Wetzel v. State , 225 Miss. 450 ( 1954 )

Ethridge, J.

Appellant William Alvin Wetzel was convicted in the Circnit Court of Sunflower County of the murder of Edgar G. (Sonny) McGraw, and was sentenced to death. On this appeal he argues four assignments of error: (1) The State’s evidence was insufficient to establish appellant’s guilt beyond a reasonable doubt, being inconsistent and contradicted in part by physical facts; (2) the denial of a continuance; (3) the refusal of two instructions requested by appellant; and (4) the cross-examination by the district attorney of six witnesses for appellant concerning prior convictions.

The killing occurred on Tuesday afternoon, April 14, 1953, between 1 and 2 P.M. The scene was a cornfield on the grounds of the Mississippi State Penitentiary at Parchman. The murdered man was Edgar G. (Sonny) McGraw. McGraw, James L. McKnight and Jack Watson were convicted in Pike County of the same offense, grand larceny. McGraw turned “State’s evidence” against McKnight and Watson. McKnight pleaded guilty. McGraw received a sentence of two years, and McKnight and Watson considerably longer sentences. On April 13, Monday, McGraw and McKnight were assigned to Camp 5 at the penitentiary, and Watson to Camp 6. McGraw was slain the next afternoon.

The State’s case was established by three eye-witnesses to the killing, by another witness who saw Wetzel with the knife immediately after the stabbing, by the testimony of another witness, McKnight, concerning certain threats by Wetzel toward deceased, and other evidence hereinafter referred to.

Andrew Warren, serving a term for cattle theft, was working as a’water boy and driving a mule-drawn water cart, on which there were large barrels of drinking water. The cornfield in which the men were working was west of a railroad, and to the west of the cornfield was a 16-foot wide turnrow, uncultivated, upon which vehicles and farming equipment were turned while working the field. There were seventy-two convicts working the field, in thirty-six rows, two men to a row. Corn was growing in the field, and the men were planting peas or beans between the corn, which apparently was not high. The front man would chop a hole for the seed, and the second man would drop the seed in the hole and cover it. The north row of men was called the lead row, upon which apparently the faster workers were placed. The south row was called the count-row, and the center row the swing-row. "Warren’s water cart was situated on the north side of the turn-row. He apparently was sitting or standing on the water cart when the cutting occurred. The men from Camp 5 were under the control of a civilian guard named Captain Dye. Under him were four trusty guards called shooters, stationed around the four corners of the working area. On the northwest corner, to the north of the water cart, was E. J. Brooks, a trusty, and on the southwest corner was another trusty-guard or shooter, Jack Brown. The men working the field had started on its west side, gone to the east end, and after turning had almost completed the second row, working west. Most of them were near to the turnrow, and a number were on it. All of the witnesses who saw any part of the event were convicts.

Warren had placed two five-gallon water buckets slightly south of the middle row. He was on his water cart about fifty feet north of the buckets when the killing occurred. He testified that he saw McGraw step out of line to get water, that Jones knocked a hoe out of McGraw’s hand, Sorber grabbed McGraw, pulled his head back by the hair, and put his hand over his mouth; that Harrison stood in front of him, and appellant Wetzel ran up behind McGraw, put his hand on his left shoulder, and with a knife cut McGraw’s throat. Warren screamed for Captain Dye. McGraw tried to run back to the water cart to the north. Warren said lie saw Wetzel give the knife to Sorber, but he does not know what Sorber did with it. He said that the cutting occurred about twenty-eight feet south of the water buckets, which would make Warren seventy-eight feet north of where the slaying occurred. McGraw died in about four minutes. The prison physician testified that McGraw’s death was caused by the cut, which was about three inches long and two inches deep, on the right side of his neck, extending from the Adam’s apple area. McGraw also had a straight, smooth knife wound on the inside of three fingers of his left hand.

James L. McKnight was serving a term for a burglary, along with McGraw and Watson. McKnight had pleaded guilty, but as previously stated McGraw had testified for the State. Watson was in Camp 6. McKnight said that for several days he was in the Hinds County Jail in Jackson with Wetzel and Watson. He heard them talking about McGraw turning State’s evidence. Wetzel told him that if McGraw were a “stool pigeon” he would have a hard time at the penitentiary. He heard Wetzel and Watson talking about Jones and Sorber, and he concluded that they had been in jail in Jackson before he got there. When McKnight was assigned to Camp 5 on Monday afternoon, the day before the killing, Wetzel, who knew him, asked him about his and Watson’s case and whether McGraw turned State’s evidence. McKnight said that he told Wetzel that Watson got thirty years, and McGraw got two years. Wetzel then stated to McKnight that “he told Jack Watson he would take care of Sonny McGraw if he came to the camp where he was.” McKnight said that when they got to the field the next morning Captain Dye said that he understood that they had the man who had “squealed”, thus calling- to the attention of the convicts McGraw’s presence. The men returned to their camp about 11 A.M. and went back to work in the field at 1 P.M. McKnight said that he did not see the stabbing, but heard Wetzel say that McGraw “probably cut Ms own throat”. He had fiMshed Ms row, had a drink of water, and had sat down south of the stabbing when it occurred. He admitted that he did not like McGraw and at the trial in Magnolia he threatened to kill Mm with a knife. But he said he was angry at that time and he had no part in the killing.

Another eye-witness was Namon Bangs, serving a term for murder. He said that he saw Wetzel, Jones and Sorber hold McG-raw, and Wetzel stab McG-raw with a kmfe. Wetzel handed the knife to Sorber, who buried it in a blue handkerchief. Bangs said that he was about ten feet away when it occurred. Another eyewitness was Jack Brown, a trusty-guard, serving a sentence for murder. He was south of the cutting, looking north toward the water buckets. He testified that he saw Wetzel, Sorber, Jones and Harrison go with McG-raw to the water bucket, and then all five men walked south, toward Brown. Jones slapped the hoe out of McG-raw’s hand, Sorber held McG-raw by the hair of his head, with his other hand around in front of him, and Wetzel “caught him on the left shoulder and put his knee in his back, and cut his throat.”

Mike Potapov, Jr. did not see the actual cutting, but saw Wetzel with a knife immediately after it happened, and saw Wetzel hand the knife to Sorber, who wrapped it in a blue handkerchief, leaned over like he was tying Ms shoe, and covered the knife and handkerchief up. He saw Jones, Wetzel, Sorber and Harrison near McG-raw. The witness said that he was going to the water bucket when the cutting occurred, and that he was within eight to ten feet of it. Potapov further testified that during the dinner period before the cutting occurred, he was in the camp building or cage in the aisle next to Wetzel; that he saw Wetzel go in a locker under his bed and take out a red-handled jackknife; and that the knife taken by Wetzel was similar to that found buried under the earth on the edge of the turnrow in a blue and white polka-dotted handkerchief shortly after the killing.

Sgt. D. C. Tomlinson was in charge of Camp 5. He came up after the cutting. He noticed a pile of dirt on the side of a small drain next to the rows, and found under it a blue handkerchief with white polka dots, wrapped around a red jackknife, which Potapov testified was similar to that he had observed Wetzel take from his foot-locker during the noon hour. Tomlinson stated that a record is kept of all incoming packages to the prisoners; that about two weeks before, Sorber’s sister in Dayton, Ohio, sent him a package containing four blue handkerchiefs with white polka dots. The handkerchief wrapped around the knife and dug out of the ground by the drain after the killing was similar to the handkerchiefs received by Sorber. On the morning after McG-raw’s death, Tomlinson said that he found the other three polka-dotted handkerchiefs in Sorber’s foot-locker, and that they were similar to the one wrapped around the knife found after the killing. There was no blood on the knife and apparently not on the handkerchief wrapped around it. The witness stated that to his knowledge there were no other similar handkerchiefs at the camp.

Wetzel offered fifteen witnesses for his defense. Dalton testified that Sorber was near him working when McGrraw was cut, but he did not know where Wetzel was when the killing took place. He did not think much of a “squealer”, and if he knew who killed McGrraw, he would not tell the jury. Williams said that he and Sorber were working about forty feet in the cornfield, and Sorber was just behind him. He did not know where Wetzel or Jones were, and did not see the cutting. He stated that after the line came toward the turnrow, Jones crossed the field and talked to Sorber. Jones told Sorber “The kid is ready.” Stanley testified that Sorber was in the field working fifteen to twenty-five feet behind him, and he was talking to Sorber when MeG-raw cried out. He did not know where Wetzel, Jones and Harrison were. He had no use for a man who turned State’s evidence, and if he knew who cut McG-raw, he would not tell, since he did not want his throat cut.

Cecil Bear did not see the cutting, hut he said that Wetzel at that time was standing next to him at the water bucket, to the north, and was not down where the cutting took place; that Sorber was out in the field working at the time. He denied that after the cutting he poured water on Wetzel’s hands. Thomas Butters and Joe Castro did not see the cutting, but said that Wetzel was not where it took place, but was near them at the water bucket. Castro had previously signed a written statement that he did not know where Wetzel, Jones and Sorber were at the time of the killing. Several other witnesses for defendant testified that there were a good many men on the turnrow at the time of the cutting, in addition to Wetzel, Jones, Sorber and Harrison; and that after McG-raw was cut he ran north toward the water cart and into several men. Sgt. Tomlinson said that about fourteen men had some blood on them after the cutting.

Appellant is twenty-eight years of age, from Seneca Falls, New York, serving a term for armed robbery. He admitted that for several days he was in the Hinds County Jail in Jackson, and that Watson and McKnight were there also. He does not recall any conversation with McKnight, but admitted that he talked to Watson several times. However, he said that Watson did most of the talking and that he did not say much. He denied that he had told Watson or McKnight that McG-raw would have a hard time at Parchman, and that he had stated to Watson that he would take care of McG-raw there. He said that he might have discussed McG-raw with Watson, because the story was on the radio. Wetzel went to Parchman on March 22, 1953. He had never done farm work before, was tired at night, and did not associate with the other men, including Jones or Sorber. He stated that McKnight introduced himself, but denied that he had made any threat about McGraw. He denied that he had a knife and that he took a knife out of his foot-locker. He said that when he came out on the turnrow he went to the water bucket. A number of men were there, and he got a dipper and was drinking water when McGraw ran through them with his throat cut, spattering blood on about fourteen people. He got some blood on the front, left side, and back of his pants. He stated that he did not kill McGraw, arid did not participate in any killing of him. He did not see the cutting and does not know who did it.

In rebuttal, George Harmon said that he saw Cecil Bear pour water on Wetzel’s hands, and Wetzel was rubbing them together. He heard Wetzel state that if McGraw “was a rat, he got just what he deserved and if anybody seen it, it was best that they didn’t talk for if they did, they would get just what he did.” He admitted on cross-examination that he had previously made a statement to appellant’s attorneys that he saw McGraw struggling with Jones, Sorber, Bear and La Fontaine.

First. The foregoing is a substantial summary of the testimony. We have carefully considered it. It was ample to support the verdict of the jury. Wetzel’s defense consisted of a general denial by him, and an alibi which placed him near the water buckets, about twenty-eight feet north of the killing. At least three of his witnesses and appellant tended to confirm that version. On the other hand, the State offered three witnesses who testified unequivocally that they were eye-witnesses to the killing, and that appellant was the man with the knife who cut McGraw’s throat. They were Warren, Bangs and Brown. In addition, Potapov testified that he saw Wetzel with the knife immediately after. McGraw’s throat was cut, and Wetzel hand it to Sorber, who wrapped it in a handkerchief and buried it. Cf. Massengill v. State, 216 Miss. 278, 285, 62 So. 2d 330 (1953). McKnigiit’s testimony, as well as other evidence, offered an ample motive, the desire of Wetzel and his accomplices to punish an informer against Watson. A red-handled jackknife wrapped up in a blue and white polka-dotted handkerchief was found near the scene of the killing. Potapov said that during the noon hour he saw Wetzel take out of his locker a similar knife and put it in his pocket. Other State witnesses saw Sorber bury a knife, wrapped in a blue handkerchief with white polka dots. This handkerchief was directly related to Sorber by the testimony of Sgt. Tomlinson. After the cutting Harmon saw Cecil Bear pour water on Wetzel’s hands and Wetzel rubbing them together. Jones and Sorber had at least one conversation between them before they got to the turnrow, during which Jones told Sorber “The kid is ready.” In the light of all of this testimony, which the jury could, and manifestly did, accept as true, we think that the great weight of the evidence in this case points toward appellant’s guilt of this murder. Practically all of the witnesses for both sides were convicts. Although at common law a person convicted of most felonies was disqualified as a witness, Code Sec. 1692 removes that disqualification. The conviction may be used to impeach his credibility, and that is a question for the jury. Code Sec. 1693; 58 Am. Jur., Witnesses, Secs. 137 — 143.

In all material particulars the State’s evidence is consistent and reasonable, and supported by physical facts. It appears that there were a number of other convicts on the turnrow when the killing occurred, but Wetzel and his three accomplices were bunched up together around McG-raw about twenty-eight feet south of the water buckets. The delay of several days by Warren and Brown in reporting what they saw was not unusual under the circumstances. Both of these men were convicts, and may very well have feared that they might receive the same treatment which McGraw did. It is true that there was no hlood on the knife discovered by the officers, but either Wetzel or Sorber could very well have wiped it off before burying it. Whether Bangs’ testimony or his earlier statement to appellant’s attorney should be believed was a question for the jury. The mere fact that John Payne, Chairman of the State Parole Board, participated in the investigation of the crime does not tend to show that the witnesses were offered any hope of reward for testifying for the State. Payne testified that he made no offers of clemency to any of the prisoners. He was an experienced police officer, and the use of that experience in this investigation was not unreasonable. Nor was it unreasonable that McGraw was one of the first men to complete his row and approach the water buckets, since the newer prisoners might well be inclined to work faster than the older ones, or McGraw might have desired to get ahead for his own protection.

The jury was well justified in finding that appellant’s motive or reason for killing the deceased was to punish him for informing or “squealing” on his coindictees, Watson and McKnight. Appellant is a hardened criminal with a long record of crime over many years. The testimony, particularly that by McKnight, certain witnesses for appellant who admitted that they would not disclose the identity of the murderer if they knew him, and J. D. Gibbs, supports the State’s contention that appellant killed McGraw because he informed on other criminals. The infantile nature of this attitude in a criminal’s mind does not negative its existence.

Second. At the beginning of the trial appellant made a motion for a continuance, on the ground that the newspaper publicity about the crime had received such wide notice in Sunflower County as to prejudice the minds of prospective jurors against defendant, so that he could not receive a fair and impartial trial. No motion for a change of venue was made. Ordinarily, popular excitement or prejudice is not a sufficient ground for a continuance in criminal cases in the absence of unusual or extraordinary circumstances. The correct remedy is a change of venue, but a continuance would be proper where unusual circumstances exist. 12 Am. Jur., Continuances, Sec. 18; 17 C. J. S., Continuances, Secs. 75, 78. To support his position, appellant relies upon the special concurring opinion of two judges in Shepherd v. Florida, 341 U. S. 50, 71 S. Ct. 549, 95 L. Ed. 740 (1950). See also Leviton v. U. S., 193 F. 2d 848, 866, certiorari denied, 343 U. S. 946, 72 Sup. Ct. 860 (1952); Palakiko v. Harper, 209 F. 2d 75, 96-98 (CCA 9th 1953). However, the facts in the Shepherd case are in no way analogous to the instant one. Here appellant offered no testimony in support of his motion. He only introduced in evidence two news stories from Indianola and Greenville newspapers, dated September 15, which was six days before the trial began. Those articles are essentially objective newspaper reporting of the approaching trial. They would certainly not cause any prejudice against appellant. The crime was committed on April 14, 1953, and the trial was on September 21, 1953. Apparently all of the material witnesses for both sides testified. The rights of appellant were fully protected. He had a fair and impartial trial. Moreover, the motion for continuance did not comply with the statutory and decisional requirements for such a motion. Assuredly no injustice to appellant resulted from the denial of his motion for continuance. Code of 1942, Sec. 1520. There is no proof whatever in this record of any hostility or prejudice against appellant before or during his trial. Cf. Garner v. State, 202 Miss. 21, 30 So. 2d 413 (1947).

Third. Appellant complains of the refusal by the trial court of two substantially similar instructions requested by him. One of them stated: “The Court instructs the jury for the defendant that if you believe from the testimony in this case that any witness who has testified, was actuated by coercion, or fear, promise, or hope of reward, hope of immunity, or pardon, then the testimony of such witness should be weighed by you with great care and caution, and that such testimony should be entirely disregarded, if you believe it to be untrue.”

Appellant concedes that there was no direct testimony as to coercion, fear, promise, or hope of reward affecting the testimony of any witness, but he argues that their existence is manifest from the record, and that therefore he was entitled to such instructions. Appellant was granted by the trial court two other instructions which fully submitted this point to the jury. One told the jurors that they should consider the reasonableness or unreasonableness of the testimony, that they were not required to believe the story told by any witness, and that they had the right to consider the, motives, demeanor, and background shown in the evidence, and to form their own judgment from what they had heard and seen. Another instruction granted appellant advised the jury that they were the sole judge of the credibility of the witnesses, and they could wholly disregard the testimony of any witness which they did not believe to be true. These granted instructions fully submitted this point to the jury. Moreover, an instruction must be based upon the evidence. The requested and refused instructions were erroneous because there was no evidence before the jury tending to establish coercion or hope of reward on the part of any witness, and also because they were on the weight of the evidence. Parnell v. State, 211 Miss. 100, 50 So. 2d 925 (1951); State v. Jennings, 50 So. 2d 352 (Miss. 1951).

Fourth. Appellant also argues that prejudicial error was committed in the district attorney’s cross-examination of five witnesses for the defendant, and the defendant, concerning former convictions of crimes. Code of 1942, Sec. 1693, permits the examination of a witness concerning his conviction of a crime. This examination must be limited essentially to the identity of the crime and the fact of the conviction. All five of the witnesses for defendant, and the defendant himself, had been convicted oil a number of occasions. The case is unusual for that reason. The district attorney’s cross-examination, in our opinion, stayed substantially within the limits established by the decisions interpreting Sec. 1693, and was a reasonable cross-examination under the peculiar circumstances here. Moreover, appellant made no objection to any of this interrogation, except as to. one question asked the defendant, and that objection was promptly sustained by the trial court. Appellant made no motion for a mistrial. So even if there were error in the cross-examination, appellant failed to preserve that point on appeal.

Appellant had a fair and impartial trial. He has been ably represented by counsel both in the trial court and in this Court. On this record his guilt of this murder is clearly shown. The punishment imposed by the jury is the inevitable result of the mandate of the sixth commandment, as codified in our common law and statutes. Hence the judgment of conviction and sentence of the trial court is affirmed.

Affirmed, and Thursday, January 20, 1955, is hereby fixed as the date for the execution of the death sentence in the manner provided by law.

All nine of the judges concur.