Holden, J.,
delivered the opinion of the court.
George Mackie, alias George McKey, appeals from a conviction and sentence to death for .the murder of Mrs. William Bolian on the afternoon of August 9, 1924, at her home about two miles north of Summit, Pike county.
A reversal of the judgment of the lower court is sought upon several grounds, and we shall notice and discuss the points in the order of their presentation, after stating- the facts of the case as shown by the testimony introduced at the trial. The story of the tragedy, as shown by the evidence offered by the state, which was believed by the jury and is therefore to be viewed on appeal as the true facts of the case, is substantially and briefly as follows:
Mrs. William Bolian, the widow of William Bolian, deceased, lived on her little farm about two miles north of Summit. She was the mother of eight young, children, the, oldest being about fifteen and the youngest less than five years of age, all of whom lived with her in their home. She was engaged in farming in a small way, and
had employed the appellant, MacMe, to assist her in operating the farm. He lived in the same house with Mrs. Bolian and her children, occupying’; one of the ro.oms and taking- his meals there.
On the afternoon of August 9, 1924, while Mrs. Bolian and two of her daughters, Maggie aged nine years, and Fanny aged fifteen years, were in Mrs. Bolian’s room engaged in folding clothes, the appellant, Mackie, entered the room with a pistol in his hand and asked them, “Where are you going?” and when Mrs. Bolian replied to his inquiry, he pointed the pistol at them and said,
‘ ‘
I am going* to kill every damn one of you. ’ ’ Whereupon Mrs. Bolian grappled with him to prevent him from shooting her daughter, Fanny, who seemed to be the main object of his attention, and Mrs. Bolian beg,an to scream while thus scuffing with Mackie, and she told Fanny to run, and Fanny ran from the house in an easterly direction. At this moment a young man by the name of Tarver, having heard the screams, rushed into the room to assist Mrs. Bolian, and thereupon Mackie shot Mrs. Bolian in the back killing her and then shot Tarver in the back, when he was trying to run away, and killed him.
Mackie then immediately gave chase to Fanny, who was still running’ away from the house, and caught her as she was running, down by a creek about a quarter of a mile east of the house, and when he overtook her he put his arm around her and told her “he was going to hurt her,5 ’ she begging him not to, kill her, and shot her in the stomach. Fanny fell to the ground, and thinking that Mackie was about to shoot her again she closed her eyes as if dead, and thereupon Mackie fled and escaped from the state, was subsequently arrested in Florida, and brought back for a trial, which occurred in January of the present year. Fanny recovered sufficiently to testify in the case.
When the killing; became known in the community, officers and other persons visited the scene and examined the premises where they found all of the other little
children huddled together at the steps of the home, found Mrs. Bolian lying dead from a. pistol shot in the hack, and found Tarver shot in the back, from which he died after removal to the hospital, and the sheriff then went down to the creek and there found Fanny lying upon the ground shot through the stomach.
Extensive search was made for Mackie, but he was not apprehended until about four months afterwards, when he was arrested and brought back from Florida. After he was arrested he told the officers, in substance, that he killed Mrs. Bolian and Tarver because Mrs. Bolian had attacked him with a butcher knife, and Tarver had attacked him with an axe. The officers and others who examined the premises found no signs or evidences that any attack had been made in the rooms with a butcher knife or axe.
The state introduced testimony showing that a few days before the killing Mackie had told a neighbor, one Dickerson, that “he was going to kill off the whole family” if they interfered with him and his attentions to Fánny, the fifteen-year old daughter. Something was also said by him as to his getting a wedding dress for Fanny. Mackie was forty-six years of age, was married, and had a family in some other county.
The testimony of the eyewitnesses to the' killing showed, in substance, that Mrs. Bolian was unarmed and making no attempt to hurt Mackie when he shot her; that Tarver had no axe, nor did he try to hurt Mackie in any way, but that, after he had reached the scene and turned to leave, Mackie shot him in the back. Fanny was unarmed and trying to get away from Mackie wheu he caught and shot her in the stomach. The children who were present and witnessed the crime were brought from the Orphans’ Home at Jackson to testify in the case at Magnolia. They had not seen Mackie since they saw him in the horrible role of murdering their mother and Tarver, and shooting Fanny, until they saw him in the court at Magnolia.
The appellant, Mackie, introduced no testimony except his own. He testified in his own behalf that, on the afternoon of the killing, he went into Mrs. Bolian’s room and asked her where she was going,- and that she told him it was none of his business and that he must quit going with her girl, Fanny, and that thereupon Mrs. Bolian reached under the bed and got a pistol and he grabbed it; that “they commenced screaming and hollering ,and Fanny and Maggie run;” that then Tarver came running into the room and that all three of them, Mrs. Bolian, Tarver, and himself, tusseled with the pistol, and that the pistol went off and accidentally killed Mrs. Bolian and went off again and accidentally killed Tarver, and that he pursued Fanny and when he caught her he put his arm around her to love her, and the pistol he had in his hand went off accidentally and shot Fanny. This is the substance of his testimony, whicl} was intended to show that the homicide was accidental.
On cross-examination Mackie was asked if he did not state to the officers that he had shot Mrs. Bolian and Tarver because they had attacked him with a butcher knife and an axe, and he denied making the statement. The officers were' put on the stand and testified that Mackie made the statement to them.
The trial of the case was had at a special term of the circuit court regularly called by the circuit judge, for the purpose, apparently, of trying the general list of criminal oases. Mackie had already been -indicted at the previous regular October term of the circuit court, while he was an escape.
When court convened it was discovered that the jury box was entirely exhausted, there being no names whatever in the box from which to draw a jury. It also appeared that the judge had ordered the clerk to summon a venire of thirty regular jurors for the term, which venire had been summoned and was present. When it appeared to the judge that the jury box was exhausted, he adjudicated that no jury had been drawn, and he pro
ceeded under the statute to issue a
venire facias
to be served by the sheriff, and in that way secured a jury of thirty for the term.
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Holden, J.,
delivered the opinion of the court.
George Mackie, alias George McKey, appeals from a conviction and sentence to death for .the murder of Mrs. William Bolian on the afternoon of August 9, 1924, at her home about two miles north of Summit, Pike county.
A reversal of the judgment of the lower court is sought upon several grounds, and we shall notice and discuss the points in the order of their presentation, after stating- the facts of the case as shown by the testimony introduced at the trial. The story of the tragedy, as shown by the evidence offered by the state, which was believed by the jury and is therefore to be viewed on appeal as the true facts of the case, is substantially and briefly as follows:
Mrs. William Bolian, the widow of William Bolian, deceased, lived on her little farm about two miles north of Summit. She was the mother of eight young, children, the, oldest being about fifteen and the youngest less than five years of age, all of whom lived with her in their home. She was engaged in farming in a small way, and
had employed the appellant, MacMe, to assist her in operating the farm. He lived in the same house with Mrs. Bolian and her children, occupying’; one of the ro.oms and taking- his meals there.
On the afternoon of August 9, 1924, while Mrs. Bolian and two of her daughters, Maggie aged nine years, and Fanny aged fifteen years, were in Mrs. Bolian’s room engaged in folding clothes, the appellant, Mackie, entered the room with a pistol in his hand and asked them, “Where are you going?” and when Mrs. Bolian replied to his inquiry, he pointed the pistol at them and said,
‘ ‘
I am going* to kill every damn one of you. ’ ’ Whereupon Mrs. Bolian grappled with him to prevent him from shooting her daughter, Fanny, who seemed to be the main object of his attention, and Mrs. Bolian beg,an to scream while thus scuffing with Mackie, and she told Fanny to run, and Fanny ran from the house in an easterly direction. At this moment a young man by the name of Tarver, having heard the screams, rushed into the room to assist Mrs. Bolian, and thereupon Mackie shot Mrs. Bolian in the back killing her and then shot Tarver in the back, when he was trying to run away, and killed him.
Mackie then immediately gave chase to Fanny, who was still running’ away from the house, and caught her as she was running, down by a creek about a quarter of a mile east of the house, and when he overtook her he put his arm around her and told her “he was going to hurt her,5 ’ she begging him not to, kill her, and shot her in the stomach. Fanny fell to the ground, and thinking that Mackie was about to shoot her again she closed her eyes as if dead, and thereupon Mackie fled and escaped from the state, was subsequently arrested in Florida, and brought back for a trial, which occurred in January of the present year. Fanny recovered sufficiently to testify in the case.
When the killing; became known in the community, officers and other persons visited the scene and examined the premises where they found all of the other little
children huddled together at the steps of the home, found Mrs. Bolian lying dead from a. pistol shot in the hack, and found Tarver shot in the back, from which he died after removal to the hospital, and the sheriff then went down to the creek and there found Fanny lying upon the ground shot through the stomach.
Extensive search was made for Mackie, but he was not apprehended until about four months afterwards, when he was arrested and brought back from Florida. After he was arrested he told the officers, in substance, that he killed Mrs. Bolian and Tarver because Mrs. Bolian had attacked him with a butcher knife, and Tarver had attacked him with an axe. The officers and others who examined the premises found no signs or evidences that any attack had been made in the rooms with a butcher knife or axe.
The state introduced testimony showing that a few days before the killing Mackie had told a neighbor, one Dickerson, that “he was going to kill off the whole family” if they interfered with him and his attentions to Fánny, the fifteen-year old daughter. Something was also said by him as to his getting a wedding dress for Fanny. Mackie was forty-six years of age, was married, and had a family in some other county.
The testimony of the eyewitnesses to the' killing showed, in substance, that Mrs. Bolian was unarmed and making no attempt to hurt Mackie when he shot her; that Tarver had no axe, nor did he try to hurt Mackie in any way, but that, after he had reached the scene and turned to leave, Mackie shot him in the back. Fanny was unarmed and trying to get away from Mackie wheu he caught and shot her in the stomach. The children who were present and witnessed the crime were brought from the Orphans’ Home at Jackson to testify in the case at Magnolia. They had not seen Mackie since they saw him in the horrible role of murdering their mother and Tarver, and shooting Fanny, until they saw him in the court at Magnolia.
The appellant, Mackie, introduced no testimony except his own. He testified in his own behalf that, on the afternoon of the killing, he went into Mrs. Bolian’s room and asked her where she was going,- and that she told him it was none of his business and that he must quit going with her girl, Fanny, and that thereupon Mrs. Bolian reached under the bed and got a pistol and he grabbed it; that “they commenced screaming and hollering ,and Fanny and Maggie run;” that then Tarver came running into the room and that all three of them, Mrs. Bolian, Tarver, and himself, tusseled with the pistol, and that the pistol went off and accidentally killed Mrs. Bolian and went off again and accidentally killed Tarver, and that he pursued Fanny and when he caught her he put his arm around her to love her, and the pistol he had in his hand went off accidentally and shot Fanny. This is the substance of his testimony, whicl} was intended to show that the homicide was accidental.
On cross-examination Mackie was asked if he did not state to the officers that he had shot Mrs. Bolian and Tarver because they had attacked him with a butcher knife and an axe, and he denied making the statement. The officers were' put on the stand and testified that Mackie made the statement to them.
The trial of the case was had at a special term of the circuit court regularly called by the circuit judge, for the purpose, apparently, of trying the general list of criminal oases. Mackie had already been -indicted at the previous regular October term of the circuit court, while he was an escape.
When court convened it was discovered that the jury box was entirely exhausted, there being no names whatever in the box from which to draw a jury. It also appeared that the judge had ordered the clerk to summon a venire of thirty regular jurors for the term, which venire had been summoned and was present. When it appeared to the judge that the jury box was exhausted, he adjudicated that no jury had been drawn, and he pro
ceeded under the statute to issue a
venire facias
to be served by the sheriff, and in that way secured a jury of thirty for the term.
A special venire was demanded by the appellant, Mackie, and the court issued the writ for it, and the sheriff executed the writ by summoning the special venire to try the appellant, as the statute provides when there are no names in the jury box. The jury was finally selected, the defendant not having exhausted all of his challenges, and the trial proceeded to verdict and judgment. The errors complained of by the appellant, and urged for reversal of the judgement of the lower court, will now be taken up, discussed, and disposed of in the order in which they are presented on this appeal.
First, it is contended that the organization of the court was Void, and that it could not function because there was ¿o jury summoned as a part of the court, and that a court without a jury is not a court, and that the judgments of it are therefore void; and no notice of the special term was given; and that the sheriff could not summon the jury because he was a witness in the case. We think there is no merit in the contentions, because the court was regularly called and organized, and the fact that no jury was summoned because the jury box was exhausted did not render the organization of the court void. No jury could be summoned from the box by .the clerk before the court convened, because there was no jury box from which to draw them, and the court convened and the judge followed the statute in having the sheriff to g*o out and summon the jury, the proceeding was within the law. The record shows that notice of the special term was given. Also, see section 708, Hemingway’s Code.
It is well settled in this state that the fact the sheriff was a witness in the case does not of itself disqualify him from summoning the jury. No fraud or wrong was charged anywhere. No motion was made to disqualify or remove the sheriff.
Second, appellant complains that the court erred in not permitting- him and his counsel to confer alone with his witnesses, the Bolian children, who were also state witnesses. When request was made by counsel that they be permitted to confer alone with the Bolian children, aged seven, nine, eleven and fifteen years, the state objected, unless the court would appoint some officer or friend of the children to be present with them at the conference. It is shown that the children were of tender years, very much excited, and were afraid to go into a private conference with Mackie whom they had not seen since they saw him shoot Tarver and Fanny a,nd kill their mother; and the court viewed the situation, and held that defendant and his counsel could confer with these children but thought it was best under the circumstances to send the district attorney along with the children to allay their fear and excitement. Thereupon the conference was had with the district attorney present. No specific showing is made that injury was done the appellant by this action of the court.
We think the point is untenable because, while the general rule is that a defendant is entitled to confer alone with his witnesses, yet, in cases where the witnesses are children of tender years, timid and fearful under the circumstances, the court in his discretion may make an exception and require that third person, friendly to the children, shall be present during the conference.
This is a reasonable rule, and we think the order of the judge in that regard was not error. It may not be amiss to point out, however, that ordinarily in such a case the judge should select a third person, probably an officer of the» court, who is not the opposing’ attorney in the case; but we do not think the appointment o£ the district attorney here was an abuse of discretion resulting in injury to the defendant.
Third, it is urged that the court erred in not granting a change of venue moved for by the defendant. The contention is not maintainable, because this record discloses that the overwhelming proof offered on the issue of
whether or not there was a prejudgment or prejudice against the defendant in the county, to such an extent that he could not obtain a fair and impartial trial, shows that there was no such prejudgment, and that he could secure a fair and impartial trial in Pike county. The judge, therefore, was well within his discretion in overruling the motion for a change of venue on the proof offered on the motion.
Fourth, it is contended by counsel for the appellant that the witnesses Maggie and Walter Bolian, aged nine and seven years respectively, were incompetent to testify in the case, and that the court erred in permitting them to testify. We have carefully considered the point, and have reached the conclusion that it cannot avail the appellant because the record shows the two children were intelligent, understood the oath reasonably well and the penalty for testifying falsely, and that they qualified under the law as being competent to testify in the case. The authorities hold that children much younger than these are competent to testify where their qualifications as to intelligence, education, and the understanding of the oath are shown. See
Peters
v. State, 106 Miss. 333, 63 So. 666.
Fifth, it is contended the court erred in admitting the testimony showing the shooting of young Tarver and Fanny Bolian by the appellant. It is claimed this testimony as to the shooting of Tarver and Fanny was incompetent, because it was no part of the
res gestae
on the charge of shooting: Mrs. Bolian; that is, it was not part of the same transaction, but were separate crimes about which the testimony was incompetent on the trial for the murder of Mrs. Bolian.
•It will be remembered the proof shows that when Maclde had shot Mrs. Bolian and Tarver he then immediately began to chase Fanny, who was running away from the house, and overtook her about a quarter of a mile’ from the house while she was still running to get away, and there shot her. The whole criminal transaction occurred in a very short time and was continuous
from the time Mackie shot Mrs. Bolian until he shot Fanny. Mackie, a few days before the killing, had threatened to kill the whole family. When he approached Mrs. Bolian and Fanny with the pistol in his hand, he said, “I am g’oing to kill every damn one of you.” lie carried out his purpose and design as far and as soon as he could. Tarver was actually present and was killed at the time Mrs. Bdlian was shot, and Fanny was attempting to escape from the scene when she was overtaken and shot by Mackie.
We think the testimony as to the shooting of Tarver and Fanny was competent, because it was part of the same transaction as the killing of Mrs. Bolian. It was a part of the
res gestae
and admissible for that reason, and went to show the motive of the killing of Mrs. Bolian and to contradict the defense of accidental homicide.
Sixth, it is contended in the brief of counsel that the court erred in failing to furnish the defendant a copy of the list of the special venire an entire day before the trial. This point was abandoned by counsel for the appellant in the oral argument, but we shall dispose of it by saying there is no merit in it, because the list was furnished twenty-four hours before the trial exactly as requested by the defendant, and no objection was made at the time as to proceeding to trial, and furthermore, no request for the list was made in writing as'required by the statute.
Seventh, counsel for defendant insist that it was- error to allow the state to contradict and impeach the defendant on immaterial matters. From an examination of the record we think the point is not well taken, because the matters about which the defendant was cross-examined while he was on the stand were relevant and were proper for impeachment-, because they went to contradict the defense testified to by the appellant.
Eighth, it is urged by the appellant that instruction No. 3 granted the state was error because it told the jury that if they believed certain facts beyond all reasonable doubt, that their verdict will be: “We, the jury,
find the defendant guilty as charged.” The exact point made is that this instruction tells the jury that if they believe he is guilty they should return only the verdict of guilty as charged which inflicts the death penalty, whereas the jury should have been told that they might fix the punishment at imprisonment for life if they found him guilty as charged.
We are unable to agree with counsel in this contention, for the reason that the court gave other instructions in which it told the jury that if they found him guilty as charged they could fix the punishment at death or at imprisonment for life. The instructions must be taken and considered together; therefore we see no error of the court in granting the instruction complained of.
Taking the record as a whole we are of opinion the appellant received a fair and impartial trial, and that the jury was well warranted in finding him guilty1 as charged. It is obvious that the jury was justified in disbelieving that Mackie accidentally shot Mrs. Bolia-n in the back, and then accidentally shot Tarver and Fanny, one in the back and the other in the stomach after chasing the latter for quite a distance from the home. The overwhelming proof in the record is to the contrary, and was believed by the jury in finding him guilty as charged in the indictment.
The judgment of the lower court is affirmed, and Friday, May 22, 1925, fixed as the date of execution.
Affirmed.