This case appears before this Court for the second time. Our affirmance upon the first appeal, 201 Miss. 410, 29 So.2d 96, was reversed under directions of the United States Supreme Court.332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76, 1 A.L.R. 2d 1286; Id.,203 Miss. 265, 33 So.2d 456. This appeal is from a second conviction of murder, the judgment imposing the death penalty.
(Hn 1) We examine first the refusal of the trial court to quash the indictment upon the ground that, because of an alleged systematic and deliberate exclusion of Negroes from the jury lists, the indictment was found by an illegal grand jury. Reliance is placed upon the assertion that this was the basis for the former reversal, and that the situation has remained unchanged. Let us investigate the evidence of an altered procedure as disclosed by this record.
The circuit clerk testified with corroboration and without dispute that there were properly registered by him during the period between January and July 1948, 11,437 persons, of whom 209 were Negroes. The board of supervisors at a proper adjourned meeting on June 29, 1948, filled the jury boxes, theretofore depleted, with names furnished by the respective members of the board. There
were 617 names supplied by the supervisor from beat one. In this list were 12 Negroes. From beat two, there were supplied 115 names, selected in alphabetical order. There was found only one member of the Negro race. His name was included. From beat three, there were 150 names, including 3 Negroes. These were also chosen alphabetically. In this beat, there were only 4 Negroes registered, one of whom was disqualified for jury service, wherefore 100% of all qualified colored voters were included. In beat four, there was only 1 Negro registered. Whether this person was a man or woman was not shown. In beat five, there were only 5 Negroes registered. One of these was disqualified for the significant reason that he had recently served upon a jury. Of the remainder, it was not shown whether they were men or women.
It will be seen that the number of Negroes registered was less than two per cent of the total. There was a higher percentage of Negroes among those summoned under the venire facias. On the grand jury, there were twenty men of whom three were negroes. There was one Negro upon the list for petit jury service.
The testimony is uncontradicted that the members of the board and the officers of the court were alert to their duty, were advised of the recent admonitions of the Supreme Court, and in a purposeful attempt to comply with constitutional requirements, had impartially filled the boxes from the registration lists with men of sound judgment and fair character. It was shown that a comparatively few Negroes ever registered, and that this list included both men and women, and that out of this total very few had qualified for jury service by the payment of a poll tax. Although the figures could readily be magnified into argumentative material for a charge of discrimination against members of the white race, no such contention is of course made.
It would unjustly discredit this Court to assume that it lacked an awareness of the constitutional prohibitions against discrimination in such cases as an infringement
of the due process and equal protection clauses. Long prior to the emergence of causes celebres which have been headlined as heralds of a rediscovery of civil rights, this Court boldly condemned a purposeful discrimination against Negroes in the matter of jury service. Farrow v. State, 91 Miss. 509, 45 So. 619. See also Hampton v. State, 88 Miss. 257, 40 So. 545, 117 Am. St. Rep. 740. In the first appeal, Patton v. State, 201 Miss. 410, 29 So.2d 96, we were constrained to hold that a witting exclusion of Negroes as such from the jury lists was not deducible from the circumstances that negroes had not in the past actually served on juries in Lauderdale County. We drew upon a judicial knowledge of conditions which we deemed were fully explanatory of this circumstance without inciting any adverse presumption. We borrowed the conclusions of Williams v. State,170 U.S. 213, 18 S.Ct. 583, 42 L.Ed. 1012, wherein the failure of citizens of the colored race to meet the qualifications for jury service could be taken into account even though as an ultimate result there may arise an apparent, though incidental, discrimination.
Our reasoning was found to be in error by the Supreme Court of the United States which found in the statistics shown, a presumption of purposeful discrimination. It was in an attempt to remove the basis for such presumption that the board of supervisors, under legal advice, combed the meager roster of qualified Negroes who had since seen fit to register under an awakened sense of their civil rights, and had been aroused from a lethargy which had theretofore brought the comfort of an absolution from civil duties. The result was that the ratio of Negroes on the grand jury was higher than the ratio of Negroes upon the registration list. It would unjustly impugn both the wisdom and practical common sense of that lofty tribunal to infer that a dereliction, albeit deduced from continued course of conduct, may not be at once effectively remedied by a purposeful and conscientious compliance. Neither logic nor reason could support a
contention that reformation must be acknowledged only by a commensurate probationary period during which sincerity must ripen to a gradual maturity from a new seedling of judicial decision. Discrimination was deduced circumstantially from an asserted practice of long standing; compliance is now established directly by unassailed facts. We conclude that the lists were properly prepared, and that no traces of deliberate or incidental discrimination are discernible.
(Hn 2) We pass to the appellant's motion for a change of venue, and the alleged error in its denial. The motion, supported by affidavits, alleged local prejudice. We have thoroughly examined the testimony for and against the motion. A similar motion was overruled in the former trial, which action we then affirmed. We do not find the testimony to make out a stronger case. Witnesses from all parts of the county supported the contention that the defendant could get a fair and impartial trial. The interest manifested in the trial as such, was no more than usual. There were no evidences of special precautions or of the necessity therefor. During the hearing of the motion there were only about fifteen persons present, including officers of the court, attorneys and spectators. We do not find the discretion of the trial judge was abused.
Overruling of a motion for a continuance is assigned for error. It was based upon the same grounds upon which the motion for change of venue was founded. Views heretofore expressed must dispose of this assignment. (Hn 3) A motion of similar import was later overruled.
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This case appears before this Court for the second time. Our affirmance upon the first appeal, 201 Miss. 410, 29 So.2d 96, was reversed under directions of the United States Supreme Court.332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76, 1 A.L.R. 2d 1286; Id.,203 Miss. 265, 33 So.2d 456. This appeal is from a second conviction of murder, the judgment imposing the death penalty.
(Hn 1) We examine first the refusal of the trial court to quash the indictment upon the ground that, because of an alleged systematic and deliberate exclusion of Negroes from the jury lists, the indictment was found by an illegal grand jury. Reliance is placed upon the assertion that this was the basis for the former reversal, and that the situation has remained unchanged. Let us investigate the evidence of an altered procedure as disclosed by this record.
The circuit clerk testified with corroboration and without dispute that there were properly registered by him during the period between January and July 1948, 11,437 persons, of whom 209 were Negroes. The board of supervisors at a proper adjourned meeting on June 29, 1948, filled the jury boxes, theretofore depleted, with names furnished by the respective members of the board. There
were 617 names supplied by the supervisor from beat one. In this list were 12 Negroes. From beat two, there were supplied 115 names, selected in alphabetical order. There was found only one member of the Negro race. His name was included. From beat three, there were 150 names, including 3 Negroes. These were also chosen alphabetically. In this beat, there were only 4 Negroes registered, one of whom was disqualified for jury service, wherefore 100% of all qualified colored voters were included. In beat four, there was only 1 Negro registered. Whether this person was a man or woman was not shown. In beat five, there were only 5 Negroes registered. One of these was disqualified for the significant reason that he had recently served upon a jury. Of the remainder, it was not shown whether they were men or women.
It will be seen that the number of Negroes registered was less than two per cent of the total. There was a higher percentage of Negroes among those summoned under the venire facias. On the grand jury, there were twenty men of whom three were negroes. There was one Negro upon the list for petit jury service.
The testimony is uncontradicted that the members of the board and the officers of the court were alert to their duty, were advised of the recent admonitions of the Supreme Court, and in a purposeful attempt to comply with constitutional requirements, had impartially filled the boxes from the registration lists with men of sound judgment and fair character. It was shown that a comparatively few Negroes ever registered, and that this list included both men and women, and that out of this total very few had qualified for jury service by the payment of a poll tax. Although the figures could readily be magnified into argumentative material for a charge of discrimination against members of the white race, no such contention is of course made.
It would unjustly discredit this Court to assume that it lacked an awareness of the constitutional prohibitions against discrimination in such cases as an infringement
of the due process and equal protection clauses. Long prior to the emergence of causes celebres which have been headlined as heralds of a rediscovery of civil rights, this Court boldly condemned a purposeful discrimination against Negroes in the matter of jury service. Farrow v. State, 91 Miss. 509, 45 So. 619. See also Hampton v. State, 88 Miss. 257, 40 So. 545, 117 Am. St. Rep. 740. In the first appeal, Patton v. State, 201 Miss. 410, 29 So.2d 96, we were constrained to hold that a witting exclusion of Negroes as such from the jury lists was not deducible from the circumstances that negroes had not in the past actually served on juries in Lauderdale County. We drew upon a judicial knowledge of conditions which we deemed were fully explanatory of this circumstance without inciting any adverse presumption. We borrowed the conclusions of Williams v. State,170 U.S. 213, 18 S.Ct. 583, 42 L.Ed. 1012, wherein the failure of citizens of the colored race to meet the qualifications for jury service could be taken into account even though as an ultimate result there may arise an apparent, though incidental, discrimination.
Our reasoning was found to be in error by the Supreme Court of the United States which found in the statistics shown, a presumption of purposeful discrimination. It was in an attempt to remove the basis for such presumption that the board of supervisors, under legal advice, combed the meager roster of qualified Negroes who had since seen fit to register under an awakened sense of their civil rights, and had been aroused from a lethargy which had theretofore brought the comfort of an absolution from civil duties. The result was that the ratio of Negroes on the grand jury was higher than the ratio of Negroes upon the registration list. It would unjustly impugn both the wisdom and practical common sense of that lofty tribunal to infer that a dereliction, albeit deduced from continued course of conduct, may not be at once effectively remedied by a purposeful and conscientious compliance. Neither logic nor reason could support a
contention that reformation must be acknowledged only by a commensurate probationary period during which sincerity must ripen to a gradual maturity from a new seedling of judicial decision. Discrimination was deduced circumstantially from an asserted practice of long standing; compliance is now established directly by unassailed facts. We conclude that the lists were properly prepared, and that no traces of deliberate or incidental discrimination are discernible.
(Hn 2) We pass to the appellant's motion for a change of venue, and the alleged error in its denial. The motion, supported by affidavits, alleged local prejudice. We have thoroughly examined the testimony for and against the motion. A similar motion was overruled in the former trial, which action we then affirmed. We do not find the testimony to make out a stronger case. Witnesses from all parts of the county supported the contention that the defendant could get a fair and impartial trial. The interest manifested in the trial as such, was no more than usual. There were no evidences of special precautions or of the necessity therefor. During the hearing of the motion there were only about fifteen persons present, including officers of the court, attorneys and spectators. We do not find the discretion of the trial judge was abused.
Overruling of a motion for a continuance is assigned for error. It was based upon the same grounds upon which the motion for change of venue was founded. Views heretofore expressed must dispose of this assignment. (Hn 3) A motion of similar import was later overruled. It invoked the provisions of Code 1942, Section 2505, whereunder it is provided that a defendant in a capital case, upon demand, may have a certified copy of the indictment and of the special venire "delivered to him or his counsel at least one [full] day before said trial." It is conceded that these instruments were delivered by the sheriff to the defendant in person Friday night. The trial was set the following Monday. Yet, it is argued that service thereof upon the defendant, although
in technical compliance with the statute, was not practically effective because of the alleged illiteracy of the defendant. The State showed, however, that his counsel was by the sheriff notified of his action on Saturday morning. We are unable to detect any prejudice to the defendant under these circumstances.
(Hn 4) During the trial, the defendant moved to quash the special venire because under the voir dire examination there appeared only one member of the Negro race. There was no showing how many other, if any, Negroes were summoned and failed to respond. We find no error here in overruling this motion.
(Hn 5) The defendant during the trial renewed his motion for a change of venue upon the ground that, upon the voir dire examination, seven out of the first twenty-one jurors called were disqualified because of fixed opinions. It was further asserted that there was a large number of deputy sheriffs stationed about the courtroom. The latter allegation lacks record support. Nor do we find in the excusing of the seven jurors any implication inconsistent with a purpose to guarantee a fair and unbiased jury. Moreover, the defendant, although entitled to twelve peremptory challenges, found occasion to exercise only eight.
[6] Errors predicated upon the instructions revolve about (Hn6) a contention that the defendant was entitled to a directed verdict of acquittal and that any verdict of guilt could not rise above the degree of manslaughter. The defendant was refused an instruction authorizing a verdict of manslaughter under appropriate conditions. However, a substantially similar instruction was given which accorded the jury such alternative.
We are brought to the merits of the case, a discussion of which will encompass certain objections to testimony.
On Monday, February 11, 1946, the body of one Jim Meadows was found on the floor of his night club, "Rock Hill." He was badly bruised and disfigured by blows and scratches. There was a clean wound about three inches
wide extending through the chest wall. His battered and bloody body bore fifteen cuts from the head to the shoulders, and approximately fifty smaller cuts or scratches upon the torso. The appellant was arrested shortly thereafter. Tracks leading from the night club toward adjacent woodlands were found to fit the shoes of the appellant, conforming in minute detail to the unique contours of his shoes. There is no dispute that the homicide was committed by the appellant, who so testified upon the trial.
The plea is one of self-defense, and rests solely upon appellant's testimony. His explanation is that he had worked for the deceased some time before. At the time he left the employment, he claimed that Meadows owed him a sum of money; that Meadows refused to pay him, contending that the appellant had taken away property or supplies in excess of any alleged arrears. The subject of this debt was broached at intervals producing no tangible results, but only a sense of increasing irritation in Meadows. There is testimony that Meadows demanded that the matter be considered as closed. His insistence upon this point ranged in degree from a firm demand to a vague threat toward appellant if the matter was again adverted to.
On the morning of the homicide, the appellant came to the victim's place seeking reemployment, which purpose was enlarged by his own testimony: "I was going back out there with him to get a settlement." An agreement for reemployment was reached amicably and without incident. The two then proceeded into the night club. As soon as they entered, the appellant testifies that he asked Meadows "Now what we — how we going to get together on that other?" referring to the alleged debt.
As to what there happened, we are urged to invoke Weathersby v. State, 165 Miss. 207, 147 So. 481, 482, and the cases supported thereon in accepting the appellant's version of the affair. The gist of the cited case is that "where the defendant or the defendant's witnesses [is]
the only witnesses to the homicide, (his) version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge."
According to the appellant's version, upon mention of the alleged indebtedness, Meadows, after cursing him, struck him on the side of the head with an empty soft drink bottle case. The blow was sufficient to knock him against an adjoining wall. Then followed a short colloquy in which appellant disavowed any purpose to cause any "confusion." Whereupon, Meadows struck at him with another similar case. Appellant tried to evade Meadows and leave the room. In attempting to duck beneath the counter, he was caught and dragged back, being held by the collar by Meadows, who then struck him with a broom. When Meadows struck him again with a soft drink case, appellant hit him with a bottle with sufficient force to break it. They fell struggling together, with appellant underneath. The victim was still holding appellant by the collar and attempting to strike him with pieces of coal which lay near. At least one blow was thus made on appellant. After further tussling, appellant suffered blows on the head and arm. It was then that the appellant spied an iron poker about two and a half feet long, which he succeeded in grasping and with which he struck the deceased upon the head. This did not appear to faze Meadows and the struggle proceeded. Thereupon, the issue became centered upon possession of the poker. Appellant regained its possession and struck the deceased a final blow. When the defendant disengaged himself and was quitting the scene "Mr. Meadows was getting up when I went out."
We have detailed no blow by blow account of appellant's complete version. His conduct thereafter attains special prominence. Upon arising from the floor, he detected the pocketbook of the deceased and took possession of it. It was later found to contain over three hundred
dollars. He then took a coat and a lunch box. He also took the victim's hat. All of these articles were hidden in a nearby woods. In the lunch box was money and a fountain pen. The money was hidden in the ground within a glass jar.
After his arrest, he was stripped, and witnesses present testimony that he bore no scratches nor evidences of bodily injury. The officers testified that he voluntarily conducted them to where the stolen articles were cached, and these articles were completely identified as belonging to the deceased. No confession by the accused was sought to be introduced.
(Hn 7) It is found that the circumstances do not jibe at all with the pattern of the Weathersby case. The body of deceased was found, horribly mangled and almost unrecognizable, behind the counter about where the appellant alleged the struggle ensued. It appears physically impossible for the victim to have risen after the assault, and highly improbable that if still able to stand he would have suffered appellant, without further resistance, to take his goods. Appellant denies responsibility for the vicious and fatal chest wound which could not have been caused by an iron poker. Under the solemn duty to accord this appellant's appeal a conscientious and painstaking consideration, we have concluded, after a careful examination of the record, that the issue of guilt and its grade were issues for the jury.
(Hn 8) Although the discovery of the stolen articles was at the voluntary direction of the appellant, he complains that such discovery was a product of some mistreatment by the arresting officers. Waiving consideration of the repeated denial of any coercive measures, the articles themselves would in no event be inadmissible. Jordan v. State, 32 Miss. 382; Smith v. State,166 Miss. 893, 144 So. 471; Warren v. State, 174 Miss. 63,164 So. 234; McKelvey on Evidence, 5th Ed., Sec. 127; Wharton Criminal Evidence, 11th Ed., Sec. 600. The jury had a right to discount the appellant's version by finding that
the theft of the goods and money of deceased belied an assertion of a peaceful mission.
The defense of this case has been conducted with a zeal and resourcefulness which bespeaks a painstaking concern for the rights of one of its citizens. We share this concern, and have never stayed our hand in interposing the barrier of constitutional rights between the forces of vengeance or prejudice, which are at times the product of over-sensitive social relationships, and the life of its humblest citizen. McGee v. State, Miss., 26 So.2d 680, 685; McGee v. State, Miss.,33 So.2d 843; Magee v. State, 198 Miss. 642, 22 So.2d 245; Id., 200 Miss. 861, 27 So.2d 767; Id., 200 Miss. 861, 28 So.2d 854; Upton v. State, 192 Miss. 339, 6 So.2d 129. We cite these examples neither defensively nor apologetically, nor under any sense of need for justification. On the other hand, we are often reminded that our duty encompasses a concern for the rights of those citizens over the fresh earth of whose graves the blind striding of hot tempered zeal finds no stumbling in its frenzied rush to the aid of one to whose violent act this new mound is an accusing monument. It has been our solemn task to protect the life of the accused against an unjust taking with a solicitude which the jury found was not accorded by the accused to another humble claimant to the law's guardianship.
Other errors assigned are involved in our findings. We find no error, and are compelled to affirm the judgment and sentence.
Affirmed, and Friday, July 1, 1949, fixed as the day of execution.