Pat D. Holcomb and Edward W. Smith, both of Clarksdale, for appellant.
Defendant was denied rights guaranteed by Article VI and XIV of Constitution of United States. Counsel was appointed on Monday, the seventh day of October, to defend the appellant against the charges of the second indictment and was given until the following morning at nine o'clock, Tuesday, October 8th, to plead to that indictment. At said time appellant filed a motion to quash the indictment on the ground alleged therein and at that time moved the court to allow the defendant until two o'clock to make further investigation of authorities and to subpoena witnesses. The court denied the motion for time and forced defendant then and there to present the motion to quash without affording counsel opportunity to adequately acquaint himself with the law, or to adequately present the facts by having his witnesses subpoenaed, thereby denying appellant the constitutional right of compulsory process.
Commonwealth v. O'Keefe, 298 Pa. 169, 148 A. 73; Powell v. Alabama, 77 L.Ed. 158; Paoni v. U.S., 281 F. 801; Constitution of United States, Articles VI and XIV; Constitution of State of Mississippi, sec. 26; Section 1262, Code of 1930; State v. Poole, 23 So. 503; State v. Brooks, 1 So. 421; Shaffer v. Terr., 127 P. 746; Schields v. McMicking, 23 Philippine 526; Warren v. State, 164 So. 234.
The grand jury which found the indictment against appellant was improperly and irregularly drawn and unknown to Mississippi jurisprudence, and therefore the indictment should have been quashed.
The order sustaining the motion to quash the indictment in Cause No. 4071 is the only authority for the convening of the grand jury that indicted this defendant in Cause No. 4080. The order was entered by an independent action of the court without application therefor by the district attorney or accused. It is respectfully submitted that the court was without authority to summon another grand jury; for, the court is only authorized and empowered to impose upon the province of the board of supervisors and the general laws applicable to the convening of jurors in certain enumerated cases.
Sections 2060 and 2062, Code of 1930; Williams v. State of Mississippi, 42 L.Ed. 1012; Gibson v. State of Mississippi, 40 L.Ed. 1075; Smith v. State of Mississippi, 40 L.Ed. 1082; Norris v. Alabama, 79 L.Ed. 1074; Campbell v. State, 17 So. 441; Cook v. State, 90 Miss. 137; Baker v. State, 23 Miss. 243.
The court erred in permitting Mr. John Sligh, the official court reporter, to read from his notes an alleged confession.
The shorthand notes were certainly a confession reduced to writing by another person, which was not signed by appellant, or read over to appellant and admitted to be correct by appellant, and, therefore, was not admissible.
16 C.J. 732, sec. 1508.
It seems that without exception the courts recognize that a written confession must either be signed or voluntarily approved as his writing.
Shelton v. State, 117 So. 8.
Since there are so many glaring errors and imperfections of both law and procedure, as is reflected by the entire record in this cause, the defendant, certainly, comes squarely within the announcement of the recent case of Warren v. State, 164 So. 234.
A contravention of Article VI of the Federal Constitution is a deprivation of Article XIV of the Constitution of the United States. Further, Section 26 of the Constitution of the State of Mississippi and Section 1262 of the Mississippi Code of 1930 insures to one charged of crime virtually the same rights as Article VI.
However, the denial in fact of counsel in contravention of Article VI of the Constitution is tantamount to a denial of the due process clause of the XIV Amendment to the Constitution of the United States.
The single condition on which the court could rightfully have awarded a special venire did not exist. It was a void act.
Baker v. State, 23 Miss. 243.
There was not a scintilla of evidence in the record that fraud had been practiced, therefore the court was without authority to quash the box.
Sections 2052, 2060 and 2062, Code of 1930; Campbell v. State, 17 So. 441; Cook v. State, 90 Miss. 137; Quich v. State, 132 Miss. 794; Baker v. State, 23 Miss. 243.
It is respectfully submitted that the action sua sponte of the court in ordering a special venire of fifty jurors was error.
Section 2064, Code of 1930; Gavigan v. State, 55 Miss. 533.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
At the outset, it is well enough to call attention to the fact that Article VI of the amendment to the Federal Constitution confers no rights on a defendant in a state court. This amendment is exclusively a limitation on federal authority — it is no limitation on the state.
Counsel was appointed on September 26th and trial had on October 11th, a time of some fifteen or sixteen days after the appointment was made. Under such circumstances, can an attorney insist that he is unprepared and ask for further time to "prepare another plea, or another defense, whatever it might be," particularly when no further "plea, or defense" is hinted at by any subsequent pleading. It is not shown that the defendant could have made any further "pleas or defenses" and for this reason it would be utter folly to send this case back for another trial just to see if it would be possible for some other attack to be made upon the indictment in this case.
Giles v. State, 150 Miss. 756, 116 So. 887.
From this record it clearly appears that the first indictment was quashed upon motion of defendant upon the ground that negroes had been excluded from jury duty solely because of their race and color contrary to the Fourteenth Amendment to the Federal Constitution. Norris v. Alabama, 79 L.Ed. 1074 (one of the Scottsboro cases). The court, in quashing the indictment, on the proof offered, apparently sue sponte quashed the jury box, as I say it should have done.
After this indictment and the jury box was quashed the court ordered the sheriff to summons fifty persons for jury duty to appear at nine o'clock a.m., October 5, 1935. Out of this group evidently a grand jury was organized and this grand jury returned the indictment on which this defendant was tried.
The motion to quash this indictment was grounded upon the proposition that the jury should have been drawn from the jury boxes instead of by way of an open venire — that the court exceeded its authority in quashing the jury boxes of its own motion. In other words, appellant wanted another grand jury drawn from the same box as the first one, one which would be subject to the same criticism as was directed to the first one, a simple case of blowing hot and cold with the same breath.
The opinion in the case of Norris v. Alabama, supra, contains no new rule of law so far as Mississippi is concerned. The rule there referred to has been the Mississippi rule for a good many years. See Farrow v. State, 91 Miss. 509, 45 So. 619. And if on proper showing on a motion to quash an indictment it clearly appears that the vice of the same goes back to an improperly constituted jury box, the court, of its own motion, ought to quash the box.
Quick v. State, 132 Miss. 794, 96 So. 737.
Thus it seems that since it is the duty of the court to see that a jury is composed of fit persons, a fair and unbiased jury, one to which no legal objection may be made, and this matter is addressed largely to its judicial discretion, this court should not hold this trial court in error for its evident purpose in acting to get a panel to which there could be no legal objection and particularly when it clearly appears that a fair and impartial jury sat in this case. At least, nothing to the contrary appears of record.
It is argued here that the notes of the official court reporter constituted a written confession not adopted by appellant and consequently inadmissible as evidence. In McMasters v. State, 83 Miss. 1, 35 So. 302, and Tyler v. State, 159 Miss. 223, 131 So. 417, the state submits that this testimony was competent and admissible.
Argued orally by Pat D. Holcomb, for appellant, and W.D. Conn, Jr., for the state.
1. CRIMINAL LAW.
Where murder indictment was quashed on ground that negroes were omitted from jury box from which grand jury was drawn, defendant could not complain of trial court's refusal to quash second indictment on ground that grand jury was drawn from registration books and not from jury box which had been quashed (Code 1930, secs. 2029, 2033, 2038, 2039, 2040, 2060; Const. 1890, sec. 264).
2. CRIMINAL LAW.
Return of second indictment after quashing of first indictment on motion of defense counsel appointed by court held not to entitle counsel to additional time to prepare for trial on ground that quashing of first indictment relieved counsel of duty to defend.
3. HOMICIDE.
Evidence supported conviction for murder.
4. WITNESSES.
Permitting court reporter to read shorthand notes to prove defendant's statements to district attorney prior to trial held not error, notwithstanding notes were not submitted to or signed by defendant, since rule that statements taken by justices of the peace at preliminary hearings are inadmissible until signed by defendant was inapplicable.
5. WITNESSES.
Witness who has made memorandum in writing on preliminary hearing may refresh his memory therefrom, if witness has testified to correctness of memorandum.
Ethridge, J., delivered the opinion of the court.
The appellant, Fedro Pearson, was jointly indicted with Roosevelt Moon in the circuit court of Coahoma county, for the murder of J.C. Parker, a white man about seventy years of age, who operated a small grocery store, on May 20, 1935; said store being situated about a mile from Clarksdale on the Friars Point road. There was a severance and this appeal is by Pearson. When the indictment was returned by the grand jury, one Pat D. Holcomb, an attorney of the Clarksdale Bar, was appointed to defend Pearson, and another was appointed to defend Moon.
At the September, 1935, term of the circuit court, the grand and petit juries for the term were made up in accordance with section 2039, Code 1930, having been drawn in conformity with the statute.
The attorney for the appellant filed a motion to quash the indictment and the jury so drawn, on the ground that members of the Negro Race were omitted from the jury box, and that it was a habitual practice in making up jury boxes of the county to discriminate against the Negro Race by leaving them off the list of jurors so selected. The appellant is a member of the Negro Race. The trial court heard evidence upon this motion to quash the indictment, and the court, having found that no name of a member of the Negro Race had been placed in the jury box for several years past, sustained the motion, and in accordance with the provisions of section 2060, Code 1930, ordered that a jury be summoned from the qualified electors of the whole body of the county. In accordance with this order of the court, the sheriff summoned a new jury and a second indictment was returned against the defendants. Thereupon, the same attorney who moved to quash the indictment, when it was first returned by the first jury, moved to quash the second indictment upon the ground that the jury was not drawn from the jury box of the county, and that the court had no right to quash the jury box made up from which the grand jury was drawn, but only had the power to quash the indictment and dismiss the grand jury so drawn, and that appellant had the right to have a second grand jury drawn from the jury box as made up. This motion to quash was overruled by the court, which action of the court constitutes one of the principal assignments of error in the case.
Section 264 of the Constitution provides that no person shall be a grand or petit juror who is not a qualified elector, and able to read and write, but that the want of such qualification in any juror shall not vitiate any indictment or verdict, and that the Legislature shall provide for procuring a list of persons so qualified, and the drawing therefrom of grand and petit juries for each term of the circuit court. Section 2029, Code 1930, provides who are competent jurors and reads as follows: "Every male citizen not under the age of twenty-one years, who is a qualified elector and able to read and write, has not been convicted of an infamous crime, or the unlawful sale of intoxicating liquors within a period of five years and who is not a common gambler or habitual drunkard, is a competent juror," etc. Section 2033, Code 1930, provides for a list of jurors to be made up by the board of supervisors at their first meeting in each year, said list to cover twelve months, and that in so doing they shall use the registration books of voters, and shall select qualified persons "of good intelligence, sound judgment, and fair character." It also provides that the board of supervisors shall order the jury box to be emptied of all names therein, and the same to be refilled from the jury list as made by them at said meeting, and that the clerk shall put the names of jurors from each supervisor's district in a separate box or compartment kept for the purpose, which is to be kept locked, closed, and sealed, except when juries are drawn. It is provided by section 2038, Code 1930, that after the expiration of twelve months, the clerk shall make a list of the names of persons in the list who did not serve as jurors during the year, deliver this list so made, duly certified, to the clerk of the board of supervisors, and this shall constitute a part of the list of jurors for the ensuing year, unless the supervisors, for reasons deemed good, cause some of the names to be omitted from the list. By section 2039, Code 1930, it is provided that at each regular term of the circuit court, and at a special term if necessary, the judge shall draw from the small boxes inclosed in the jury box slips containing the names of fifty jurors to serve as grand and petit jurors for the first week, and thirty to serve as petit jurors for each subsequent week of the next succeeding term of court. It is then provided by section 2040, Code 1930, that the clerk shall keep the names which the judge has drawn and placed in envelopes without opening, until within fifteen days of the term for which the jurors were drawn, and shall then, in the presence of the sheriff and clerk of the court, open the envelopes and make a list of the names in each, which list shall be certified by these officers to be correct, and the clerk of the court shall then issue and deliver to the sheriff separate venire facias for each week returnable on the proper day.
The design of these sections is to have men of proper qualification and character, and to have them selected from the various districts of the county in such manner as to avoid any manipulation in the drawing and summoning of jurors.
The appellant moved to quash the indictment on the ground that the grand jury was illegal and constituted fraud under the decision of the Supreme Court of the United States in the case of Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074, and, as stated, the court, after hearing the evidence, sustained the motion, and in so doing it necessarily found that the whole jury box was illegal and tainted with fraud. The court, thereupon, ordered a venire to be issued from the regular voters of the county in accordance with law, which we consider was the legal and proper course to be pursued in such a case.
We do not think the appellant is in a position now to challenge the legality of this proceeding on the ground that the grand jury should have been selected from the jury box as made up. The jury box was either legal or illegal. There is no showing that the jury box was, in fact, made up legally, and we are of the opinion that the appellant could not so contend after having invoked the quashing of the grand jury. The appellant has no right, after so doing, to demand that a new jury be drawn from this same jury box. Counsel for the appellant, no doubt, found himself, in the second instance, in a worse condition than at first. It is not always wisdom on the part of an appellant to insist upon technical rights, and that the lists were not made up in conformity with the sections above mentioned, and that negroes were left out of the jury box, if the jurors so selected have the proper qualifications to make good jurors. When the lists are made up from the registration books, it is often the case that less desirable jurors would be selected, and that they would be selected at a time when a particular trial was to take place in the courts. It would be an easy matter, but for these statutory provisions above mentioned, for an officer to summon jurors, in cases of heinous crimes, who would have more of a tendency to convict persons charged with crime, than a jury selected at a time when no court is sitting and when no particular case is set for trial.
The appellant and his attorney cannot complain of that which they have procured. The whole jury box was either legal or illegal, and no question is presented now as to the soundness of the decision of the judge in quashing the first indictment. The appellant's present contention is that he had a right to elect, and if he wanted the second jury drawn from the same box, he had a right to have this done.
We do not think there is any merit in this contention or that it is sound. If the jury box was illegally made up, the court had the power to quash it. In quashing the indictment and the grand jury which returned it, the court was authorized to quash the entire jury box. It was also shown that in drawing the jurors from the small boxes representing the supervisors' districts — selecting the grand and petit juries from the box before the first indictment was quashed — in three of the small boxes there were not any names left. It is manifest that the court was correct in refusing to quash the second indictment. There is no allegation or contention that the jurors summoned under order of the court were, in any manner, illegal, or that fraud was perpetrated in the selection and summoning of these jurors.
Counsel also contend that when the second indictment was returned, he requested additional time to prepare for the trial, and that the court erred in refusing to grant such time. Counsel takes the position that his first appointment to defend the appellant did not impose upon him any further duty after the indictment was quashed, and that on the second indictment he was entitled to the same indulgence he had in the first and he claims that the appellant was denied the right of counsel within the meaning of Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527. Counsel is mistaken in assuming that he was under no duty after the quashing of the first indictment, as to his appointment, to defend the appellant. He was under the duty of defending the appellant until the case was disposed of on its merits. The first appointment devolved upon counsel the duty to fully investigate the case as far as he could and prepare for the ultimate trial on the merits, and he was not to rest after securing the quashing of the first indictment. His duty was to investigate the case in all its bearings, and to use diligence in ascertaining all the facts. In the case of Giles v. State, 150 Miss. 756, 116 So. 887, 888, this court said that: "Under the law, it is the duty of a defendant to prepare for his trial as speedily as he reasonably can; but if he had more than a week to arrange for his trial and failed to secure an attorney within that time, it would require an extraordinary showing of circumstances to compel the court to further delay the trial. The record contains no such showing, and there was nothing to show that the attorney who defended the appellant was not sufficiently advised of the facts to make a proper defense."
In the case at bar, there is no showing that counsel could have secured any additional advantage had he secured such indulgence of further time from his first appointment until the second indictment. Circuit courts are held only for limited periods, and business must be dispatched with reasonable speed in order that justice may be administered, and there is no showing that injustice resulted to the appellant from the overruling of the motion for additional time. It appears that counsel conducted the case with knowledge of the material facts, and had ample opportunity to learn all that was material. We are, therefore, of the opinion that there was no error in this regard.
On the trial on the merits of the case, one Henry Shannon was introduced as a witness for the state, and it appeared that he had also been indicted for some participation in the crime, but just what the indictment was is not disclosed from the record. It appeared from Shannon's testimony that Pearson and Moon contacted him prior to the killing and he had some conversations with them; that they wanted money to get away from Clarksdale, and tried to sell him a suit of clothes; that they made inquiries of Shannon as to places or stores where they could secure money; and that the nature of their inquiries indicated a purpose to take money from some storekeeper or person by some improper method. Among the stores near Clarksdale which Shannon told Pearson and Moon about was the store of Parker on the Friars Point road. After having this conversation prior to the killing, Pearson returned to Shannon's house, according to his testimony, and Pearson's clothing was wet and he secured some clothes from Shannon and left some clothing in Shannon's house to be kept until Pearson returned, or Shannon heard from him. Shannon also testified that Pearson said the bloodhounds had been running him, and that Parker had been killed. Some of the statements alleged to have been made by Moon were challenged by Pearson, but they do not appear to have been such as were so hurtful, or so prejudicial, as to require a reversal of the judgment. Shannon's testimony strongly tends to connect Pearson with the murder of Parker.
N.A. Cartledge also testified to finding that Mr. Parker had been killed, and as to his effort to trail the assassins with dogs, and that the dogs did trail in the direction of the bridge near where some clothing was afterwards found. Some of the clothing had been burned by Shannon to keep the officers from locating same. Cartledge testified that the dogs then lost the trail on account of a heavy rain coming up, and his testimony only shows that whoever did the killing fled in the direction of the bridge, and had on clothes similar to those worn by Pearson on the evening prior to the killing. I think the testimony of Cartledge was sufficient to tend to prove the appellant's participation. It is true that standing alone it would have little weight. Testimony in reference to the bloodhounds and their qualifications is rendered immaterial because they lost the track and were unable to locate the person trailed.
Another witness, Frank Hamilton, was introduced. He participated in the investigation of the killing, in the tracing of Pearson, and in arresting him, and testified to certain conversations which took place when Pearson was arrested, and to the recovery, from one to whom Pearson sold it, of the pistol of the deceased, Parker.
Parker was murdered with his own pistol, and after the killing, it was turned over by Pearson to another for fifty cents. Hamilton and others went to the jail with three pistols; laid them out before Pearson, and asked him to pick out Parker's pistol. He did this, selecting the correct pistol. There were two shots fired from the Parker pistol at the time of the murder, and the pistol, when delivered by Pearson to the other negro for fifty cents, and when secured by the officers, had two discharged cartridges. Pearson made statements to Hamilton and the officers, at that time, as to the transaction, and some of these were made in the presence of Roosevelt Moon, and they disagreed about what happened, as to who took the pistol from Parker, but they both agreed that they participated in robbing Parker, and that two shots were fired. One shot was found in the ceiling, and the other in the breast of Parker, and, according to the witness who examined Parker, it was fired from such distance that Parker's clothing was not powder burned. Pearson's confession was to the effect that the pistol was discharged in a struggle over it, and the testimony showed that this confession was free and voluntary. It is argued, however, that the court admitted evidence showing that, in conversations about how the killing occurred, Roosevelt Moon charged Pearson, and Pearson charged Moon, therewith. They were together and each went to the store for the purpose of securing money, and they undertook to disarm and rob Parker. Under these statements, they were both participants in the murder.
J.C. Sligh, official court reporter of that district, went with the district attorney, and took down in shorthand statements from Fedro Pearson, and Roosevelt Moon, and Henry Shannon, but had not transcribed them. Sligh was called as a witness and read to the jury the conversation with Pearson from his shorthand notes. It was objected to as being a written confession which had not been submitted to the appellant as to its correctness, and that it was inadmissible in evidence. It is only where justices of the peace, at preliminary hearings, or other persons, are required to take down in writing the substance of statements made by defendants, that such statements are inadmissible until signed by the defendants; but that principle is not applicable here. In effect, Sligh was merely delivering statements made in his presence which he took down in shorthand. It is permissible for a witness who has made a memorandum in writing on the hearing to refresh his memory by reading it, if he has testified as a witness as to the correctness of the matter.
We have carefully considered all the assignments of error, and, after full consideration, we find no reversible error in the judgment of the court below; and it will therefore be affirmed.
Affirmed, and June 10, 1936, fixed as the date for the execution of the sentence.
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