Price v. State , 152 Miss. 625 ( 1929 )

^* Corpus Juris-Cyc. References: Criminal Law, 16CJ, section 9, p. 58, n. 87; Homicide, 30CJ, section 364, p. 151, n. 33; Indictments and Informations, 31CJ, section 47, p. 585, n. 47; section 384, p. 807, n. 81; section 385, p. 808, n. 93; section 392, p. 813, n. 3; p. 814, n. 5; As to effect of presence of unauthorized person in grand jury room as affecting indictment, see annotation in L.R.A. 1916D, 1123; 12 R.C.L. 1040; 2 R.C.L. Supp. 1534; 5 R.C.L. Supp. 672. The appellant, Owen Price, was indicted by the grand jury of Marshall county on a charge of manslaughter, and was tried and convicted of that offense, and from such conviction prosecutes this appeal.

The principal assignment of error is that the court erred in overruling the motion to quash the indictment because a petition was presented to the grand jury, or was circulated and signed by several persons and reached the grand jury room, and was in the grand jury room during some part of the session of the grand jury. It was alleged in the motion to quash the indictment that the first grand jury of said county, which convened after the homicide, and after the defendant was bound over to wait the action of the grand jury, failed and refused to indict the defendant; and that, after the first grand jury convened, and subsequent to the date of its adjournment, the friends and relatives of the deceased procured the writing of a petition by their private counsel, retained by them to prosecute, and circulated the same among their friends and kinspeople and sympathizers, praying the grand jury of said county to indict the defendant for said homicide; that such petition was presented to the grand jury which returned this indictment with intention to unlawfully influence the grand jury in its deliberation, and to procure the unlawful indictment of the defendant by the grand jury; and that the petition contained unsworn and ex parte statements relative to the alleged guilt of the defendant, and was signed by unsworn volunteers, who by this means procured their entry into the consideration of the grand jury, and had their private and personal wishes brought to bear upon the grand jury.

The petition referred to in the motion reads as follows: "To the General Public:

"We, the undersigned residents of the second district of Marshall county, Mississippi, are thoroughly familiar with the fact connected with the killing of Jarrett Kelley by Owens Price on the 2nd day of December 1926, at Mt. Pleasant, Miss., and feel that the ends of justice demand that an indictment be found against him, the said Owens Price; and that he should be brought to trial, and be tried by jury of his peers, and respectfully urged that the matter be submitted to the next grand jury with this end in view.

"This the 5th day of March, 1927."

In support of the motion to quash, the foreman of the grand jury was introduced and testified that he remembered that there was a petition in the grand jury room, and thought the petition presented him was the one that was there. He was asked the question as to whether the petition was considered by the grand jury, to which objection was made and objection sustained by the court. He testified that the petition was before the grand jury which returned the indictment. The defendant thereupon rested his evidence upon the motion, the court having reserved its ruling on the proof offered, and the defendant then asked to be permitted to reopen the proof on the motion to quash and introduce Mr. Bob Kelley to prove the petition and that it was before the grand jury. The counsel for the state stated, "That is admitted." Whereupon the motion to quash was overruled by the court and exception taken.

It was agreed that there was other testimony before the grand jury which found the indictment. It appears from the evidence that the appellant, Owen Price, shot Jarrett Kelley in the village of Mt. Pleasant in said county, Price firing four shots; two bullets took effect. It appears from the evidence that the wounds upon the body of the deceased were one small smooth hole about three inches from the left shoulder in the front chest; one small, round smooth hole about the same size under the shoulder blade about twelve inches below the neck band of his shirt, and there was one oblong, ragged hole at the edge of the hollow of his neck in front. This probably was the exit of the bullet fired into his back below the shoulder blade. One state witness testified that on the morning of the killing, just prior to it, he and the deceased were standing in front of Cookwood's store, and deceased was trimming his finger nails with his knife, and that Price drove up in a truck, parked it, and came toward the store. Just before Price got to where Kelley was, the witness turned and went into the store, and immediately he heard a shot and turned to look. Kelley grabbed his chest and turned to run, turned around the corner of the store toward the back and fell. He died soon afterwards.

Another witness for the state testified that he heard the shooting when it started, and turned around and saw Kelley, the deceased, "put his hands over his chest and bend over and broke to run;" that Price was shooting him all the time he was turning; that he ran around the corner of the building, and, when the deceased turned the corner, appellant shot him. Another witness testified that he was in Mt. Pleasant in front of Cookwood's store leaning against the door facing on the south side; that Mr. Price drove up in his truck, and parked twenty or thirty feet from the door; that Mr. Irby Gardner, Fenner Smith, and Mr. Price got out of the truck and came to the store; that Mr. Gardner and Mr. Smith came on in the store, and Mr. Price stepped up on the steps with one foot on the first step and one on the next step; and that he saw Mr. Kelley step from the end of the steps, and Mr. Price whirled and began to shoot. Mr. Kelley ran out by the side of the store, and Mr. Price was shooting the way that he had gone. He further testified that, at the time Price began shooting, Kelley was not doing anything to Price; that Price shot first; that Kelley turned or whirled, and went around the side of the store; that Price stepped off the steps, went to the corner of the store, and shot in the direction that Kelley was going; that, at the time the last shot was fired, the witness could not see Kelley on account of the store.

There was other testimony that, at the time of the shooting, the appellant had started up the steps when he was accosted by Kelley, and that Kelley approached him with a knife in his hand, drawn in striking position, stating that he wanted to see Price, and that Price fired several shots, and that during this firing Kelley turned and ran.

It appears that on the day before this shooting Price was driving a school truck, transporting children to a consolidated school in the community; that on the road near the house of the brother of the deceased the deceased approached the appellant and accosted him about permitting appellant's children and other children to impose on and run over the sisters of the deceased; that at that time Kelley invited the appellant to get out; that the appellant told Kelley he had the children in charge and this was no time to have trouble. There is some conflict in the testimony as to what happened on that occasion — some of the witnesses say that Kelley stated that he would see him later or the next day — others stating that Kelley said he did not want any trouble either.

The appellant testified that on this occasion Kelley accosted him, using vile language, and invited him to get out of the truck, but that he declined to do so, having the children, and that deceased threatened him by saying that he would see him later in town, or some statement similar to that; that, after this conversation and threat, appellant procured a pistol, apprehending further attack, and on the morning of the killing he had taken the children to Mt. Pleasant and parked his car and started into the store when Kelley accosted him, saying he wanted to see him; that, as he turned towards Kelley, he was approaching with a drawn knife; that he fired three shots, and Kelley turned and ran; and that the fourth shot was fired unintentionally, and did not strike Kelley but struck the ground.

The only serious proposition in the case is whether the court erred in refusing to quash the indictment. It has been held in a number of cases that the court will not inquire into the legality and sufficiency of the evidence before the grand jury to sustain the finding of an indictment. In Blowe v.State, 130 Miss. 112, 93 So. 577, 24 A.L.R. 1429, it was sought to quash the indictment found against the appellant in that case on the ground that the evidence upon which the bill was found was procured by means of an unlawful search, and that such evidence was incompetent. Under the Tucker case, Tucker v. State,128 Miss. 211, 90 So. 845, 24 A.L.R. 1377, it was held that evidence obtained by an unlawful search was not competent if objected to. See, also, Williams v. State, 129 Miss. 469, 92 So. 584;Butler v. State, 129 Miss. 778, 93 So. 3; Taylor v.State, 129 Miss. 815, 93 So. 355. In these cases it was held that on the trial of a case on its merits such evidence is inadmissible if objected to at the time it was offered, where it was discovered by means of an unlawful search, but the court held in the Blowe case that it could not inquire into the evidence found by the grand jury, the court saying:

"``The rule in this state is that no inquiry can be made into the evidence on which the grand jury acted in finding an indictment.'

"The question was raised in Smith v. State, 61 Miss. 754, by plea in abatement to the indictment, which plea set out that the indictment had been found by the grand jury without an examination of any sworn testimony. The court said that the authorities on the question were conflicting, but it preferred those which denied such an inquiry.

"This exact question was involved in Hammond v. State,74 Miss. 214, 21 So. 149, but not decided. The motion to quash the indictment in that case was based on the ground that the indictment had been found by the grand jury in whole or in part upon the testimony of the wife of the accused, who under the law was incompetent to testify against her husband."

In Kyzar v. State, 125 Miss. 79, 87 So. 415, it was held in the second syllabus:

"The court cannot inquire into the character of the evidence before the grand jury upon which an indictment was found, and when a grand jury has been reassembled during a term of court and has returned an indictment upon which the names of witnesses are indorsed, evidence to show that no witnesses appeared before the grand jury on the date it reconvened and returned the indictment is inadmissible."

In Baldwin v. State, 125 Miss. 561, 88 So. 162, it was again held that the evidence on which the grand jury acted on finding an indictment cannot be inquired into on the trial of the defendant on the indictment. In this opinion it is stated, quoting exactly:

"This is an appeal from a conviction for receiving stolen property on an indictment in which the property alleged to have been received is described as ``certain dry goods and articles of wearing apparel. The exact description, further than this is to the grand jurors unknown.' Each article of wearing apparel alleged to have been received by the appellant is specifically set forth in the testimony of the state's witnesses, two of them on cross-examination testified that an itemized statement thereof was given by them to the grand jury before the finding of the indictment."

The court held that, "the rule in this state is that no no inquiry can be made into the evidence on which the grand jury acted in finding an indictment."

On the other hand, it has been held in a number of cases that it is competent to show unlawful influence operated upon the grand jury and caused the return of an indictment, and that it is competent, on a motion to quash, to show such misconduct, and, if it sufficiently appears and if it was of harmful nature, that the indictment would be quashed. In a case where an attorney appeared for the prosecution, procuring himself to be summoned as a witness before the grand jury, and there urges the grand jury to find an indictment, it should be quashed. Wilson v. State, 70 Miss. 595, 13 So. 225, 35 Am. St. Rep. 664; Welch v. State,68 Miss. 341, 8 So. 673; Durr v. State, 53 Miss. 425; State v.Barnett, 98 Miss. 812, 54 So. 313.

In Le Barron v. State, 107 Miss. 663, 65 So. 648, it was held that an indictment would not be quashed because of the presence of the district attorney in the grand jury room while the matter was under investigation, and when the indictment was voted on, in the absence of a showing that accused was prejudiced thereby. It was likewise held that where the county attorney was in the grand jury room when the case was under investigation and there was a law creating that office making it his duty to assist the district attorney, that fact was not sufficient ground to consider a quashal of the indictment, unless it appeared that he did something improperly to influence the grand jury. See State v. Coulter, 104 Miss. 764, 61 So. 706, 44 L.R.A. (N.S.) 1142;Collier v. State, 104 Miss. 602, 61 So. 689, 45 L.R.A. (N.S.) 599.

In Allen v. State, 61 Miss. 627, it was held that an indictment would not be abated or quashed because one or more of the grand jury were intoxicated while it was under consideration. In the opinion in that case, delivered by Judge CHALMERS, it was held:

"It has never been held here or elsewhere, so far as we can find, that an indictment could be abated or quashed because one or more of the grand jury were intoxicated while it was under consideration by that body. The grand jury is not under the guidance and control of the court, like a petit jury is, while considering of their verdict, and should not be so judged. The plea in abatement was properly demurred to."

In State v. Bacon, 77 Miss. 366, 27 So. 563, it was held that the presence of a bailiff in the grand jury room during a part of its deliberations was not sufficient cause to quash an indictment, and that the presence of an interloper before the grand jury and statements made by him charging the guilt of a person were not sufficient cause to quash an indictment found against such person, in the absence of a showing that such acts and statements influenced the presentation. From the statement of facts set out in the report, it appears that it was set out in the motion to quash that the bailiff was improperly in the grand jury room during the deliberations; and, second, that a person who is not a member of the grand jury, not a witness in the case for any purpose, not subpoenaed before the grand jury, and had no knowledge of any of the facts and circumstances of the homicide, and not related in any manner whatever to the deceased, unlawfully and improperly intruded himself upon the grand jury while investigating and deliberating upon the homicide, and, in a malevolent and vindictive spirit, urged, in strong language the indictment of defendant, insisting that he was guilty of a diabolical murder, and that public sentiment demanded an indictment. On the motion in that case several members of the grand jury were introduced as witnesses, and testified touching the conduct of the bailiff and intruder during their deliberations. The evidence showed that the bailiff was in the grand jury room part of the time and out part of the time; that he was passing in and out; that the intruder applied for admission several times, and was finally admitted by order of the foreman, was sworn, and answered the routine of questions propounded to him; that he made some reference to, but knew nothing of his own knowledge about the case. Several witnesses testified that the intruder stated, while in the grand jury room, that Bacon ought to be indicted, but the court held that this was insufficient to consider a quasher of the indictment. In the opinion it was said:

"The intruder did not act as district attorney, did not have the witnesses summoned for the state, and did not draw the indictment. The action of the grand jury must be free from malice, prejudice or passion. But its solemn findings are not to be set aside for light or trivial causes, or anything short of a sufficient, substantial showing."

In People of New York v. Shea, 147 N.Y. 78, 41 N.E. 505, it appeared that a motion was made in that case to dismiss the indictment for murder, on the ground, among others, that certain persons, not officers of the law, had issued and distributed to each person on the grand jury list a circular letter advising them as to their duties, and on other questions prejudicial to the defendant. The motion was based upon affidavits of the defendant and his attorney, and the only fact proved was the distribution to grand jurors of a circular signed by the chairman and secretary of a committee of public safety, reminding the jurors of the importance of their duties, stating some of their powers as evidenced by citations from the statutes, offering to further advise them if they would call at the headquarters of the committee of the methods by which each grand jury could do effective work, and stating that the efforts of the committee were not for political or sectarian effect. The court of appeals held that, assuming it had jurisdiction to review the determination of the court below on this point, which it doubted, there was no ground set forth which was sufficient in law to justify the trial court in dismissing the indictment, and that the defendant had no ground of complaint based upon the denial of his motion, it appearing that there was no proof that any man on the panel was not a legally constituted juror, or even an allegation that the evidence given before the grand jury was incompetent in its nature or insufficient to warrant the indictment.

It will be noted from the statement as to the motion and the petition to the grand jury that it does not appear what activities were displayed by persons who signed the petition in procuring the prosecution, other than the mere signing of the petition. It does not appear that they were persons of influence, and that they had so stirred the public opinion into hostility as to make it reasonably appear that the grand jury would be influenced by the petition. It is stated in the motion that the petitioners were relatives and friends of the deceased. There were only twenty-four of these signers, and it probably is true that they were all living in one locality in the county. It does not appear that any of them appeared at the grand jury room, or were admitted as witnesses, or exerted any influence apart from the mere signing of the petition. It does not appear from any affirmative proof that the grand jury was influenced in any degree by this petition. The jury laws require a selection of men of good intelligence, sound judgment, and fair character, and, if the grand jury was composed of such men, and we must presume that it was, it is not likely that it would be unduly influenced or swept off of its course of rightful conduct by the mere fact that a petition, signed by twenty-four persons, friends and relatives of the deceased, requested the investigation and indictment of the defendant. The court must indulge the presumption that the grand jury is composed of men who have a reasonable degree of intelligence and would perform their duties in accordance with the law and the evidence before them.

It does appears that there was other evidence before the grand jury. It would be adopting too rigid a rule to apply to the grand jury the strict rules applied to a trial jury in the trial on the merits. The grand jury is an independent body, and its members are not usually versed in legal rules of procedure and evidence. It is probably true that in each county in the state the grand jurors are approached and talked to by the citizens with a view of having certain conditions investigated and proper indictments returned. The members are not restrained during their investigation, but go at will amongst other people during their work. While it is important that it be free from improper influence, yet it is conducted on the plane of common everyday experience and common sense, and, if an indictment could be quashed merely because some person got up a petition, or wrote a letter, which got into the grand jury room, or who had merely talked to members of the grand jury in reference to cases to be investigated, it would result in practically nullifying all the indictments found by the grand jury. Courts may be presumed to know what is matter of general information, and it is a matter of common knowledge that in many of the investigations of the grand jury there are partisans on both sides present — some seeking to have the prosecution instituted, and others seeking to prevent that action being taken. If an indictment, after being found, can be quashed on the facts now before us, it would be an easy matter for designing persons, having interest in the defeat of the law, without any actual consent or connivance of the defendant, to procure petitions, letters, and other improper matters to get into the grand jury room; while at the same time others interested in defeating justice would be active in using whatever influence could be brought to bear to prevent an indictment, and, if one was presented, then the defendant could be informed of what had been done and make motion to quash, and thus delay and defeat the purposes for which the grand jury was instituted. It is to be recognized that a person is not to be presented by coercion of a grand jury or by undue influence and misconduct, but before an indictment is quashed it should clearly appear that the grand jury did not perform its duties fairly and impartially, and with due regard for the public welfare, but that they were subjected to such influence and improper conduct as makes it clearly appear that the indictment was coerced or improperly procured. Every man with common sense must know that, when a homicide is committed, the family and relatives of the deceased are desirous, as a rule, of procuring an indictment and having the matter tried in a public trial in the courts; while at the same time the family and relatives and friends of the defendant take a contrary view and that no indictment should be had.

There is a marked difference between the rigid rules applying to the trial of cases on the merits before a jury and the practice and rules applying in the work of the grand jury, and we should do nothing that would render the fair and honest work of the grand jury nugatory. Before we quash an indictment upon circumstances similar to the ones before us, it must appear affirmatively that improper influences operated, and that they were effective in procuring the indictment. It is not an uncommon thing for an indictment to be defeated by friends of the defendant, and sometimes a subsequent indictment is found when such influences are removed or overcome by counter influence. The action of one grand jury does not exclude another from action on the matter if the offense is not barred by the Statute of Limitations. We think the showing here made fails of the requirements of law in showing that the indictment was unlawfully procured, and that the motion to quash was properly overruled on the showing made in the record.

The other assignments of error have been considered, and are considered to be without merit; the principles underlying all of them having been practically settled by previous decisions of the court. We will say, however, that no distinction appears to us to be found between the contention here that on an indictment for manslaughter evidence that would make a case of murder should not be admitted, and the cases in which it has been decided that a conviction of manslaughter on an indictment for murder, where the evidence makes a case of murder, is harmless error as to the defendant, being beneficial rather than detrimental to him. In the case before us the indictment was for manslaughter. The state, by its proper authorities had elected to charge the crime committed, on the facts produced, to be manslaughter instead of murder. That election, of course, is binding upon the state, and no subsequent indictment involving the same facts for murder could be found. On a manslaughter indictment the question is whether the killing was unlawful or lawful. Anything that tends to show that it was unlawful, when competent and relevant, is admissible in evidence in such case, and the fact that the evidence, or some of it, might make out a case of murder or tend to do so, does not prevent it being received on a charge of manslaughter when the state has elected to presecute for manslaughter only. The judgment of the court below will therefore be affirmed.

Affirmed.

COOK and McGOWEN, JJ., concur.

SMITH, C.J., and ANDERSON, J., dissent.