kill Odom. In other words, appellant was an accessory before the fact of the murder; he was the moving cause; he planned the murder, provided it was necessary in order to accomplish the robbery.
Appellant assigns as error the action of the court in refusing certain instructions requested on his behalf, the giving of certain instructions for the state, the admission of certain testimony over appellant's objection, and the misconduct of Holmes, one of the attorneys representing the state, in his argument of the case before the jury. It is doubtful whether the court committed any error in the giving and refusing of instructions, and the admission of testimony. The court promptly sustained an objection to the argument of Holmes, upon the ground that it was improper. Under the undisputed facts of this case, if it be true that the court erred in the giving and refusing of instructions, and the admission of testimony, as claimed by appellant, and that Holmes was guilty of misconduct in the argument of the case, they were errors which did appellant no harm whatever. Before this court will reverse a cause, it must be satisfied of two facts: First, there must be error; and, second, the error must be prejudicial to the appellant. Jones v. State, 104 Miss. 871, 61 So. 979, L.R.A. 1918B, 388; Patterson v. State, 106 Miss. 338, 63 So. 667; House v. State, 121 Miss. 436, 83 So. 611; Calicoat v. State, 131 Miss. 169, 95 So. 318; Lewis v. State, 132 Miss. 200, 96 So. 169; Goins v. State, 155 Miss. 662, 124 So. 785; Comings v. State (Miss.), 142 So. 19.
In House v. State, supra, the court held that, where, in a murder trial, the guilt of the defendant was manifest from the evidence, and the jury under their oaths could not have arrived at any other verdict than that of guilty, it was not reversible error for the district attorney in his argument to comment on the fact that the defendant had not testified, notwithstanding such comment was prohibited by section 1918, Code 1906 (now Code 1930, section 1530).
If this were a civil case, the plaintiff would be entitled to a directed verdict in its favor. As stated above, this is a case where the evidence shows without dispute the guilt of the defendant to a moral certainty and beyond every reasonable doubt. Every material fact and circumstance in the case points to the guilt of appellant. On the other hand, there is no fact or circumstance in evidence which points to his innocence; therefore the jury, under the law and the evidence, could not have justly reached any other verdict than that of guilty. In such a case there is no use considering errors committed by the court in the conduct of the trial, unless they be so grave as to deny the defendant the benefit of some fundamental right.
Appellant argues that his fundamental rights were violated in this: (1) That he was tried on an indictment that was void — it charged no offense; (2) that the people of Forrest county, where he was tried, had prejudged his case, and for that reason he was entitled to a change of venue, which was denied him.
Appellant demurred to the indictment. The court overruled the demurrer. Appellant assigns and argues that action of the court as error. The charging part of the indictment is in this language: "Did then and there, in said county and state, unlawfully, feloniously, and of malice aforethought, shoot and mortally wound one J.L. Odom, a human being, with a deadly weapon, to-wit: a pistol, with the felonious intent then and there to kill and murder him, the said J.L. Odom, from the effect of which said wound he, the said J.L. Odom, then and there did die." The statutory form is in this language: "1211. Indictment — requisites of in cases of homicides. — In an indictment for homicide, it shall not be necessary to set forth the manner in which or the means by which the death of the deceased was caused, but it shall be sufficient to charge in an indictment for murder, that the defendant did feloniously, willfully, and of his malice aforethought, kill and murder the deceased. And it shall be sufficient, in an indictment for manslaughter, to charge that the defendant did feloniously kill and slay the deceased, concluding in all cases as required by the constitution."
Appellant argues that the indictment fails to meet the requirements of the statute in the following respects: (1) It does not allege that the killing was done willfully; (2) the indictment does not allege that the homicide was committed of appellant's malice aforethought, but only alleges "was committed of malice aforethought;" (3) "because the indictment does not allege that the shooting and the mortally wounding was of the malice of the defendant, but merely alleges that it was done of malice aforethought, without referring to either of the parties indicted." We think the language used in the indictment is equivalent in meaning to the statutory language. Mere formal and technical words are not indispensable if the offense is certainly and substantially described in language meaning the same as that set out in the statute. State v. May, 147 Miss. 79, 112 So. 866; State v. Traylor, 100 Miss. 544, 56 So. 521; Richburger v. State, 90 Miss. 806, 44 So. 772; State v. Presley, 91 Miss. 377, 44 So. 827; Harrington v. State, 54 Miss. 490; Roberts v. State, 55 Miss. 421; Kline v. State, 44 Miss. 317, 2 Mor. St. Cas. 1695.
In State v. Presley, supra, the court said: "Technical law is good law under proper circumstances, but not where it shocks common sense. . . . The exact language of a statute need not be used, where what is tantamount is fully set out." The words "felonious intent" include the word "willful," and the word "malicious" includes the word "willful." Bishop Crim. Procedure (2 Ed.), p. 613 (7), and authorities there cited.
As stated, appellant and Prince were jointly indicted. The indictment, instead of charging that the homicide was committed of their malice aforethought, charged that it was committed "of malice aforethought." The ordinary mind in reading the indictment would at once supply the word "their," because it is manifest from a reading of the whole indictment that the words "malice aforethought" refer to appellant and Prince, the two persons indicted.
Appellant made an application for a change of venue, supported by the affidavits of the number of credible persons required by the statute, section 1265, Code 1930. In his application he set out that, by reason of prejudgment of his case and grudge or ill will toward him in the public mind, he could not have a fair and impartial trial in Forrest county, where the offense was committed. This presented a prima-facie showing for a change of venue, which the state had a right to contest by the evidence of witnesses. Magness v. State, 103 Miss. 30, 60 So. 8. On the hearing of the application the state introduced sixteen witnesses, all of whom testified that in their judgment there had been no prejudgment of appellant's case; that there was no grudge or ill will toward him in the public mind; and that he could have a fair and impartial trial in Forrest county. Upon cross-examination the witnesses admitted that shortly after the homicide there was considerable feeling manifested by the public; that a crowd gathered at the jail where appellant and Prince were imprisoned; that the public press gave considerable publicity to the homicide; that on account of this feeling appellant and Prince were lodged in the jail of another county and there remained until the day before the trial when they were brought back to the jail in Forrest county; that a good deal of interest was manifested at the trial; that the courtroom was filled, but that at the time of the trial the public interest and feeling had subsided; that the state of the public mind was not so much one of ill will against appellant and Prince, but against the dastardly crime that had been committed, and that the interest of the public was to find the guilty parties.
Where the entire record in a murder case, viewed from its conclusion and as an entirety, shows that the defendant has had a fair and impartial trial, free from bias and prejudice, the defendant has no right to complain because he was denied a change of venue, and, where the evidence is conflicting, the decision of the trial judge thereon will not be disturbed unless manifestly wrong. Walden v. State, 129 Miss. 686, 92 So. 820; Long v. State, 133 Miss. 33, 96 So. 740; Jones v. State, 133 Miss. 684, 98 So. 150; Mackie v. State, 138 Miss. 740, 103 So. 379.
In the Jones case, on the application for a change of venue, the testimony of several witnesses was taken, including the publishers of two newspapers in the county who introduced the files of their papers giving an account of the confessions of guilt made by Jones. One of the publishers testified that his paper had a circulation in the county of about fifteen hundred, and the other that his paper had a circulation of about one thousand. Various persons residing in the county, from different parts of the county, testified that they had heard of the defendant's confessions, and that the matter had been discussed in their several communities, but nearly all of the witnesses testified that they believed the defendant could get a fair and impartial trial, and that they did not believe there was any more notoriety or prejudgment of the defendant's case than in other murder cases in the county. The trial court denied a change of venue, and the supreme court held it committed no error in doing so.
The granting of a change of venue is so largely in the discretion of the trial court that a judgment of conviction will not be reversed on appeal, on the ground that a change of venue was refused, unless it clearly appears that the trial court abused its discretion. Dalton v. State, 141 Miss. 841, 105 So. 784.
We cannot see that the trial court abused its discretion in refusing to grant appellant a change of venue. The judgment of the lower court is affirmed, and Thursday, July 14, 1932, is fixed for the day of execution.
Affirmed.