Richardson v. State

^* Corpus Juris-Cyc References: Criminal Law, 16CJ, section 316, p. 210, n. 35; section 2190, p. 870, n. 65; 17CJ, section 3597, p. 270, n. 10; section 3679, p. 333, n. 95; Homicide 30CJ, section 570, p. 322, n. 65; section 659, p. 414, n. 79. Silas Richardson, the appellant, was tried and convicted by a jury at the regular September, 1928, term of the circuit court of Hancock county for the crime of murder, and sentenced by the court to suffer the death penalty, and appeals to this court.

The appellant was convicted in the court below of the murder of John Damberino. The shooting affray occurred in the city jail at Bay St. Louis in said county, and the essential facts are as follows: Mark Oliver, the chief of police of that city, on the morning of August 14, 1928, arrested the appellant without a warrant on a charge of stealing an automobile of greater value than twenty-five dollars; after being arrested he was lodged in the city jail a little more than two hours; later Oliver, accompanied by Damberino, the deceased, went to the jail for the purpose of procuring from the appellant the key to the automobile charged to have been stolen. From the entrance to the jail there was a door opening into the corridor, or "bull pen;" to the left of the corridor from the front door there were three cells, each of which had a door opening from the corridor into the cell proper. The appellant was in the corridor or "bull pen." Oliver testified that he left the deceased, Damberino, at the door which permitted entrance into the corridor and went into the corridor for the purpose of getting the key to the automobile, telling the appellant that he wanted the key. Thereupon the appellant tendered to the chief of police a penknife and some money, telling him that was all he had. The officer advanced toward him for the purpose of searching for the key, whereupon the appellant retreated to the rear cell. The chief of police followed him into the cell, where the shooting occurred. The officer had upon his arm, attached thereto, what is commonly called a "billy," and upon his entering the cell he undertook to catch hold of the appellant, when the appellant presented a forty-five Colt pistol directly at him. According to the officer the pistol in the hands of the appellant was discharged directly at him in the narrow compass of the cell three times. The first shot was discharged in the front of the officer's cap, which he had on his head; the second shot, we gather from the record, was a graze, and the bullet struck the back of the officer's head or neck and knocked him to the floor; while the officer was in a prostrate position the appellant discharged his pistol directly at him, and the third bullet took effect in the shoulder of the officer. The officer testified that he did not strike or attempt to strike the appellant with his "billy," and that he did not discharge his pistol while in the cell. The officer said that after the appellant left the cell door and was on the outside of the cell he discharged his pistol the fourth time, and that this fourth shot discharged by the appellant killed Damberino. The officer immediately got upon his feet, rushed out of the cell in pursuit of the appellant, and when he got out of the cell door he saw the body of Damberino lying prostrate on the floor with his head on his arm, and that while standing at the feet of the deceased he, the officer, discharged his pistol for the first time directly at the fleeing appellant as he was making his escape from the "bull pen" door.

The officer further testified that as he started from the place where he fired the shot he kicked the body of Damberino with his foot and concluded that he was dead. There was a diagram of the cell drawn by the officer which accounted for each pistol shot fired while in the cell, and demonstrated that it was impossible for any of the bullets discharged by the appellant, while shooting within the confines of the cell, to have found lodgment in the body of Damberino. He testified positively that Richardson fired four shots, three within the cell and one in the corridor after he had left the cell, or outside of the cell. The officer said he did not see the shot fired outside, but heard it. Damberino's body was lying outside of the cell.

Lionel Vickery, a witness for the state, fifteen years old, testified that he was at the city jail when Damberino was killed. He had been there about five minutes talking to the appellant through the bars, the appellant being outside of the cage, the witness being in the hall. He testified that Damberino came there with the officer; that he did not hear Damberino say anything; that the officer Oliver, went into the cell, and after that he saw Damberino standing in the door leading into the cells, that is, the door from the city hall that goes into the hallway; that he heard three shots fired inside the cell and two shots on the outside of the cell, and he was positive as to the number fired outside the cell. He saw Damberino falling, did not actually see the shot fired, but saw Richardson lowering his smoking gun, which was pointed toward Damberino, and Damberino was going toward the cell where the shooting was going on. He saw the appellant step over Damberino's body after it fell and run out. He then saw Oliver fire at Silas Richardson as he was running out of the door which leads into the building, and at the time Oliver discharged his pistol Damberino was lying in front of Oliver on the floor. This witness further said that he "saw Oliver pull out his ``billy' as he was kinder in the cell door;" that he said to another boy who was with him, "Watch Oliver hit him with his ``billy.'" He did not see Oliver strike at appellant.

John Demoren was a boy sixteen years old standing with the Vickery boy and heard the conversation as to the officer searching the appellant and saw the appellant run back into the cell. He ran and laid down on the floor, was not positive as to the number of shots fired, and saw Richardson as he was going out of the door, and heard Oliver shoot.

It was further shown that the sheriff organized a posse of three hundred men, and it was some weeks later when the appellant was arrested. The state rested its case; the jury was retired, and the appellant made a motion to exclude the testimony, when the court called attention to the fact that he did not understand that the evidence showed up to that time that Damberino had been shot and that the shot killed him. After some colloquy, the appellant and his counsel insisting on his motion, the court declined to entertain his motion, and permitted the state to reopen the case, and called the witness, who testified that he went immediately to where the deceased was lying and found a bullet wound above his eyebrow with his brains oozing therefrom and a large pool of blood, and as he made the examination the dedeased breathed his last and died in the presence of the witness, and that the wound caused his death.

The appellant strenuously objected to the recalling of the witness Traub and based his objection upon the ground that the state had rested its case, and he had made his motion to exclude. The colloquy between the court and counsel took place out of hearing of the jury.

The appellant's testimony was to the effect that when he saw the officers were going to search him he produced a pocketknife and money and told them that was all he had, but at the time he, the appellant, had concealed on his person a pistol; that he ran from the officer back into the cell in order to hide his pistol. He testified that as he went into the cell the officer came at him with a blackjack, which he ducked, and then, to use his own language, said: "After I ran from him, I tried to pull the gun out to try to hide it, and him tussling with me, and I was still trying to hide the gun under the bunk, and it was a double action gun and went off to shooting, and I ran out not knowing anybody was shot." He said further that all the shots he fired were in the cell; that Damberino was lying on the floor when he went out, and he ran away. He finally testified that the officer struck at him only once, and that because there was a bunk between them the officer could not catch hold of him, and that when he was trying to get the gun out it went off, and that as he pulled it up it was shooting. He had the gun in his bosom. All the time he insisted that when he pulled the gun out it went to shooting. The appellant further said that he did not know how many shots were discharged from the pistol and did not know how many empty and loaded shells remained in the gun. He said that the officer was in the position of getting his gun when appellant's gun commenced to shoot. He said his gun was pointing straight at the officer, and that he, appellant, was frightened, and he was not shooting to kill anybody. His entire evidence was to the effect that the shooting of the pistol was accidental, and that he was not discharging the pistol in an effort to shoot anybody, but it went off as he pulled it out of his bosom.

Relative to the several motions it will be necessary for us to quote certain other bits of testimony with reference thereto. First, it is insisted that the court below erred in refusing to grant the appellant a change of venue on the two motions made by him. He first made a motion with the necessary affidavit accompanying for a change of venue before the trial began. On this motion the state offered six witnesses, who testified that they thought the case could be tried fairly and impartially in that county after it had been given some newspaper notoriety, and on cross-examination they said that the case had not been prejudged by the people of that county. The appellant called several witnesses who agreed with the state. Critically examined, the testimony of these witnesses showed that the case had not been prejudged by the people of the county.

After the jury was impaneled, the motion was renewed upon the ground that the examination of the jury on their voir dire, together with the other testimony, showed that the appellant could not have a fair trial in Hancock county. On the first motion for a change of venue the witnesses were all agreed that a fair and impartial jury could be had in the county, and a great many of them said that the case had not been prejudged. There was no conflict in the testimony, and this court has held that where there is a conflict, and the testimony reasonably tends to show that the case has not been prejudged this court will not disturb the verdict. Regan v. State, 87 Miss. 422, 39 So. 1002;Long v. State, 133 Miss. 33, 96 So. 740; Mackie v. State,138 Miss. 740, 103 So. 379; Wallace v. State, 143 Miss. 438,108 So. 810; Cummins v. State, 144 Miss. 634, 110 So. 206.

On the second motion it is shown that the court examined forty men, a special venire, and from that number the jury was impaneled. The voir dire examination of the twelve men who actually sat as the jury disclosed that they were fair and impartial; of the other twenty-eight men the court excused nine because they had formed an express opinion; he excused three because they testified that they were related by blood or marriage to the deceased, and one because he said he could not give a negro a fair trial when he was charged with murder in the killing of a white man. The state exercised five peremptory challenges, and the appellant exercised ten. We do not think this analysis of the examination of the entire venire, where the appellant has not exhausted even his peremptory challenges, tends to disclose a prejudgment of the case so that the appellant did not have a fair and impartial trial. The jury was fair and impartial, because the appellant accepted it without objection and without exhausting his peremptory challenges, so that we do not think there was error in overruling the motion for a change of venue.

Second, we content ourselves with saying that we do not see anything improper in the conduct of the trial court in permitting the case to be reopened for the purpose of showing that the deceased came to his death as a result of a bullet wound. State v. Martin, 102 Miss. 165, 59 So. 7; Baird v. State,146 Miss. 547, 112 So. 705; Morris v. State, 148 Miss. 680,114 So. 750.

Third, the appellant was not entitled to a peremptory instruction in this case, for if the evidence of the state believed by the jury, a case of murder was made out. Their main objection seems to be that Oliver is uncorroborated, and that the appellant contradicts some of the other testimony.

Fourth, it is contended that the court erred in permitting the case to go to the jury on the sole theory of murder or nothing, and assignment of error is based on the instruction on the form of the verdict, and the pertinent part is in this language: "The court instructs the jury on behalf of the state that if they find the defendant guilty of murder they may return into open court either of the following verdicts, to-wit." The crime of manslaughter was not defined or mentioned, but the balance of the instruction referred to the punishment for the crime of murder in the usual form. The language quoted did not deprive the jury of a right, if they saw fit to do so, to convict the appellant of manslaughter, and this instruction was approved by this court in the cases of Tatum v. State, 142 Miss. 110, 107 So. 418, andGrady v. State, 144 Miss. 778, 110 So. 225.

Fifth, it is insisted that the court should have granted three refused instructions, Nos. 3, 10 and 11, which are as follows:

"The court instructs the jury for the defendant that if you believe from the evidence that the defendant, Silas Richardson, unnecessarily killed the deceased, John Damberino, while resisting an attempt by Mark Oliver, the officer, to commit a felony, or to do any unlawful act, or after such attempt on Oliver's part had failed, you can only find him guilty of manslaughter."

And: "The court instructs the jury for the defendant that if you believe from the evidence that the defendant, Silas Richardson, unnecessarily killed the deceased, John Damberino, while resisting an attempt on the part of the officer, Mark Oliver, to strike him with his policeman's club or ``billy,' or to do any unlawful act, or after such attempt had failed, you cannot find him guilty of murder but such an offense would be manslaughter."

And instruction No. 3: "The court instructs the jury that if you believe from the evidence that the defendant unnecessarily killed the deceased while resisting an attempt on the part of Mark Oliver and deceased to unlawfully search defendant then you are to find the defendant guilty of only manslaughter."

In this connection it is proper to state that the court excluded evidence of the officer, Mark Oliver, on cross-examination, which showed that he arrested the appellant without a warrant and placed him in jail and allowed him to remain there for two hours and was proceeding to search him without ever having preferred a charge against him before a proper officer, and that he had arrested him and placed him in jail at the instance of the owner of the automobile alleged to have been stolen. In other words, the evidence tended to show that the arrest was unlawful and the search of the appellant in consequence of said unlawful arrest was itself unlawful. Counsel says that if the appellant killed the deceased unnecessarily while resisting an unlawful search the deceased would only be guilty of manslaughter. Hemingway's Code of 1927, section 1265 (Code of 1906, section 1447) defines what arrests may be made by an officer without a warrant. An officer may arrest any person without warrant for an indictable offense committed, or breach of the peace threatened in his presence, or when a person has committed a felony, though not in his presence, or when he has reasonable ground to suspect and believe the person proposed to be arrested did commit it, or upon a charge, made upon reasonable cause, of the commission of a felony by the party proposed to be arrested. The evidence is very unsatisfactory as to what grounds the officer had to suspect that the appellant had stolen the automobile.

Section 1016 of Hemingway's Code of 1927 (section 1237, Code of 1906) is as follows: "Every person who shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any unlawful act, or after such attempt shall have failed, shall be guilty of manslaughter."

We construe the above-quoted instructions as being based upon the above statute, and if we concede that the arrest was unlawful and that the search was unlawful, still we are of the opinion that the court did not commit error in refusing these instructions. A close scrutiny of the appellant's testimony reveals the clear fact that he based his entire defense to this case upon a statement that the pistol was double action and automatic and was discharged without his design — in other words, that the shooting on the part of the appellant was purely accidental and unintentional. In other words, this homicide on the theory of the state was murder if the appellant, after having shot down the officer and while in the act of escape from the cell finding Damberino confronting him, shot him down at a time when Damberino was unarmed and not shown to have done anything to him or taken any part in the search or made any effort to aid or abet in the search. If the jury adopted that theory it was murder, and the only answer of appellant made to it while on the witness stand, and the only other deduction fairly to be deduced from the testimony, was that the defendant while scared and frightened undertook to hide a pistol which he had on his person and which was accidentally discharged, and in some unaccountable way Damberino, not in the cell, not engaged in the fight, and not engaged in the affray, was shot down accidentally. The appellant says that when he emerged from the cell he found Damberino lying prostrate upon the floor, and that he did not shoot at all after he emerged from the cell. At no time in his statement of how the homicide occurred does he raise his defense upon the fact, if such were the fact, that he was resisting an unlawful search of his person. We are assuming in this case that the search was unlawful. We are further assuming that Damberino was shot as he was walking toward the cell where the shooting was in progress as a result of the unlawful search; still we must be bound by what he says upon the witness stand. He had submitted without objection to the unlawful arrest. On his evidence he was not resisting the search, but only ran and was undertaking to hide a pistol which had nothing to do with his unlawful arrest or the unlawful search. There is authority to the effect that one who interposes a defense against the crime of murder that it is manslaughter because he shot in resisting an unlawful arrest must know at the time and be conscious of the fact that he is resisting an unlawful arrest. As to this we do not express an opinion. The witness makes no mention of any desire on his part to resist the search with force, but bases his entire defense upon the theory of accident.

In the case of McPhay v. State, 87 Miss. 456, 40 So. 17, on appeal from a life sentence where the conviction was upon these facts, "the testimony introduced by the state was to the effect that the deceased, McMorris, a policeman of the town of Summit, while riding on a bicycle at night in the streets of the town, and unaware of the presence of appellant, was waylaid and shot in the back by appellant. The fatal shot entered deceased's back just under the shoulder blade. The testimony for appellant tended to show that defendant did not see deceased until he jumped from his bicycle and drew a pistol on defendant, who fired to protect himself; that defendant did not know at the time he fired who deceased was, but thought he was one Saulsbury, an enemy, who had previously made threats against defendant."

Judge TRULY, as the organ of the court, said on this proposition: "The principle of law upon which the argument in support of that position is grounded is that the homicide was committed in resisting an unlawful arrest, and hence was manslaughter only. . . . According to the story of appellant, the homicide was committed, not in resisting unlawful arrest, but in his own absolutely necessary self-defense. . . . Appellant, by his own testimony, did not attempt to justify his conduct by the plea that he was resisting an unlawful attempt to arrest him."

In other words, our court held that the defendant might not raise this foreign issue of resisting an unlawful arrest and secure instructions on a theory not authorized by his testimony and not even asserted by the defendant as a reason for his action in the given case. The defendant in his version squarely planted himself upon the claim that the discharge of the pistol was accidental, or perhaps set up a claim of self-defense, which the court by its instructions submitted to the jury. There is no hint of resisting arrest in his evidence.

Of course the court should not have excluded Oliver's evidence as to the circumstances of the arrest tending to show an arrest without warrant was not on probable cause or reasonable ground to suspect that appellant had committed a felony, but appellant's evidence repudiates any theory of resisting arrest in this case, and hence the error reviewing the entire cause was harmless.

On the whole record we cannot see that the appellant has not had a fair and impartial trial.

The judgment of the court below is affirmed, and Friday, April 26, 1929, is fixed as the date of execution.

Affirmed.