March 7, 1932.
1. CRIMINAL LAW.
Objection that foreman of grand jury did not indorse name on indictment could not be raised for first time on appeal (Code 1930, sections 1193, 1198, 1206).
2. CRIMINAL LAW.
Opinion of witness familiar with racial mixture as to race is competent.
3. CRIMINAL LAW.
Supreme Court must consider evidence offered on behalf of state most favorably in determining whether to reverse conviction.
4. CRIMINAL LAW.
Testimony of accomplice alone, uncorroborated, is sufficient to sustain conviction.
Evidence, including testimony of accomplice, held sufficient to sustain conviction for murder.
In prosecution for murder of mulatto baby born to white woman, evidence of illicit relations between mother and defendant negro held competent to show motive for crime.
7. CRIMINAL LAW.
In prosecution for murder of mulatto baby, that district attorney in argument called jury's attention to fact that defendant negro was making eyes at white mother of deceased while mother was witness held not reversible error, in view of court's admonition to attorney to stay within record.
8. CRIMINAL LAW.
Trial court cannot be put in error on matter not presented to it.
9. HOMICIDE. Instruction in murder prosecution held not objectionable for omitting words "with malice aforethought" or their equivalent, and in failing to state that poison was administered without authority of law.
Instruction was not objectionable, since it told jury that, if the substance was administered unlawfully for purpose of producing death of deceased with deliberate intention of producing his death, defendant was guilty of murder, and furthermore the poison could not have been administered to the deceased, a baby three months old, with the deliberate intention of producing its death, without it being unlawful.
ANDERSON and GRIFFITH, JJ., dissenting.
APPEAL from circuit court of Lauderdale county. HON. J.D. FATHEREE, Judge.
S.C. Broom, of Jackson, for appellant.
Ordinarily a conviction may be had upon the uncorroborated evidence of an accomplice, but, where the accomplice is barely intelligent enough to be a witness, and where his reputation for truth and veracity has been successfully impeached by unimpeached witnesses, and where such evidence is not corroborated sufficiently, and where there is strong testimony of an alibi by numerous witnesses, a conviction on such testimony of such impeached witness, will not be upheld.
Hunter et al. v. State, 102 So. 282.
We submit that human life is so sacred as to require a much higher degree of proof than is here submitted, especially when a man much higher and more satisfactory degree of proof was or should have been available. There should have been a post mortem and an analysis which would have disclosed in all probability the kind and character of poison administered. Then, it would have been an easy matter to check up on this poison and ascertain from whence it came and by whom obtained.
It cannot be said that the witness was uncontradicted because the defendant did not take the stand and deny her statement because to take this position is equivalent to a comment upon his failure to testify and is certainly an improper inference to make from his failure to testify. As a practical proposition under circumstances of this kind, the court knows the utter futility of a negro testifying in a case such as this.
Powell, Harper Jiggitts, of Jackson, for appellant.
It is essential under the laws of Mississippi that an indictment be endorsed or signed by the foreman of the grand jury. Failure in this regard is fatal error, and renders the indictment bad and void.
Cody v. State, 3 How. 27; Kirk v. State, 13 S. M. 406; Moore v. State, 13 S. M. 259; Peter v. State, 3 How. 433.
It is not necessary to make a motion to quash an indictment in the lower court where the prosecutor's name is not marked on said indictment, as said indictment is fatal for such failure, and the highest court will reverse for such fatal defect regardless of whether or not a motion to quash was made in the lower court.
Kirk v. State, 13 S. M. 406; Jesse v. State, 28 Miss. 100.
The question of the indictment being fatal because of the failure of the prosecutor to sign same is jurisdictional, and will therefore be considered for the first time on appeal.
Jurisdictional matters may be raised for the first time in the Supreme Court.
Kyle v. Calhoun City, 123 Miss. 542; Cagle v. State, 106 Miss. 831; Norwood v. State, 129 Miss. 813; Dorsey v. State, 143 Miss. 600; Norris v. State, 143 Miss. 365; Ussery v. State, 154 Miss. 704.
It is essential to a valid indictment that it contain a proper caption.
Carpenter v. State, 4 How. 163, 24 Am. Dec. 116; Kelly v. State, 3 S. M. 518; Sam v. State, 13 S. M. 189; Thomas v. State, 5 How. 20.
This court has held that the accused cannot waive objections to a void indictment.
Newcomb v. State, 37 Miss. 383; Buchanan v. State, 97 Miss. 839; State v. Coulter, 104 Miss. 764; Taylor v. State, 74 Miss. 544; Herron v. State, 118 Miss. 420.
It was fatal error for the district attorney, during his closing argument, to make use of the following words:
"While the witness, Mrs. Louella Williamson, was testifying, did you see him making eyes at her?"
Cavanah v. State, 56 Miss. 299; Martin v. State, 63 Miss. 505; Turner v. State, 94 Miss. 458, 48 So. 409; Story v. State, 133 Miss. 476; Darby v. State, 121 Miss. 869; De Jean v. State, 108 Miss. 146; Roby v. State, 147 Miss. 575, 113 So. 185.
Improper argument of counsel which will materially prejudice the minds of the jury against the accused is a substantial wrong done him in the trial, for which there must be a reversal.
Story v. State, 133 Miss. 476; Roby v. State, 147 Miss. 575.
Refusal of instruction that malice aforethought was necessary element of murder, etc., the jury should find not guilty was reversible error.
Burnette v. State, 92 Miss. 826.
Malice is a necessary element of murder.
Guest v. State, 96 Miss. 871; 14 R.C.L. page 772, section 39; Brett v. State, 94 Miss. 669, 47 So. 781.
There is also also another fatal defect in the instruction in that the instruction fails to use the words "without authority of law."
Section 985, Code of 1930.
Where the law governing a case is expressed in a statute the court charging the jury should use the words "there employed."
14 R.C.L. page 722, sec. 29; Ivey v. State, 84 Miss. 264, 36 So. 265; Rutherford v. State, 100 Miss. 832.
The fact that the defendant was or was not the father of the purported mulatto baby did not have any bearing on this case, and the parentage was not a crime involved in this matter.
The evidence of certain witnesses as to the parentage of the infant was purely opinion evidence and should not have been admitted.
Wells v. Skripp, Walker 353; Bloom v. McGarth, 53 Miss. 249; Cumberland Tel. Tel. Co. v. Odeneal, 26 So. 966; Majors v. State, 83 Miss. 439.
An insane person or idiot is not a competent witness.
Phebe v. Prince, Walker 131.
The testimony of Luella Williamson, being an accomplice, should be weighed with great caution.
Fitzcox v. State, 52 Miss. 923; White v. State, 52 Miss. 216.
Insufficient evidence is, in the eye of the law, no evidence.
State v. Galbo, 2 A.L.R. 1220.
The general rule in this country is that the corpus delicti cannot be established by the confession of the accused, unsupported by corroborated evidence, and a conviction had upon such erroneous evidence cannot be sustained.
Wharton, Criminal Law (1 Ed.), Vol. 1, page 449, sec. 357; 6 Am. Eng. Law (2 Ed.), page 582; Bines v. State, 118 Ga. 320, 68 L.R.A. 33, 45 S.E. 376, 12 Am. Crim. Rep. 205; Priest v. State, 10 Neb. 393; Smith v. State, 17 Neb. 358.
Where the corpus delicti is not proven by independent testimony, extra judicial confessions of the accused are insufficient to warrant conviction.
Stringfellow v. State, 26 Miss. 157; Winslow v. State, 76 Ala. 42; State v. German, 54 Mo. 526; U.S. v. Mayfield, 59 Fed. 118.
Although this court may be reluctant to reverse this case after it has been passed upon by the jury, still if the evidence is inconclusive, and if a great injury would be done by sustaining the verdict of the jury, this court should, we submit, in the interest of highest justice, set aside the verdict of the jury and reverse its findings.
Byrd v. State, 154 Miss. 742; Horn v. State, 60 So. 1011; Sykes v. State, 45 So. 838; Brown v. State, 121 So. 297; Lefere v. Krohn, 127 Miss. 305; Williams Yellow Pine Co. v. Henley, 155 Miss. 893; Mobile O.R. Co. v. Cox, 153 Miss. 597.
S.D. Redmond, of Jackson, for appellant.
The judgment of the court below is contrary to every material fact. The verdict then being based upon evidence that is so insufficient to support it, so contrary to all the evidence and to instructions as given to the jury by the court, the question is shall this court uphold a verdict so rendered and permit the very grossest injustice?
That the court has a right, and that it is its duty to set aside the sentence of the court below, has been long settled by all of the authorities.
4 C.J. 856, par. 2835; 2 R.C.L. 197; State v. Pienick, ___ Wash. ___ (1907), 90 P. 645, 11 L.R.A. (N.S.) 987; State v. Brown, 102 P. 641; 24 L.R.A. (N.S.) 545, at page 551; State v. Smart, 4 Richardson's Law (So. Carolina) 356, 55 Am. Dec. 683 at 686; Allen v. Young, 6 T.B. Monroe, 136.
The indictment was insufficient and therefore fatally defective. The indictment was not signed by the foreman of the grand jury in any manner or form and no attempt at correcting this fatal error was made.
Section 1174, Hemingway Mississippi Code, 1917; Stanford v. State, 76 Miss. 257, 24 So. 536; Easterling v. State, 35 Miss. 210; Fitzcox v. State, 52 Miss. 923; Jackson v. State, 55 Miss. 530; Cochran v. Commonwealth, 275 S.W. 810, 210 Ky. 332; Bowilvey v. Commonwealth, 19 S.W. 1086, 230 Ky. 387; Banks v. State, 13 Ala. App. 41, 69 So. 242; Layton v. State, 124 So. (Ala.) 406; Whitley v. State, 52 So. (Ala.) 203; Winston v. State, 52 Ala. 420; State v. Bay, 148 La. 559, 87 So. 294; State v. Morrison, 30 La. Ann. 817; State v. Logan, 104 La. 254, 28 So. 912; State v. Wilson, 126 La. 664, 52 So. 981.
Grand Jurors must be "elected," and the indictment does not show that the grand jurors were "elected" to inquire, etc., into this case.
McBean v. State, 3 Heis. (Tenn.) — State v. Faid, 21 Wis. 610.
The caption of the indictment should show that the grand jurors were "summoned and returned as such," and that they were "duly organized at a term of court then in session," but this indictment does not show these things.
Corillo v. State, 81 Tex. Cr. 636, 197 S.W. 998; State v. Jones, 9 N.J.L. 357, 17 Am. Dec. 483.
The indictment must set out the style of the case. The style of the case is not set out in the case at bar.
Holt v. State, 47 Ark. 196, 1 S.W. 61; Greeson v. State, 6 Miss. 33; State v. Blakeley, 83 Mo. 359; Savage v. State, 18 Fla. 909; State v. Coverly, 51 N.H. 446.
The date alleged in the indictment and the date undertaken to be shown by the evidence are at such great variance that they prejudice the rights of appellant.
Billingsley v. N.S., 274 Fed. 86.
The lower court committed reversible error in permitting the state to show over defendant's objection other crimes alleged to have been committed by him.
Raines v. State, 81 Miss. 489, 33 So. 19; Collier v. State, 106 Miss. 613, 64 So. 373; Smith v. Texas, 73 S.W. 401; Harden v. State, 101 So. 442; Doss v. State, 126 So. 197; King v. State, 6 So. 189-190; 10 R.C.L. 939.
The inflammatory remarks of counsel in argument to the jury, unwarranted by the evidence and tending to arouse hatred or race prejudice to the adverse party, caused a gross miscarriage of justice.
Hardaway v. State, 99 Miss. 223, 54 So. 833; State v. Brown, 148 La. 357, 86 So. 912; Collins v. State, 100 Miss. 435, 56 So. 527; Clark v. State, 102 Miss. 768, 59 So. 887; Jones v. State, 21 Ala. App. 234, 109 So. 189; Hampton v. State, 88 Miss. 257, 40 So. 545.
Defendant was not given a fair and impartial trial as is shown by the district attorney constantly attempting to show by state witnesses that defendant was a Negro and was the father of a child by Mrs. Louella Williamson, a white woman, and his referring to them as such.
Harris v. State, 113 So. 318; Tannehill v. State, 159 Ala. 51, 48 So. 662.
The circuit court did not protect defendant's right when it permitted persons, who had not qualified as ethnological experts and who had not shown that they had ever seen six colored people or were familiar with the features of colored people, to testify that James Walton Williamson, the deceased, was a mulatto, as such testimony was merely an opinion or conclusion.
The race of a person is material only in miscegenation cases.
Jones v. State, 156 Ala. 175, 47 So. 100; Garvini v. State, 52 Miss. 207; Linton v. State, 88 Ala. 216, 7 So. 261; Fonville v. State, 8 So. 688; Page v. State, 133 So. 216.
The circumstances in this case are identical to those in Byrd v. State, 123 So. 876.
Where one person forcibly causes another person to take the life of another both are guilty of murder. But the party who causes the homicide must actually force the other party to act and the party committing the murder must be conscious of the force at the time of the murder and act from fear.
For the defendant to be guilty of murder the testimony must show that he acted intentionally, feloniously, and with malice aforethought, and the court must so instruct.
Smith v. State, 91 So. (Miss.) 41; Brown v. State, 115 So. (Miss.) 433.
While a conviction may be had on the uncorroborated testimony of an accomplice, the courts of this state are committed to the doctrine that it is proper for the court to instruct the jury that the testimony of an accomplice is to be weighed with caution.
White v. State, 52 Miss. 216; Fitzcox v. State, 52 Miss. 923; Green v. State, 55 Miss. 454; Cheatham v. State, 67 Miss. 335, 7 So. 204, 19 Am. St. Rep. 310; Wilson v. State, 71 Miss. 880, 16 So. 304; Osborne v. State, 99 Miss. 410, 55 So. 52; Dedeaux v. State, 125 Miss. 326, 87 So. 664; Wilson v. State, 71 Miss. 880, 16 So. 304; People v. Sapp, 118 N.E. 416, 282 Ill. 51; Commonwealth v. Haines, 101 A. 641, 257 Pa. 289.
W.A. Shipman, Assistant Attorney-General, for the state.
The verdict of the jury is assuredly warranted by the evidence. If the jury believe the woman's testimony, it was the inescapable conclusion that the appellant was guilty.
It is the province of the jury to determine the credit due to a witness, and the verdict will not be set aside if the evidence sustains it.
Hughes v. State, 2 Miss. Dec. 88; Owens v. State, 63 Miss. 450; Osborne v. State, 55 So. 52; Pederre v. State, 54 So. 721; Cheatam v. State, 67 Miss. 335; Hemingway v. State, 68 Miss. 371; Molphys v. State, 124 Miss. 584; Hardy v. State, 143 Miss. 352.
It is held in Hays v. State, 96 Miss. 153 that "an objection to an indictment based on the ground that the grand jury was not sworn is not well taken, when first raised after conviction on motion in arrest of judgment," under the next above cited section of the code, when such defect or omission might have been raised before verdict.
Boroum v. State, 105 Miss. 897; Stewart v. State, 151 Miss. 649; Wilcher v. State, 152 Miss. 13; Code of 1906, section 1413 (Code 1930, section 1193); section 1418, Code of 1906; section 1198, Code of 1930.
Where the nature and cause of the accusation sufficiently appear from the whole indictment, the omission therefrom, because of a manifestly clerical error of an otherwise essential word will not render the indictment bad.
Smith v. State, 132 Miss. 521; Wooten v. State, 155 Miss. 726.
The failure of the foreman of the grand jury to indorse his name on the indictment presents no greater, other or different problem than does the failure of the clerk to mark it filed, date it, and sign it. The statutes are in pari materia and must be construed together. Wherefore, it follows that the objection may not be raised and successfully urged for the first time on appeal in the Supreme Court.
Wooten v. State, 155 Miss. 726.
There is nothing inflammatory or even improper in this interrogatory propounded to the jury by the district attorney.
Stewart v. State, 64 Miss. 626.
Much latitude is accorded to the discussion of counsel in performing the important duties which they owe to clients and to public justice.
Martin v. State, 63 Miss. 505.
It is not, however, every argument that is improper that will cause a reversal of a case.
Matthews v. State, 148 Miss. 696; Redwine v. State, 149 Miss. 741; Cotten v. State, 135 Miss. 729; Allen v. State, 144 So. 352; Gray v. State, 90 Miss. 235; Note 139, Underhill Cr. Ev. p. 90.
The defendant is a colored man, and the jury upon looking at him could see it. To call him a negro made it no plainer to the jury than it was already.
Gore v. State, 155 Miss. 306.
Persons familiar with the negro race, as to the mixture of negro blood in particular persons may testify concerning the same.
1st Wharton Cr. Ev., p. 843; Section 53, Underhill Cr. Ev. (2 Ed.); State v. Jacobs, 51 N.C. 282.
While in doubtful cases only an expert would be qualified to testify from the appearance of a person as to the exact extent to which white and negro blood are commingled in his veins, it does not require any peculiar scientific knowledge to be able to detect the presence of African blood by the color or other physical qualities of the person.
Hopkins v. Bowers, 111 N.C. 175; State v. Jacobs, 51 N.C. 282; Hare v. Board of Education, 113 N.C. 9.
The record herein fails to show the slightest whisper of a denial of the Williamson woman's testimony. In this situation counsel are driven to the desperate recourse of attempting to show that she is imbecile, incapable of appreciating the nature of an oath; that her tale is too unreasonable to receive any credit, and on the bare assertion of counsel to ask this court to set aside the verdict of the jury and the judgment of the trial court.
The court gave instruction number 23 for the appellant which is shown at page 130 of the record, which instruction tells the jury that the state must prove beyond every reasonable doubt by testimony believed by the jury to be true that the defendant actually delivered the poison to the woman which killed the infant, and actually intended to deliver the poison to the Williamson woman and intentionally commanded and directed her to administer the poison to the baby for the purpose of killing it, and we submit that such an instruction carries with it every attribute of malice aforethought and deliberate design.
An error in granting an improper instruction for the state is cured by giving other instructions announcing a correct rule for the defendant.
Long v. State, 103 Miss. 698; Upton v. State, 143 Miss. 1; Hall v. State, 108 Miss. 641; Woulard v. State, 137 Miss. 808; Norris v. State, 143 Miss. 365; Thompson v. State, 158 Miss. 121; Pittman v. State, 147 Miss. 593.
It is urged by appellant that the trial court erred in not giving a cautionary instruction on the testimony of Mrs. Louella Williamson, who confessed to committing the murder.
An inspection of the record fails to show that the appellant requested a "cautionary" instruction in this regard. Even if an instruction of this character had been presented to the court, the giving or refusal thereof would have been entirely within the court's discretion.
Watkins v. State, 134 Miss. 211; Wellborn v. State, 140 Miss. 640; Cheatam v. State, 67 Miss. 335; Brown v. State, 72 Miss. 990.
However, as no such instruction was requested, it could not have been refused by the court. Therefore, the court was without authority to give such instruction at his own instance.
Section 586, Code of 1930; Gilbert v. State, 78 Miss. 300; Johnson v. State, 78 Miss. 627; Canterbury v. State, 90 Miss. 279; James v. State, 106 Miss. 353; Dalton v. State, 141 Miss. 841; Tatum v. State, 142 Miss. 110.
The testimony of the Williamson woman alone is sufficient not only to prove the corpus delicti, but to warrant the conviction of the appellant of the crime of murder.
Wellborn v. State, 140 Miss. 640; Matthews v. State, 148 Miss. 696.
A conviction may be had on the uncorroborated testimony of an accomplice.
Wilson v. State, 71 Miss. 880; Section 73, Underhill's Cr. Ev. p. 127; 3d Bish. New. Cr. Proc. Section 15 (3).
Argued orally by Louis M. Jiggitts and S.D. Redmond, for appellant, and by W.D. Conn, Assistant Attorney-General, for the state.
On an indictment for murder, the appellant, Ervin Pruitt, was tried before a jury of Lauderdale county, found guilty, and sentenced to be hanged.
The indictment is in words and figures as follows:
"The State of Mississippi, Lauderdale County.
"In the circuit court of Lauderdale County, at the August term in the year of Our Lord Nineteen Hundred and Thirty-one. The grand jury for the state of Mississippi, taken from the body of good and lawful men of Lauderdale county, in the state of Mississippi, impaneled, sworn and charged to inquire in and for said county, in the state aforesaid, in the name and by the authority of the state of Mississippi, upon their oath present: that Ervin Pruitt in said county on the ____ day of August, A.D. 1931, did unlawfully, wilfully and feloniously with malice aforethought kill and murder one James Walton Williamson, a human being, contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Mississippi.
"No. 3605 "Indictment filed this the August 13, 1931
"M.L. Rush, Clerk. "Recorded August 13, 1931. "M.L. Rush, Clerk."
The record shows that the appellant was taken into custody on a writ styled "3605."
The judgment of the court below has the following recitals:
"State of Mississippi v. Ervin Pruitt. "3605
"This day came the district attorney, who prosecutes for the state of Mississippi, and comes the defendant in his own proper person and by counsel, and being arraigned at the bar on a charge of murder, the same being an indictment preferred by the grand jury of this term of court, the said defendant then and there in open court and in the presence of his counsel entered a plea of not guilty to said charge. . . ."
No objection whatsoever was urged to the indictment in the court below.
Frank Williamson and his wife, Luella Williamson, are white people living about three-fourths of a mile from Lauderdale county in Kemper county. They had been married fourteen years. She had four children, three of whom were white, and one, mulatto, the deceased, who was alleged to have been poisoned.
On Thursday, February —, 1931, the baby, aged about three or four months, died from poison administered to it by the mother. The lethal dose was given to the child on that afternoon, and the physician, being called as quickly as possible, found it in a dying condition and directed that it be sent to a hospital in Meridian. Frank and Luella Williamson and two other witnesses carried the child from the Williamson home. One of the witnesses testified that the child died about twelve miles from the Kemper county line at or near Suqualena. Several witnesses testified that the baby was a mulatto. Dr. Pruitt testified that the baby was a mulatto, a negro baby.
On the evening of the murder, Warren and his wife, the parents of Luella Williamson, heard that there was some trouble about the race of Luella's baby, and went to the home of Frank Williamson to see it for the purpose of being convinced. Warren testified that the baby was a negro; that he did not examine it in the house, but that it was brought out to him by its mother, and that there did not appear to be anything wrong with it except a bad cold, and it did not appear to be in any pain. After looking at the baby out at the barn, where Warren and his wife and Frank Williamson were, Warren turned to leave and walked down to his car saying as he left, "My God, Luella!" While her husband, father, and mother were talking at the car, they heard Luella Williamson screaming in the house; returned to the house, and found the baby suffering intensely with its mouth, throat, tongue, and lips badly burned. Theretofore, Warren had a talk with the husband, Frank Williamson, and on telling Williamson that it was said they had a negro baby there, Williamson said it was a lie. Warren said the baby's mouth was black on the inside and it was not in that condition a few minutes before, and that the baby was not suffering until he returned after hearing the woman scream.
Dr. Pruitt testified, stating that he told Williamson, when he visited his home in company with a committee and on that occasion saw the baby, that the community objected to his raising the baby with the other children in the home, and that Mrs. Williamson did not hear this conversation. That Williamson informed Dr. Pruitt that he did not feel disposed to conform to the demand of the committee. The doctor told him that, if it was his baby, it was his duty to stick to it. The physician also testified that he was called back the next day professionally and found the child's mouth had been burned with some kind of caustic poison.
Several physicians testified that, if strychnine had been used, the child would not have lived more than forty-five minutes, and that it could not have been strychnine, but was some kind of caustic poison.
Luella Williamson testified as to the baby in question that the appellant, Ervin Pruitt, was its father, and pointed him out in the courtroom. She testified that she was at home at night in bed with the baby, and that Ervin Pruitt came into the room and "throwed his gun on me and said that he was going to kill me, and so he had some stuff there and he told me if I did not give the stuff to the baby that he was going to kill me and all the family and he told me that if I did not, he — he said that he was just going to kill all of us right then." He further told her that people were talking about it. She said she gave the stuff which the appellant gave her to the baby on the afternoon of the visit of her father and mother. She said the substance given her was a white powder wrapped up in a blue piece of paper, and that Ervin Pruitt told her it was strychnine.
On cross-examination she declined to say what night it was that Ervin Pruitt had this conversation with her, but, being asked the question several times, she said she thought it was the night before, but reiterated that she did not know, and could not say as to the exact night he was there.
There was evidence by witnesses who said that on one occasion one of the witnesses was near the home of Frank Williamson and saw the appellant go into the house where Luella Williamson was, and that he remained there for a long time. Another occasion was testified to when a witness went to the home of Frank Williamson for the purpose of buying "homebrew" and found the negro, Ervin Pruitt, on the front porch with Luella Williamson and her children, and that when the witness expressed some doubt as to leaving her there with the negro in the absence of her husband, she said that it was all right. That the negro then called her to show him the chickens he was going to buy. Appellant elicited these statements from the witness.
There was evidence on the part of the jailer to show that the appellant, Ervin Pruitt, and Frank Williamson, the husband of Luella, were placed in jail at Meridian on Sunday, February 22, and were released on bond the following day, February 23, and that appellant surrendered on the following day, February 24.
The baby died en route to Meridian on Thursday evening, after dark, and Frank and Luella Williamson were placed in jail that night.
Frank Williamson, the husband of Luella, testified that Ervin Pruitt lived about two miles from him, and worked for him about a month before the trouble came up, and that when they were released from jail on Monday, February 23 he and the negro, Ervin Pruitt, came from the jail in Meridian to Williamson's home in Kemper county together; that the negro stopped there and talked for a while, and then went on. It is not shown that Williamson knew that Ervin Pruitt had surrendered and had been again placed in jail. The original charge against Frank Williamson and Ervin Pruitt was petit larceny in the stealing of some cotton seed. Williamson further testified that he stayed at home all night on February 24th, with his wife, and that the appellant came to his (Williamson) home the night before he gave up and told him he (Ervin Pruitt) was threatened with a mob, and there were rumblings about Luella Williamson having a baby by him (Ervin Pruitt). Williamson said that Pruitt knew people were talking that way, and that Pruitt told him the white folks were going to mob him for "having this baby by a white lady." It was Frank Williamson's recollection that this conversation occurred one night and the baby died the next night, and he also testified that Dr. Pruitt talked with him in reference to the child, and told him there would have to be something done about it, that it had to be "put over," and that the child could not be kept there. Williamson also said that his father-in-law talked to him about the baby; and that he never saw anything improper between his wife and the negro, Ervin Pruitt, and that he did not watch them.
In the course of the argument of the case, the district attorney used the following words: "While the witness, Mrs. Luella Williamson, was testifying, did you see him making eyes at her? The attorneys for the appellant objected to this statement, whereupon the court admonished the district attorney to stay within the record and confine his argument to the evidence, and to this remark the appellant tendered a special bill of exceptions which was made a part of the record, by the trial judge.
There were numerous instructions granted the appellant which were most liberal to him. Only two instructions were granted to the state, the granting of one of which is assigned as error, and the instruction complained of reads as follows: "The court instructs the jury for the state, that if you believe from the evidence in this case beyond a reasonable doubt that Luella Williamson deliberately gave to James Walton Williamson some foreign substance unlawfully, and for the purpose of producing the death of the said James Walton Williamson, and with the deliberate intention of producing death, and that such substance was furnished her by the defendant with instructions to give same to the said James Walton Williamson for the purpose of deliberately producing his death, and that same was given pursuant to such instructions, if any, and that same, if any such there was, did produce the death of James Walton Williamson, then, under the law, the defendant is guilty of murder."
1. It is contended that there is no identified indictment in this record upon which the judgment of the court can rest.
No objection was presented to the lower court as to the validity or identity of the indictment.
It is also contended that under section 1198, Code of 1930, an indictment must show on its face the name of the foreman of the grand jury indorsed thereon, and that the indorsement of the foreman, together with its being marked filed by the clerk and signed and dated by him, shall be the legal evidence of the finding thereof. The indictment in the case at bar was not indorsed by the foreman of the grand jury, but the record shows that the appellant was arraigned thereon, and pleaded thereto, and interposed no motion to quash the indictment or demurrer thereto.
In virtue of section 1193, Code of 1930, which, among other things, provides that no verdict or judgment shall be "arrested, reversed or annulled after the same is rendered, for any defect or omission in any jury, either grand or petit, or for any other defect of form which might have been taken advantage of before verdict, and which shall not have been so taken advantage of," in conjunction with section 1206, Code of 1930, to the effect that all objections to an indictment must be taken by a demurrer thereto and not otherwise, and not afterwards, this question has been set at rest by this court. In the case of Wooten v. State, 155 Miss. 726, 125 So. 103, 105, this court said: "We hold, under these statutes, that this question cannot be raised, for the first time, on appeal."
In the Wooten Case, the objection to the indictment was that the clerk had failed to mark it filed. In the case at bar, the objection is that the foreman of the grand jury did not indorse his name on the indictment. There can be no substantial difference between the two cases. They cannot be distinguished. The Wooten Case was decided by a divided court, and the writer of this opinion did not agree with the controlling opinion, but that opinion must now control the judges of this court. There is, therefore, no reversible error predicated upon this objection and the other objections urged to the indictment.
2. It is urged that the case should be reversed, because, over the objection of the appellant, the state was permitted to prove by witnesses that, in their opinion, the deceased infant was a mulatto or negro, it being contended that expert witnesses only could testify as to the race of an individual; that it requires an ethnological anthropological expert to distinguish a mulatto from a white child.
It is quite well settled that persons familiar with the negro race, as to the mixture of negro with white blood, may tesify concerning the same. 1 Wharton's Criminal Evidence, page 843; Underhill's Criminal Evidence, sec. 53; and State v. Jacobs, 51 N.C. 284.
In this state, where the white and the negro race are about equally divided in population, we have no hesitancy in saying that the opinion of a nonexpert as to race is competent evidence for the jury to consider.
3. It is next contended that the evidence of Luella Williamson, an accomplice, is the only evidence that tends to incriminate the appellant, and that her testimony is so unreasonable and improbable as to make the judgment of the court below a palpable miscarriage of justice.
Luella Williamson testified positively and unequivocally that the appellant gave to her the white powder which she gave to the child, telling her it was strychnine to be given to the child to produce its death, and it is clear that whatever substance she administered to the child brought about its death within two or three hours thereafter. If this statement is true, the appellant is guilty as charged.
After a most careful examination of this record, we are bound to say there is not a line or syllable of testimony contradicting this statement to be found therein.
The rule is that we must consider evidence offered on behalf of the state most favorably in determining whether or not we will reverse the case, because the conviction stands mainly upon the evidence of Luella Williamson, confessedly an accomplice, and the main agent in producing the death of a human being. It has long been settled in this state, beyond peradventure, that the testimony of an accomplice alone, uncorroborated, is sufficient to sustain a verdict of guilty. Keithler v. State, 10 Smedes M. 192; Dick v. State, 30 Miss. 593; Strawhern and Grizzle v. State, 37 Miss. 422; George v. State, 39 Miss. 570; Fitzcox v. State, 52 Miss. 923; White v. State, 52 Miss. 216; Wilson v. State, 71 Miss. 880, 16 So. 304; Matthews v. State, 148 Miss. 696, 114 So. 816; Gates v. State, 160 Miss. 479, 135 So. 189.
A strong appeal is made to this court to take into consideration that the appellant here is a negro; that the evidence shows uncontradictedly that he was the father of a baby conceived and brought forth by a white woman, and that the jury convicted him of miscegenation rather than of murder.
It is unquestionably settled in this case that Luella Williamson administered poison to the baby which produced its death, and it was of such a tender age that it could do no harm to any person. Luella says she gave the poison on the demand of the appellant; that he furnished her with the means and instrumentalities with which to bring about the baby's death. She states he was at her house and made the statement to her which is quoted in this record; but the appellant says, in reply, that on the day the poison was administered to the baby he was confined in jail at Meridian. She does not say the conversation occurred on a particular night. She is corroborated by the fact that they had been intimate; that they both knew that the neighborhood was aroused about the mongrel baby; that there were rumblings and a committee had called upon her husband, and threats of a mob had reached the appellant. On some night, just prior to the murder of this infant, this appellant was at the home of Frank Williamson, according to his statement, and the appellant showed great anxiety on that occasion about the state of mind of the people of that community. The appellant may have, on the same night, or just prior thereto, visited the woman without the knowledge of the husband. He must have had a powerful influence upon the woman, as reflected by every line in this record. In other words, so far as she was concerned, Ervin Pruitt's was the master mind. She had consented to become abased, and subjected to his lecherous embraces, and had gone the limit of degradation with him. How then, can we say that her story is unreasonable? The record shows that she had been convicted of the crime and sentenced to serve a life term in the state penitentiary. What reward could she expect, what further punishment could be inflicted upon her? What motive for swearing falsely can be urged in this case, unless we leave the path of logic and have recourse to a vivid imagination? She would remain silent when asked some questions, only on two or three occasions, but can it be imagined that there could be a more harrowing, heartbreaking scene for a woman than the one enacted in the trial of this suit? She confessed murdering her own offspring, her infidelity to her husband, and her infidelity to her race. She admitted her double shame, her share in crime without attempt at concealment.
Under these circumstances, should we set aside the verdict of a jury of twelve men who witnessed her demeanor while testifying before them, who were from another county than the one in which the appellant and the other witnesses resided, and who are presumed to have been of good character and to be intelligent men? Can we invade their province? Can we say that, because she was confessedly a bad woman, and confessedly a murderess, while we will submit the question to the jury, yet we will not permit their verdict to stand thereon? There are too many cases of conviction in this country rendered upon the uncorroborated testimony of an accomplice whose hands are as deeply dyed in blood as his principal, now to say that we will not accept testimony when it is undenied and when it is not unreasonable.
We cannot say, as a matter of law, that the trial judge erred when he overruled the motion for a new trial. He, too, saw and heard all the testimony in this case, which was peculiarly a question for the jury.
The appellant cites Byrd v. State, 154 Miss. 742, 123 So. 867, and it is said by counsel that it is an identical case where an innocent negro was convicted for killing a white man. There the evidence was challenged and denied. In the case at bar it stands unchallenged and undenied. There is no similarity between the cases when analyzed.
We decline to disturb the verdict and judgment.
4. The appellant contends that the court erred in permitting the state to show the illicit relations existing between Luella Williamson and Ervin Pruitt, and that thereby the crime of adultery was shown.
Evidence of this character was competent to show motive for the crime on the part of the appellant. See Raines v. State, 81 Miss. 489, 33 So. 19, and Collier v. State, 106 Miss. 613, 64 So. 373.
5. The fifth assignment of error argued by the appellant is as to the alleged inflammatory remarks of the district attorney in his argument before the jury, calling attention to the fact that the engro defendant was making eyes at the white woman while she was on the witness stand. The defendant had not been a witness in his own behalf in this case, and it is alleged that this aroused the jury and raised the race issue in an unwarranted degree.
It will be observed that the court, upon this occasion, admonished the district attorney to stay within the record and confine his argument to the evidence. If it be conceded that this was a statement of fact, and that the remarks were prejudicial, the court, in our opinion, granted to the appellant all that he requested. To thus admonish the district attorney was equivalent to sustaining his objection, and the court cannot be put in error on a matter not presented to it.
The court could do no more without a request from the appellant. See Redwine v. State, 149 Miss. 741, 115 So. 889, and the case of Bob Wells v. State, 139 So. 859, this day decided by this division.
6. Error is predicated upon the granting of the second instruction for the state, and it is insisted that the instruction omits from it the words "with malice aforethought" or their equivalent, citing Burnett v. State, 92 Miss. 826, 46 So. 248. And it is further urged that the instruction fails to state that the poison was administered without authority of law, or equivalent words.
It will be observed that the instruction told the jury that the substance was administered unlawfully for the purpose of producing the death of James Walton Williamson, with the deliberate intention of producing his death, which we think was sufficient.
The poison could not be administered to a baby three months old with the deliberate intention of producing its death without it being unlawful. There could be, in this case, no degrees of the crime. If the poison was so administered, it was murder. We are of the opinion there is no merit in the objection to this instruction.
There are many other exceptions pointed out in the record which are entirely without merit.
We are of opinion that the appellant has had a fair and impartial trial, and that his fate hinged upon the verdict of the jury, which has been adverse to him, and, under applicable rules of law, we are not warranted in interfering with this verdict and judgment.
Friday, the 15th day of April, 1932, will be fixed as the date of his execution.
Mrs. Williamson was confessedly an accomplice. If the appellant's conviction is to stand, it must be solely on her evidence. There is no corroboration. That which the state claims as corroborative of her story is too shadowy and intangible to amount to corroboration. And, Mrs. Williamson's narrative, we think, is so unreasonable and improbable as to be unbelievable.
We see no good purpose that would be answered by setting out more fully the reasons on which we base this dissent.
Without hesitation, and with the utmost confidence in our position, we are of the opinion that appellant is entitled to a reversal of the judgment of conviction and a discharge.