Appendix — Shinall v. Mississippi

APPENDIX A

_ Opinion of the Supreme Court of Mississippi

ss IN THE 3

SUPREME COURT OF MISSISSIPPI

No. 44,352

, : -

“Vv

- CLoupms Suman, —

against

State oF Mississrppt,

. —

ae

Ropeers, Justice: “

_ This is the second time this-case has been appealed to

this: Court. On the former appeal (Shinall v. State, 187

‘So. 2d 840, 1966), we. reversed and remanded the case

because of an apparent racial discrimination in the selec-

tion of the grand and petit juries. When the mandate of

this Court reached the Cireuit-Court of Forrest County,

Mississippi, the appellant was reindicted by another grand

jury. He was again tried and convicted of murder, and

sentenced to suffer death. Appellant has again appealed

to this Court and contends that the trial court committed

prejudicial error and that a new trial should be granted

to him. ;

. The defendant, Cloudies Shinall, appellarit here, shot ~

and killed Frederick L. Humphrey, a Constable of Justice

of the Peace District No. 3 of Forrest County, Mississippi.

The constable was not in his district at the time of the

—

| Appendia A

shooting. The defendant is a Negro, and the constable

was Caucasian. .

The record reveals that on the day of the homicide, the

defendant borrowed an automobile from a. friend, L. C.

Leggett, for the purpose of going to get his pay check.

He took two friends with him;~and when they returned

to the defendant’s neighborhood, Palmer’s Crossing, they

visited several taverns where they consumed a large.quan- -

tity of beer. During the afternoon, someone in the auto-

mobile with the defendant discovered a twenty-two caliber

’ pistol, holster and belt under the front seat of the ‘auto-

mobile. The defendant took the pistol and buckled it

upon his person. He exhibited the pistol in one of the

beer taverns, ané@ when officers came by the tavern, he _

_ gave the pistol, holster and belt to the proprietress. When

the officers left, she réturned them to the defendant. The

defendant and his companions continued to move from

one beer tavern to another, until a short time after dark.

They got into Leggett’s automobile again in front of the

‘*Heat Wave’’, and started to drive away, but the motor

ceased to function at a place where there was a ditch in

the road. Thus, the defendant was in the process of

navigating the rough place in the road. The constable

pointed the light beam of his flashlight toward the auto-

mobile; whereupon, the deferfdant drove away at such a

rapid rate of speed his companions became alarmed. They

beseeched defendant to slow his speed or stop because

they were afraid he would wreck the car and cause their

deaths. ;

In the meantime, Constable Humphrey had gotten into

an automobile belonging to another constable and had

begun to follow the automobile driven by the defendant.

The defendant drove at a rapid rate of speed across a

blacktop road and made several turns until’he came into

a curve in the’road in front’of the Welborn home. The

- defendant was going at such a fast rate of speed he

‘es

peated, adenine a aerares

| 8a

| Appendix A ss “

could not traverse the curve and the automobile went

out of control into the driveway of the Welborn home, —

where it struck a wire fence. The constable came up

behind the automobile, stopped his car, got out, left the

lights burning, and approached ‘the automobile driven by

_ defendant. . Two witnesses said the officer had a flashlight

in his hand. One witness said he also had a pistol in his

hand. The constable directed the passengers to get out

of the automobile, and when they alighted, the officer

looked into the front seat where defendant was. At this

time a gun fired. One witness saw the flash of the gun,

and another witness testified that the defendant shot the

officer. The two passengers ran away, and when they —

had gone some distance, they heard two more pistol shots.

_, Later that night, the defendant told: one of his com-

panions that after they fled, he walked up to Humphrey

and shot the ‘‘son-of-a-bitch in the head.’’ -He later told

L. C. Leggett, owner of the automobile, that he had killed -

“‘the son-of-a-bitch’’, naming: Humphrey, with Leggett’s |

pistol. The pistol was:later récovered from Leggett. -It

-was°mailed to the Federal Bureau of Investigation; to-

gether with a bullet found in the hody of deceased by the

coroner, and upon examination by them it was discovered

that the bullet from the body of’the deceased matched ‘the

other bullets fired from the pistol of L. C. Leggett, so that

-an expert witness was able to testify that the bullet found

in the body of the constable was fired from the pistol

. belonging to L. (. Leggett. :

I

After the second indictment was presented by the’

grand jury, the defendant moved to quash the indictment

upon the ground that there was a systématic discrimina-

tory selection of the members of the grand jury.. The

attorneys for the State and defendant entered a stipula-

da ,

Appendix A

tion and offered testimony on this subject. It appears that

since the former trial of this case, the Clerk of Forrest

County has performed his @uty as ordered by the Federal

Court in that he has registered all colored persons who

desired to vote. ,The record reveals that the Board of

Supervisors has selected names for jury service without

regard to race since the former trial of this case. The

testimony reveals that since November 1965 nine Negroes

have served on three grand juries. in Forrest County; that

Negroes have served pon petit juries in criminal cases;

that a special venire of seventy-nine names summoned on

the trial in the instant case contained fourteen Negroes.

The trial judge overruled the motion to quash the indict- .

ment, and later overruled a motion to quash the petit jury.

He took judicial notice that Negroes were not discrimi-

nated against in the selection of jurors. |

_ On appeal to this Court, appellant complains that: (1) -

women were not required to serve on juries in Mississippi ; :

(2) Negroes were systematically excluded from jury selec-

tion because, (a) they were being selected as they had been

for many years, (b) that the Members of the Board of

Supervisors did not select persons of. “good - intelligenee,

sound judgment, and fair character’’ as required “by Mis- ~

sissippi Code Annotated section 1766 (1956) since they. .

' had selected persons they did not know; and (c) the State

‘of Mississippi peremptorily challenged qualified colored

persons left on the jury after the voir dire.

We are-of the opinion that these contentions are not

well-taken for the following reasons: (1) Women are not

required to perform jury duty in Mississippi nor does the

Federal Constitution require women to serve on juries in

. state courts. Mississippi Code Ann. 41762 (1956) ; State

v. Hall, 187 So. 2d 861 (Miss. 1966) ; Pendergraft v. State,

191 So. 2d 830 (Miss. 1966). (2) The evidence in this .

case shows that the Supervisors of Forrest County are

5a

Appendia A

| nots. electing juries from the list of qualified voters of

that county without regard to race or ethnic groups, ard

that the constitutional impediment of discriminatory jury

selection for which this case was previously reversed has

been removed. All qualified persons desiring to. vote are

now béing registered by the Circuit Clerk of Forrest

County, and from ‘this list juries are now being drawn.

(a) The argument that the juries are still being selected

’ as they have been for many years is not -well-taken, because

the list from which the juries are now selected is a new ~

list of qualified voters, including Negro citizens who have

5 registered to vote. (b) We-are of the opinion “that Mis-

sissippi Code Annotated section 1766 (1956) in which the

Board of Supervisors is directed to select ‘‘qualified.

persons of good intelligence, sound judgment, and fair

character’’ is‘not a jurisdictional requirement, and although

it is the duty of the Members of the Boards of Supervisors. _

to-select. good citizens for jury service (Black v. State, 187

So. 2d 815, Miss. 1966), nevertheless, the jury laws of this

' State are directory and the selection of the jury list in

an informal or irregular manner does not render it il-

"Tegal. Miss. Code Ann. 41798 (1952). The contention of

' appellant that the State of Mississippi, in the instant case,

discriminated against Negroes by peremptorily challenging

five Negroes, is not supported by the facts or by the law. :

‘The voir dire examination shows that most of the persons

challenged by the State had been associated with the de-

fendant. Moreover, the State is not required to accept

jurors simply because they belong to the same ethnic group _

as the defendant. Swain v. Alabama, 380 U. S. 202, 85 Sup.

Ct., 324 (1965) ; Brown v. Allen, 344 U.S. 443, 222 F. or

10 (4th Cir. 1952).

ba

Appendia A ;

OH

The appellant contéHds that the attempted arrest of.

the appellant by Constable Humphrey was illegal because

he was not a duly elected constable in District 3 and that

when he began pursuit of defendant, no crime had been

committed by him for which arrest should have been made. ©

It is argued that deceased had a bad reputation for being

_a turbulent-and violent person who arrested persons with-

out probable cause, and for that reason the appellant had

a right to resist an unlawful arrest and defend himself

to the extent of taking the life of the deceased Constable

Humphrey. wa | oy

There is a list of cases heretofore decided by this Court

in which we have held that a person may resist an unlaw-

ful arrest by such force as may be necessary, short of

taking human. life. Note 1. Weare of the. opinion that

this line of authority is not applicable i in the instant case

because, under the facts here presented, the constable was.

attempting to make a legal arrest. Peace Officers and

citizens may at any time arrest persons who are commit- “

ting crimes in their presence, or to prevent a breach of |

the peace. Miss. Code Ann. § 2469 (1956). Moreover, the

statutory law of this State expressly enjoins all con-

‘stables ‘‘to keep and preserve the peace within his county”’.

Miss. Code Ann. § 3887 (1956). fees

The defendant contends on appeal that at the time

the constable began following him, he had committed no

crime for which he could be lawfully arrested. Appellant —

cites the case of Smith v. State, 240 Miss. 738, 128.So0. 2d

857 (1961) to support ‘contention. We are of the

opinion that the Smith ease is not authority here because

-the officer in that case had begun the pursuit of the de- -

fendant before the defendant had violated the traffic laws

of the State. Whereas, in the instant case thé constable _

did not begin pursuit of the defendant until after the

. 7 7a

ne Append: A

_ defendant had ‘thins away at such a fast rate of speed

'- his companions ‘became alarmed for their safety. It is

pointed out by Blashfield in his Cyclopedia of Automobile

Law and Practice, Volume 8 (Perm. Ed.) section 5372,

page 117, (1950), that reckless driving was a breach-of—— ar

A

the peace under the common law. Moreover, reckless

driving is a misdemeanor under the statutory law of -

Mississippi.’ Miss, Code Ann.°§ 8175 (1956). See Barnes

v..State, 249 Miss. 482, ,162 So. 2d 865 (1964). We are of.

the opinion that the attempted arrest of the defendant,

under the facts shown here, was not an illegal attempt

to arrest him.

On the second trial, the defendant did nit testify, but

- sought to introduce certain witnesses to prove that

the deceased constable had a bad reputation in the com-

“munity for violence; ‘that he had arrested some persons

without probable cause. and had pistol-whipped two of.

_ the proffered witnesses. .The defendant’ also sought: to

show that Wilmer Kitchens, the regular: Constable of

Justice of the Peace District No.*3, worked with the. _- =

deceased Humphrey and that as a team these two constables .

had a bad reputation for harassing colored citizens in and

around beer taverns at Palmer’s Crossing. The defendant

offered to show that the ‘deceased had drunk from. a half-

_ pint bottle of gin a short time before he was killed. The de-

fendant also contends that. he was not permitted to show

that someone had threatened his life, ond that bullets had.

‘ been sent to defendant.

It will be observed that this etheniiin falls into seven

distinct categories: (1) general reputation of deceased for

violence ; (2) reputation for unlawful arrests; (3) bad repu-

tation of. Constable Kitchens ; (4) particulat ineidents of vio-

lence to others ; (5) unlawfal assault upon women by third ’ ©

, Sa © .

| Appendix A

persons; (6) unidaimedl threats ; and (7) ‘deceased had

‘drunk gin a short time before his death.

A minute examination of the proffered testimony has

—“‘tonvineed us that tle trial judge was correct in excluding

this: evidence; and for that reason we discuss each cate-

gory of evidence separately (1 and 2).- The testimony

‘of: certain. witnesses as to the character of the deceased .

. constable was properly excluded because ‘this evidence

~*. was not admissible under. the facts in this case. Ordinarily

the character or reputation of the deceased person is not

involved as part of the issue in a ‘murder case, and proof

relative thereto is generally inadmissible.. It. has often

.. been pointed out | that the violent, revengeful or plood- *

- thirsty character of deceased cannot be shown as‘an excusé

. for’ ra Homicide because the uiprovoked killing of a bad

~*~ “man is no less murder than the dalling of the. most peaceful

‘and law-abiding person in the¢ommunity. Spivey v. State,

+B Miss. 858 (1881) ; Chase v. State, 46 Miss. 683 (1872) ;

. Jolly v. ‘Bate, 13°S. & M. 223 (Miss. 1849); Dowling v._

State, 5 8.:&\M. 664 (Miss. 1848); 40 C. J.S. ‘Homicide

| 222° y (1944), :

_ There are exceptions to this general. sites: The violent:

dangerous and, turbulent character of a’deceased may be

..> shown; (A) When, from the circumstances of ‘the case, it is:

a part of the res gestae; (King v. State, 65 Miss. 576, 562,.

5 So. 97—1888) ; (B) ‘where the evidence of the homicide

is wholly. ‘Circumstantial (Chase v. State, supra) ; (C) where

_ itis doubtful as to who the aggressor was at the time of the

__ homicide. (Jolly v. State, supra; Cotton y. State; 31 Miss.”

“604 (1856) ; 30r {(D) where the immediate circumstances of

: ‘the killing render“it. doubtful as to whether or not the‘act .

‘was justifiable. Wesley v. State, 37 Miss. il 346 (1808) ;

Chase v. State, supra.

Before testimony of bad ene’ of a deseiiaed is :

ents: acta! one ».of the “gpm to the ssa rule,

9a

Appendix A

the pitians must show that the issue of eelf-deteans must

at least be in doubt: Spivey v. State, supra; Moriarty v.

State, 62 “Miss. 654, 661 (1885); Smith v. State, 75 Miss.

542, 23 Sos 260 (1898); Andersén v. State, 181 Miss. 300,

179 So. 560 (1938); Wesley v. State, supra. It is said in’

Wigmore on Evidence Volume 2 (3d Ed.) section a 206, pages ©

44, 49-52- (1940) that:

‘‘ Another and more. specific form of limitation is

the doctrine of ‘overt act’, peculiarly developed in

Louisiana and Florida.~ The notion here is that the

deceased’s ‘reputation can have a ‘bona fide’ bear- °

' ing on the defendant’s apprehension only where

there occurs, at the time of thé affray, some con-

duct of the deceased which might be otherwise color-

less, but when interpreted by his known character

- becomes apparently an act. of aggression. Thus -

- there must be some ‘overt act’, i.e. of possible ag-

gression ‘before the ‘reputation-evidence can be re-. . |

ceived. This is a wise and fair limitation, provided -

_ it be not further refined by details which generate

into quibbles,—a proviso not always observed.

“Two peculiar questions may arise under the

overt-act form of the doctrine (yy Shall the ques-

tion whether an overt act is sufficiently evidenced

to lay the foundation. for the reputation-evidence be

left entirely i in the hands of the trial Court? Unless

our law is to become a mass of quibbles which no

‘practitioner cam master and every murderer will

welcome, the answer must be in the affirmative. (2)

May the defendant’s mere unsworn assertion of an

“2 — overt act (where permitted instead of his sworn

testimony) be considered as in itself some evidence

of an overt act? It certainly should be; but whether

itis sufficient evidence for the trial court shonld

never be considered on appeal.”’

10a

Appendix ‘A

The only. evidence in the record indicative of an overt

get toward the defendant by the constable was the testi-

mony of Lewis Willie Smith. He testified that the con-

- stable came toward the automobile driven by the defend-’

ant, after it had gone out of control and into a ditch, with

a flashlight and a gun in his hand. As against this

testimony, Smith testified that the constable did not threaten

the defendant, and James Anderson, the other passenger

in defendant’s automobile, testified thht he did not see a

gun in the hand of the constable, and that the constable

did not threaten either of the parties at the time of the

_ attempted arrest... The malice of the defendant was clearly

shown by the statements he made after the homicide, that

he had walked up to the constable after he fell and shot

_ the son-of-a-bitch’’ again in the head. Moreover, the

defendant knew that the person asking him to disembark

- was an officer and that it was his duty to submit to the

‘arrest. Pickett v. State, 139 Miss. 529, 104 So. 358 (1925) ;

“Malis v. State, 27 S. E. 2d 91 (Ga. 1943). Defendant had —

no right to kill the officer merely because he was afraid

_ of him, or was afraid he would arrest him ‘‘for noth-

ing.”’ eee Bate Cea, .

(3) The testimony that Constable Kitchens had a bad

reputation for violence was not admissible as evidence

in the murder case where Constable Humphrey was killed, ,

since Kitchens was not present at the time of the homicide.

40 C. J. S. Homicide § 223 at 1143, § 274 at 1229 (1944).

(4 and 5). Testimony of antecedent specific déts of vio- -

lence alleged to have been committed by deceased was not

admissible|to show bad character. Newsome v. State, 197

Miss. 797, \20 So. 2d 708 (1945). Details of a previous

difficulty batween the deceased and a third person prior to

the homicide is inadmissible to show bad character of the -

deceased. 40 C. J..S. Homicide § 210 at 1119 (1944) ; Rich

* State, 124 Miss. 272, 86 So. 770 (1921); McCoy v. State,

lla

Appendia A.

91 Miss. 257, 44 So. 814, 815 (1907 ); The Chamberlayne

Trial Evidence § 621. at 591 (1936); Thompson v. State,

84 Miss. 758, 36 So. 389 (1904) ; Carter v. State, 167 Miss;

331, 145 So. 739 (1933).

(6) The pocilered testimony rejected by the trial judge —

and complained of here is the testimony of L. C. Leggett.

He was asked: ‘‘Now there had been a time, had there

not, when one of the men whom you know was at Lucy,

Wilborn’s place had vent some bullets by you to Cloudies

Shinall, is that right? ..:. A. He gave me some bullets that

was in the back of his car. <. And what did he say? What

was the message he sent? . Q. Did someone send bullets:

with you and say these were what he was going to get Clyde

with... ?’’ This testimony was clearly incompetent. There,

is nothing in the evidence to show a threat, and if such a |

threat had been shown with reference to bullets, it was not.

shown to have been made by the deceased Humphrey. More-

over, uncommunicated threats are inadmissible in evidence

until after it has been shown that the deceased did-some .

overt act atthe time of the homicide which would cause the_

slayer to believe that his life was in imminent danger. 26 .

Am. Jur. Homicide, §§ 363, 364 (1940) ; Newcomb v. State,

37 Miss. 383, 400.(1859) ; 40 C. J. S. Homicide, i (3) at

1009, § 207 at 1113 (1944).

(7) The enpellant complains that he was not. permitted

- to show that the deceased had drunk intoxicating liquor a

short time before the homicide for the purpose of showing

the state of mind of the deceased at the time of the killing.

There are times when it is proper to permit introduction

of testimony to show the intoxicated condition of the de- .

ceased for the purpose of showing whether or not there

was any present and pressing necessity for the defendant

to take the life of the deceased to protect his own, or to _

prevent great bodily,harm. Byrd v. State, 154 Miss. 742,

me Ogi ne oe ee a

Appendia A

123 So: 867 (1929) ; Jones v. State; 227 Miss. 518, 86 So. 2d

848 (1956). On the other hand, evidence of the-intoxication

of the deceased is irrelevant where the testimony shows that

‘the defendant was the aggressor, or there is no testimony

| evincing the neeessity for the accused to kill the deceased.

40 C. J. S. Homicide, § 224 at 1144 (1944).

At the time defendant offered testimony to show that

the deceased had imbibed intoxicating liquor, there was no

evidence indicating a necessity on the part of defendant to

kill the constable, and testimony that the officer had been

: _— was inadmissible. *

IV

The appellant argues that { the totality of the proceedings

in the case violates defendant’s right to due process of law

under the Fourteenth Amendment to the Constitution of the

United States. On the contrary, there is very little excuse

_given by the defendant for killing the constable under the

facts in this case. The testimony is abundant that the de-

-fendant not only shot the constable at a time when the offi-

cer was trying to arrest him, but that after the constable

_ had fallen and was helpless, he exhibited his malice by going

up to the prone body of the officer and shooting him in the

eck of the head: We are ofthe opinion that the testimony

more than sufficient to show that the defendant was guilty

2 murder.

The appellant complains | that he was not given steetiietion i

‘Number Five, which pro ’

es that if the jury believed,

among other thirgs, that the deceased officer pointed a ‘pistol

“at the defendant, and he was in fear that bodily harm would

be inflicted upon him, or that lie would be killed, then it-

" NN mn aa yt ae at sah we

Pe

Pitre aca tse a ve “ Pee eee: Lrg Mee da didi bath rk Niiend ~~ en taser ee

t oe mee ee omy ° :

¥ ed 13a ; ' ®

: Appendix A ,

*

-was the duty of the jury to find the defendant ‘‘not guilty.’’

This instruction was properly refused because one does not.

_ have the right to kill another-merely because he is afraid :

of him; nor may one kill another because he is afraid that:

- he will receive some bodily harm. The law does not jus-

tify one’s taking the life of a person in defense of his own

‘person except where there are reasonable grounds to ap-

prehend a design to commit a felony or do some great per-

sonal injury to the accused, and there shall be imminent |

danger of such design’ being accomplished. . Miss. Code

Ann., § 2218 (1956). Moreover, there was no testimony in

the instant case that the officer pointed his gun at the ac-_ .

cused. Fae :

Defendant’s instructions Numbered 10, 11, 13, 14 and

17 refus€d by the court are subject to the same criticism

as is made of instruction Number Five. Moreover, iristruc-

tions as to the general reputation of the deceased were prop-

erly refused.

Instruction Number Twenty advises the jury that a con- _

stable has no juriadiction to arrest a person beyond the

confines of the district for which he was elected. This was

error. As above pointed out, it is tlie duty of a constable

_to make arrest anywhere in the county for crimes committed

in his presence (Miss. Code Ann., § 2467;—1956), or to pre-

serve the peace (Miss. Code Ann., § 3887—1956), and he

may be fined for failure to perform his-duties (Miss. Code

Ann., § 3892—1956).- The instruction was properly refused.

‘The manslaughter instruction, Number Twenty-four, re- .

- fused by the court, is-repetitious of instruction Number

Twelve granted to the defendant moreover, _the phrase

‘‘then you must find for the defendant’’ is confusing.

The defendant complains thét instruction Number Six _

for the State is erroneous and is reversible error. It is as

follows: 7 acs 3

fete Court instrycts the jury for the State that in. ,

order to justify a homicide on the plea of self de--:

wi

- or refusing, instructions in this case.

14a

- Appendia A

* “fense there must be doknething shown in the conduct.

of the deceased indicating a present intention to kill

or do some great personal injury to the slayer, and

imminent danger of such intention being accom-.

‘plished; mere fears or beliefs are insufficient: The

danger must be such as to lead a pefson reasonably

.to believe that the killing was. necessary to prevent

- the deceased from killing him or doitig to. him some

great nenny harm”?

This instruction is based upon Mississippi Code Annotated,

section 2218 (1956). :

. Onur trial courts have been granting, and this Court has

been sustaining, this instruction, or one of similar verbiage

since the early days of our State’s jurisprudence. In Cole-

man v. State, 22 So. 2d 410 (Miss. 1945), this Court said

that a similar instruction had been approved since Wesley

‘vy. State, 37 Miss. 327 (1859). See: Dobbs v. State, -200

Miss. 595, 29 So. 2d 84 (1947); Bailey v. State, 174 Miss.

453, 165 So. 122 (1936); Johnson'v. State, 140 Miss. 889,

' 105 So. 742 (1925) ; Harris v. State, 47 Miss. 318 (1872) ;

Bailey v. State, 174 Miss. 453, 165 So. 122 (1936); Head

v. State, 44 Miss. 731 (1871); Ransom v. State, 149 Miss.

262, 115 So. 208 (1928) ; Kendrick v. State, 55 Miss. 436

(1877). This identical instruction is held to be good in ~

the case of Holmes v. State, 199 Miss. 137, 24 So. 2d 90

- (1945).

. The defendant obtained fifteen. instrations, and ‘the

State obtained seven. The instructions for the defendant |

were liberal and we find no reversible error in the granting, |

.Q

e VI

The appellant complains that the trial court committed

reversible error in permitting the pathologist, Dr. Cook, to

testify that the powder burns on the flesh of the deceased |

i

Appendia A enahy

indicated that the gun was a short distance from the body

when fired. We are of the opinion, however, that the tes-

timony was properly admitted. King v. State, 251 Miss.

161, 168 So. 2d 637 (1964).

-°

i

The evidence with reference to the head wounds of the

deceased was properly admitted, and corroborated the tes-

timony’ of witnesses that, after the officer fell, accused shot

him in the back of the head, and this goes directly to the -

issue of malice as an element in the charge of murder. |

- There are other alleged errors assigned, and although

they were not argued, nevertheless, we have carefully ex-

amined these assignments of error, and we do not find error

for which this case should be reversed.

We therefore affirm the judgment of the trial court ois :

set June 30, 1967, as the day for the execution of the ap- -

pellant Cloudies Shinall in the gas cham or as ee by

law. 3 |

AFFIRMED.

_ Aux Justices Concur.

ae 7 ;

Note 1: Bergman v. State, 160 Miss. 65, 133 So. 208

(1931) ; Shedd v. State, 203 Miss. 544, 33 So. 2d 816 (1948) ;

Willams v. State, 120 Miss. 604, 82 So, 318, 84 So. 8 (1919) ;

Wilhams v. State, 127 Miss. 851,-90 So. 705 (1922) ; Fletcher

v. State, 129 Miss. 207, 91 So. 338 (1922) ; Walker v. State,

_ 188 Miss. 177, 189 So. 804 (1939) ; Cutrer v. State, 43 So. 2d

385 (Miss. 1949) Coleman v. ey 218 Mine. 246, 67 So.

2d 304 (1953).

16a °

APPENDIX B

»

: | Excerpted Proffered Testimony of Sheriff Gray

(797) Q. My question which I: was about to put to you .

was as follows: Dig you ever receive complaints. ffom the

citizens of Palmers Crossing, notably, such people as Mary

Jones, Bamer Madison or any other people down. there

about the conduct of Mr. Humphrey and Mr. Kitchens with

respect to the work. that was going on Gown there as so-

called police work? = ) :

By Hon. James Finch: Let the record show that -

even in the abserice of the jury we object to this and |

move that it be stricken, that question, from this

record.

By the Court: Yes, I would sustain as to that

question.

By Hon. James Fjnch: Thank you.

By Hon. Raymond A. Brown: If your Honor

pleases, I thought that on an offer of proof you

would record the objection and allow me to proceed.

. By. the Court: Well I’m going to let you pro-

; coed. He. ape and I sustained it, but go ahead.

‘ = Q. Would you answer that question’

By the Court: Let the record show I sustain the

objection to that question in the presence of the jury.

(798) Now you sated go ahead and develop your tes-

; Gmony.

_By Hon. iheyueend A. Seis | Yes, sir. But

that’ question was out of the presence of the jury,

Judge.

By the Court: Yes, I know. I sustained the ob-

jection to that question — asked in the presence -

of the jury.

.

’ ®

Ln DAA nda aid as ens

. ,

BNO G OMIT ET A ORI PLATO OIE HN ssahandiaiiiad Hales anette

ikea 4 lee

Mints te Rasen a

ee ——

Appendia B

By Hon. Raymond A. Brown: Thank, you, your

Honor. ts ;

Q. Now Sheriff, is it not a fact that you received com-

plaints from these citizens about the actions of these con-’

stables as law enforcement people. in this area called Pal-

, mers Crossing? A. I have, a few.

. Q. And is it not a fact that among the complaints that }

‘you received from this particular area, those from Bamer

Madison and those from others, that. they were complaints

because of mistreatment of these people by these law en-

forcement officers in terms of assaults on women, beatings

administered to men, and ‘people arrested and brought in-

just for no real cause? In fact, you had to intervene from

time to time, isn’t that correct? A. I don’t -recall inter-

vening, because a lot of times we get, complaints from folks

‘ saying they’re not drunk. In fact, about nine out of every

ten you pick up they’ll say they’ve only had two beers. 6

Q.Right. A.-But I have had some complaintson that.

Now I’ve picked up people myself who’ve complained and

said they wasn’t (799) drunk too. by '

Q. But you have never had anybody complain against:

you, I’ll bet my life, that you tried to assault women or beat.

up anybody. Isn’t that right? A.-I don’t recall any.

Q. I’d bet on it, that you have not. But I’d also ask you

if it isn’t a fact that with respect to these men, ‘Kitchens

and Humphrey as a team, that you have chad such com-

plaints made to you by people in terms of assaults on fe-

males? A. I probably,—I know of a couple; yeah. ?

'. Q. Now is it or is it not a fact that in your term of office

where the Defendant was concerned that'you received com- x

plaints with respect to mistreatment of him by Huniplirey |

and Kitchens from time to time, this particular Defendant, °

Cloudies Shinall? A. No, not before the arrest.

Q. You have heard of them after the arrest? A- Yeah,

just heard of it after the arrest. eal -

~

* wees Tatelaa!

AT PION FIP RIE PING OF us s ah auatle sesbihittinsen i

apa |e oats - AL A ge WA TSE ’ at.

18a

Appendia B

—Q. And you happen to be a very active officer who really os

mows that ‘section, Palmers Crossing, and the individuals

‘there, isn’t that right? A. I know a few down there, yeah.

Q. In fact I think you know it very well indeed, and

they know you. A. Well,—

_ Q. And these people have come to you for help in this

particular regard, is that not right? A. They have, on

several occasions, yeah.

-Q. Yes; and even above and beyond that, as a result of

‘this I believe you recommended the dismissal of Mr. —

Kitchens or the obtaining of his resignation as constable

. down there, isn’t that right?

(800) By Hon. James Finch: Your Honor, we

- can’t possibly see where this is— .

_+ ° By the Court: Well let him make his record.

He’s got a right to make a record.

By Hon. James Finch: * Well let the record show

that the State objects to it. |

By the Court: Yes, all right.

‘Q. Isn’t that correct, Sheriff Gray? AI wouldn *t nec-

essarily say that, not actually, no. ;

Q. That’s pretty close to true, isn’t it? You eile t

say everything I’ve said; but that’s close to true, isn’t it?

‘A. Well to-a certain extent, yeah.

Q: And the fact is that this man after this unfortunate

tragedy to Mr. Humphrey did resign within a week or 80,

isn’t that right? A. He did. |

Q. And ‘it was partly because of your investigation _

of these. complaints that he resigned, isn’t that. co

Sheriff?’ A. It might have played a little part in it,

_ wouldn’t say it carried the whole weight. \

Q. No, no, I did not say that.. I said partly because of .

your own investigation and these complaints.: Is that right? ~

A. I would say yes.

; ,

198

Appendia B

(1239) Mrs. Mrbrep ApaMs, introduced on behalf of the

defendant, after having been first duly sworn, testified as

follows: |

-

, Direct examination - Hon. Riginead A, Brown:

™-Q. What is your mila, Mrs.. Adams? A. Mildred

Adamns, ce

Q. Where do you live, Mrs. Adams? A. Palmers

Crossing.

Q. How long have you lived theret A. cen four

years. .

- . Q. Did you know the desinied Mr. Humphrey? A.

Yes, Sir.

Q. Did you have an experience with Mr. Humphrey that

_ was communicated to the Defendant that dealt with =

-pertiedias Oe «es:

By Hon. James Finck: Object to his leading the

witness, Your Honor.

By the Court: — don’t lead her. She i is your,

witness.

' Q. Would you tell the Court with seapéet to any incident

that involved you and the deceased Mr. Huniphreyt A.

Yes, Sir. |

Q. Go ahead, and would you speak up, please?

By Hon. James Finch: To which we object, —

Your Honor, any incident that occurred between she |

and Mr. Humphrey, we object to that. —

By the Court: Yes, I sustain as to that.

ole 1240) Would you tell us with iil to Mr. Humphrey ©

| what, if any experience you *ve had with Mr. ‘Humphrey—

| & 20a

wae : - Appendia B

By Hon. Jaines shane We suit objected to that,

Your Honor.

_ By the Court: Ness I sustain.

Q. Did you ever haves any experience with Mr. songneny

in which an assault. was commie on yout |

By Hon James Finch: N ow y Your Honor, we

object.

- By the Court: Yes, I sustain as to that.

Q. Well did you in Palmers Crossing have any incident

which involved Mr. Humphrey in the year 1964? ©

~ aa Hon. James K. Dukes: Your Honor, we

object again for the same reason.

_ By the Court; I sustain. tae

By Hon. Raymond A. Brown: If Your Honor

pleases, this goes to the state of mind. of this ‘De-

fendant in the community,

By the Court: That’s all right. I sustain.

_as to his state of mind the objection i is sustained.

By the Cougt: That’s right.

By Hon. Raymond A. Brown: Then may “we |

_ have an offer of (1241) proof? That’s all I can do.

By the Const: Yes, let the jury go in the jury

room. : | 7a .

| oo e the jury was excluded.) °

a 1242) Q.1 Now, , Mrs. Adams, you know the Defendant,

right? A. Yes, Sir.

Q. And it is a fact that. you told ie and his snther

about this incident that we’re going: to talk about, isn’t

that true? A. Ho, Sir. | :

.

By Hon. Raymond A, Brown: In other words,

6S sce aise be a tei a DS RD BAAN IE cnt HS I ithe LOOM anil 8

Nelaciet AM se w

%

21a

"< Appendia B

“¢ Who did you tell about it? A. That IL told Shinall?

““@ You. A. Me:

Q. ‘Well who did you tell about it? A. Well I don’t:

know. I told many people, they knew about it. I don’t

- know who I told. am ~

» + Q. You told many people in the sonnianlithe, | is that right?

A “And a.lot of them heard it from other people.

Q. And what you mean is you did not directly tell Clyde

Shinall? A. No.

Q. Did you tell Mrs. Shinall about it? A. Yes, I told —

Q. And did you_tell her about it at the time that that

_ Defendant-was living in her home as her‘son? A. No,-Sir.

Q. When did you tell Mrs. Shinall about it? A. When

| they came to me and asked me about it.

'Q. Now when did this happen? * This happened

in ’63. ;

(1243) Q. In 19639 A. In 1963, I think it was.

Q. And did you testify to this in open court before this?

"Ay AL Yes.

Q.: And would you tell His Honor just week aieiiiail

with. respect to this incident in 63? A. Well we was at

The Black Cat, we had pulled up there and parked and

-.Mr. Kitchens and Mr. Cotton came up behind.us._ .

Q. Now don’t talk so fast. Talk slowly. Mr. Kitchens .

and: Mr. Cotton,—you mean Cotton a A. =

Sire

Q. ‘Came up behind you? A. Vin Sir. |

Q. ‘Tell us slowly in detail so that the lady can get your

testimony. A. Mr. Kitchens got out and went in The

Black Cat. Mr. Cotton got out and came to the car, wees

.. we were at. He opened the door on the.side— ©

Q. Not so fast. Speak loudly and slowly, please,

Madam.

By Hon. James Finch: May the record show

even in the absence of the jury, Your Honor, be- ©

22a

Appendix B

cause this testimony if permitted to go into this —

record might tend to and will be and is improper

even for some other Court to consider and even. | ~

“in the absence of the jury, she’s already ‘said that

it happened in 1963—

- ° By Hon. Raymond A. Brown: That’s right. .

By Hon. James Finch: —which. makes it very |

remote (1244) plus the fact that it was ‘hever com-

municated to the Defendant— .

_ By Hon. Raymond “A. Brown: She said | not’ .

directly. 4

By Hon. James Finch: Would you let me bag

ish please, Counsellor?

By Hon: Raymond A. Brown: Sure. ; g

_. By the Court: Yes, I am going to rule that a

this would not be competent and it wouldn’t be i.

. °. competent here in the absence of the jury because !

” it was not conveyed to the Defendant Shinall:

By Hon.-Raymond A. Brown:. If Your Honor

pleases, this bears on the issue of general reputa- s

tion, and she said very precisely that everybody in

the community or that many ‘people in the é¢om-

munity knew about it, and this is the only way

that I,can develop it@in terms of reputation. Now —

whether or not another court will determine whether

it is proper or‘not, I ‘submit i is up to the court. To

say that. an upper court should not even commer

it

By. the Court: It a always ‘Sonn my policy°

in this coprt\to let you make your record. So

go ahead and ask. your questions.

(1245) By Hon. Raymond A. Brown: That ’s

all I’ m asking for, Sir.

, Q. Now, you’ve stated it happened in 1963, and you

__were-about to tell us at the time of the objection what ~

$4)

> 28a |

Appendix B |

} | actually happened. Would yon go ahead, saaldetes “A. Mr. :

Cotton came up on the side I was sitting on and ovened

’ the door. He told me to get out. I got out and stood

up side the car. He said you been drinking # I said yes,

sir. He said you’re drunk. I said no, sir. He said go .

get i in the car. I said—_

Q. Now, . Madam, I only suggest to you. one thing, to

speak B sages and distinctly so that everyone can hear

you. You are mumbling downward and it ’s jost. _A. Well

that ’s the way I talk. I can’t-help that. 2 -°

Q. Talk to me, please. A. And he said go” get in. . the

car..I asked him why. He said don’t ask me no ques-

and I asked him not to push me, just: ‘to tell me what

he was arresting me for.

_* * * : ‘

(1247) Q. And what did he say to you? A. He said to

get in the car and don’t ask him no questions. |

Q. And did you.do that? A. No,I didn’t. .

Q. What did you do? A. I told him I’d get in there

when he told me what he was arresting me for, and he kept —.

~——pushing me, and I pushed him back and we got to fighting. -

‘Q. And what happened? A. Well, Mr. Kitchens came

out and he saw we was fighting out Gere | in the road and

he told a boy—

. tions, ‘just get in the car. And I said I will if you tell -

me what you’re arfesting me for. Then he/ pushed me.

Q. What was Mr. Humphrey fighting with? What did ~

he have in his hand? A. He had a blackjack in his hand.

Q. What did you have in your hands? A. Nothing. .

Q. And what do you weigh? A. At that time I weighed _

about a hundred and twenty-eight.

Q. And Mr. Humphrey, as I understand, was about six

feet tall and a substantial man. A. Yes, sir.

Q. So he had a blackjack and you, at a hundred and

twenty-eight, had nothing. Right? A. That’s right.

Pe -

a

Pall : 2 24a

Appendia-B

Q. Go ahead. A. And Mr. Kitchens come out of the

Black Cat and he saw we was fighting, so he. told O..D. to

go out there and see if he couldn’t stop us. So he come |

out there and told: me to stop trying to fight against him firs,"

and get in the car, and he put me in the car. —

Q. He putyou in the car? A. Yes, sir.

Q. What then happened?, (1248) A. We went eal

to a place called Roger Lee’s Place and he stopped the car

and Mr, Kitchens got out and went in and Mr. mnerne? !

stayed in the ‘ear.

Q. Mr. Kitchens got out and Mr. Humphrey stayed in nt

A. That’s right.

_ Q. All right, go inl A. And Mr. Kitchens brought

some more mens out there and me and Mr. Humphrey was

still having ‘words, and so he said— b

| Q. Who said? A. Mr. Humphrey. When Mr: Kitchens _

ee ‘got back in he said I know what we ought to do with her,

y _ we ought to carry her down here in these woods.

Q. Yes? - A. I said yeah, I heard about that, you all

carrying people to the. woods, and I said if you carry -~

down there some of us ain’t coming out. _

Q. You chad heard about people saying about they car-

—-~¥ied people to.the woods?» A. Yeah, they—

a -Q. What had you heard? A. I had heard that they.

arrested colored mens and carried them to the jail and

carried the women to the woods when they wanted to.

By Hon. James Finch: Your Honor, we object

to this going into this record— rf

By Hon. Raymond A. Brown: Well, this j is what

commenti te reputation is, your Honor. This is what reputation

is, what one hears in the community.

, By the. Court: Well, go ahead. Make your -

record. ice ‘ tang

ad

_. 25a

Appendia s

* (1249) Q. ‘AN right now, : with respect to what you had |

heard, who have you heard this from, about them carrying

the.men to. jail and the women into the woods? A. I had

heard it from different friends around there I’d be talking

to. When something would happen. like that we all tolng

in the community we would talk about it.

Q. You were in communication? A. Yes, Sir. °

Q. Now how often did these things happen that you —

heard about? Was it weekly, monthly, yearly, once in a

while or what? A. It happened about two or three times

a month.

Q. And who would be involved\in these: things? “A. It

would be Mr. Kitchens, Mr. Cotton, and a colored woman.

Q. Mr. Kitchens, Mr. Cotton and a colored woman? 7

A. Uh-huh.

Q. The colored - woman being taken into the ‘woods,

~ right? A. Yes, sir.

Q. All right: Now then, because you had heard these

things when you got in the car what was your state of

‘mind? A. That I didn’t want to go to the woods with them.

Q. And then what happened? ‘A. Well that’s why I

was resisting.

Q. Yeah. Well what hoo after you got in the

cart. A. Well after Mr. Kitchens brought two or three. |

more colored mens out there and put them in the car and

me and Mr. Humphrey’ was still having words, when we

got up to there, I don’t know the sireet, it was where the

Sears Roebuck Warehouse is or Sears Roebuck Store,—I

just saw the Sears .sign,—and he told Mr. Kitchens to

stop the car, said if she don’t shyt her mouth I’m going

to shut it for her, and he came back there and tied the

‘door—.

(1250) Q. Now this lady is having to write this down,

* sO you must slow up and talk more distinctly. Go ahead

now. A. And he came back there and opened the door

|

26a

kPa Appendiz B

and pulled me out and started hitting me again with the

blackjack and we started fighting and I bit him. He told ~~”

Mr. Kitchens to come get this black so, and so. off of

__ him, and Mr. Kitchens got out and he ‘hit me wight here.

_(Indicating)

_Q. Well, speak up so thatthe ater can dion: Mr..

Kitchens got out and what? A. He hit me right here Pe

side the nose-with a pistol, and I wasn’t but half un-"

conscious. I was never unconscious,—

-Q. All right, go ahead. A. But it weakened me and

: ‘then they put me back: in’the' car and tried to shut the

door on me, and this other fellow that was) in there he

grabbed me and pulled me out of the way, and when we got

to the jail they let the colored mens out and when I

_ started to get out they told me to sit there; and after

- the colored mens: got out then both of them got. me and

'" earried me in the jail,.and Mr. Print Jones he was the

jailer then and he— |

_.Q: Mr. Print Jones was the jailer? A. Yes, sir.

‘ Q. What did hé do? ‘A. He-asked Mr. Cotton what

happened to him,gand he told him that I had did that

to him. Hevsaid the black so and so, you ought to have.

killed her. And then they vaaciares menting me again there

- in the jail.

_Q. Whot Not just they. ‘Whot A. Cotton . and

™ Kitchens.

Q. All right. Now then what henesiad after that?

A. Well. I hollered and two ‘colored trustees came down

‘and got me.

(1251) Q. Yes? Go ahead: A. And before - they got

me as I started in the door Mr: Cotton pushed me and I i

fell on the concrete steps.

-.Q. Mr. Cotton Humphrey? A. Yeah. .

-Q. Go ahead, what happened then? A. The “ trusties

took me upstairs and locked me up, and Mr. Cotton come

~

i Antiet has) et AL. SN

Appendiz B

° up there and stood on athe door steps and told. me if I |

_ didn’t shut my miouth what he would do to me.’ |.

Q. Now was this the last experience you had with Mr.

Humphrey or with Mr. Kitchens? «A. 20a, Of.

Q. You had no other experience with them? A. No.

Q. Now for the record, do you know the reputation

of Mr Humphrey i in the community for peace and violence?

Yes or no?. A. Yes. Sica

~ Q. You.do? <A, Yes. |

_ Q. ‘Now is that reputation | in thé siete good or

bad? A. It is bad.

Q. It is bad as far as you know. A: Yes,

@*

3

‘By Hon.. Raymond A. Brown: ‘That i is my offér

of proof, “your Honor. ‘

By Hon. James Finch: To all. of arse we °

object.

By the Court: Yes, I oustale.

By Hon. Raymond A. Brown: The same ‘argu-

- 8. . ments are repeated, (1252) your Honor, as hereto- ..

_ fore made in support. of the other offer as to Mrs.

; ~~ Shinall.

° By the Court: Yes, all —-.

; » (Witness excused.). | | a F

ue. ") z * * e ie a? my ih

a sf

ei (1276) Mr. E. D. (Dott) ‘Sutiivan, introduced on

behalf of the Defendant, after we | been first duly

sworn, testified as follows:

Direct examination by Hon. Raymond A. Brown:

Q. What is: your full name, sir? A. E. D, Sullivan.

They call me Doll Sullivan. |

Q. You are known as. Doll? A. That’ 5 right.

Q. D-o-l-1? A. That’s right. , pea

Q. Now Mr. Sullivan, aon do you live? A. At

Palmers » Crossing. afi

28a |

dein B

Q. And chow sian hav you lived i in Sumnee Crossing?

“A. Since forty-nine.

Q. And do you know / the reputation of Constable

_Humphrey and Constable Kitchens in that particular

community, their general reputations | for peace and

violence? |

‘By Hon. J ames: Finch: To which we object,

By the Court: Yes, sir, I sustain. .

By Hon. Raymond A. Brown: Would you permit

me to proceed, and then I’ll make an offér ‘of proof

out of the presence of the jury. as to reputation!

(1277) By the Court: Yes..

Q. Now, did you previous 0 March, 1965 he any. oe

specific experience with Mr. Humphrey and related to.

violence arid arrest? ;

‘By Hon.: James Finch: To which 1 we object.

By the, Court: Sustained,

By Hon. Raymond A. Brown: May IT have an

offer of proof?

By the Court: Yes, let: the jury: go in the jury

room. 7 .

_ (Hate the jury was excluded. )

Q. few, Mr. Sullivan, you ‘say you have lived, 3 in that

community since 19497. A. Yes:

Q. By that’ community, r mean the Palmers Onyoning

area. A: Yes. . ™ :

Q. Am I correct? : A. Yes. |

Q. Now since you have lived there since 1949, sir, have -

you come to know the general reputation of Constable

Humphrey ‘for. peace ‘and violence in the community? ©

. a

Sa i Mi Albamnoh cid MA amine Ae RS LOA a aida iE Reg CMT Sato 2 ue dyer idk cance aalednc St, Hons Bim Uitte becbled A ORS alone wll Jeena agi sbN ct! se

e » .

Sheet de oar hater inl tty Hi

298

* Appendia B

By the Court: Answer yes or no. «

A. Yes.” Nees

Q. Now would you tell. the Court exactly aie,”

By the Court: You can ask hin. now—

_ (1278) .By Hon. Raymond A. Brown: I am going

to ask him now what it is, Sir. {

~— By the Court: He has said he knows the repute.

, Som, and the question now is, is it good ‘or andl

Q. Is that ieletiniion si or bad? A. Bad.

_Q. Now, you base this not only on your own personal

rs experience ‘but on information and.from what you have —

heard from others in the community? You base it on your:

P rsonal experience and from’ what you’ve heard from™

ers, is that right? A. On myself and others.

- Q: And others. Now, Mr. Doll Sullivan, was ‘tists an

- occasion in the quarters or in the Palmers Crossing section -

when you were arrested by. Mr. Humphery? A.. Yes, Sir. .

" _Q. Now, where were you at the time that he arrested’

you? A. I was about a hundred and fifty 1 feet from my

front door.

Q, About a hundred and fifty feet from your front door,

is that right? A. Yes, Sir, on my way to the house.

_Q. You were on your way home? * “A. Yes, Sir. .

By the Court: Can you qualify when this was?

Q. When was this? Was this before March of 1965,

before the Humphrey killing? A. It was before.

Q. All right. Now about what year, going back from

the (1279) Humphrey incident, how long bea bis it in.

1965?

By Hon. J ames “Finch: Object to ‘his Tending,

"a ial

Hl tere 8 cw

°

‘

.

.

.

i

%

oO

.

.

| Appendia B

A : By th the Cia: Yes, don t lead him. Let him tell

Ng he knows.

_, A. it ei ie sect.

Q. All right. Now. with respect to this, would you go

“ahead and tell us just what happened? A. I had been up

on the. hill in a room, a house rather, because Mr. Hudson

was going to’move the house we was living in, so I was on

my way back to the house and: just as I got near the

house well Mr. Kitchens drove up side of me and I didn’t

even look back, didn’t know who it was, and Mr. Cotton

. jumped out of the car and—

Q. Who is Mr. Cotton? A. Cotton Humphrey jumped

out of the car and commenced beating me. . Well Mr.

s<itchens— : ?

- Q. What did he beat you with? A. A ike

Q. Where were you struck? A. On the head. -

Q. And how often were you struck?.. A. I don’t know

* how many times because Mr. Kitchens, he jumped out of

‘the car and run around the car and struck me.

Q. Struck you with what? <A. A pistol. -

Q. A what? A. With a pistol and handcuffed me. |

Q. So did you ask them what you were. being arrested

for? A. I didn’t have time. They throwed me up in the

~ ear and Mr. Cotton, he said I ought to kill you. So I told

them’ to: (1280) pull the handcuffs of me.’ Well Mr.

’ Kitchens drove on up to the jail housdé with me. Well Mr.

Cotton, on the way up here, he struck me a couple of, more

times in the face.

Q. What happened at the jaif? A. Well, they locked me

up. On Monday Morning they—

Q. Did you: require any special medicine at the jailt.

A. They wouldn’t give me none.

Q. Well I’m — you, did you require anyt A. Yes,

Sir, I did.

Q. Well, why did you require any special medicine?

A. Because I was hurting, and any time I gets hit on

OREO Ct CoE RO ET TREN TE orem

|

pitas dtth ds idenesiaih ena eniny hea siabenn ali pana bees

* . ; 4

Pt erat tN tA eT Be | aa

Sla

‘Appeniia es

the head or en like that I takes the in tudbe,

and I have to take medicine for a headache practically -

all the. time, and if I’m struck on the head like that it’s

worse. Well, I asked for medicine but I didn’t - ‘get it.

Q. Did you ask these two men, Hamphrey and Kitch-

ens? A. I asked the-jailer, Mr. Print Jones.

Q. Now after this were you released from jail? A.

Not at that particular time.

Q. Well when were you finally released from jail?

A. After I went and served time on the county road. ~

-Q. Now, did you see Mr. Humphrey and Mr. Kitchens

together regularly in the “Paimers” Crossing section? A.

_ Pretty regular.

Q.. Would they be together or separate? A. Together

most -of ,the time. |

Q.. Now how often vied you say you have seen these

. Men riding together in the car? A. Practically every

weekend, beceane I’d never hardly be out only. on the

weekend.

Q. Now, what have you heard concerning their repu-

tations? You said you knew their reputations. / What .

was it that (1281) you heard these men did on of Pasko

or during the’ week where ieise were concerned? |

ae

a»

By Hon. James Finch: To which. we nade

even in the absence of the jury. | °

By the Court: Yes, I would sustain as to that.

By Hon. Raymond A. Brown: If Your Honor-

pleases, may I press it as that which formed the

‘reputations.

By Hon. James Finch: Now ee Honor—

_ By the Cvurt: He’s already testified that he ©

knew his general reputation and that that reputa-

- ° tion was bad.

>

ez

_ 82a

“Appendia B

By | ai Raymond A. Brown: These would be

specifics that would support his knowledge of the

reputation.

By Hon. James Finch: Your Honor, you can

never go into specifics in the determination of this.

By the Court: I sustain.

By Hon. Raymond A. Brown: That is my offer

of proof, Your Honor.

By Hon. James Finch: To’ which we object.

By Hon. Raymond A. Brown: And I press ‘it,

of course, on (1282) the same grounds that it. shows

state of mind and reputation of the deceased.

By Hon. James Finch: We object.

By the Court: I sustain. Bring the jury back.

(Witness excused.)

en Se er ae

-' 83a Cie

APPENDIX Cc

Pertinent Secthens of Miss. Code pn 1962

Regarding Juror Selection

§ 1762. Who are competent jurors.

Every male citizen not under the age of twenty-one

(21) years, who is either a qualified elector, or a resident:

freeholder of the county for more than one year, and has

not been convicted of an infamous crime, or the unlawful

sale of intoxicating liquors within a period of five (5)

years and who is not a common gambler or habitual drunk-

ard, is a competent juror; but no person who is or has

been within twelve (12) months the overseer of a public

road or road contractor shall be competent ‘to serve as a

grand juror. But the lack of any such qualifications on

the part of one or more jurors shall not vitiate an indict-

ment or verdict. However, be it further provided that .

no talesman or tales juror. shall be qualified who has served

as such tales juror or talesman in the last preceding two

(2) years; and no juror shall serve on any jury: who has —

served as such for the last preceding two (2) years; and .

no juror .shall serve who has a-case of his own pending i in.

‘that court, provided there are sufficient qualified jurors

in the district, and for trial at that term. :

§ 1762-01. Resident frecholders not qualified electors—

competent jurors by court order.

. Whenever, any judge of the circuit court of any circuit.

court district determines in his discretion that persons’ who

are then, and have been for more than one (1) year previ- -

ously thereto, a resident freeholder of any county in his dis-

trict though not a qualified elector of that county, should be

' ‘made and constituted a person qualified to serve as a compe-

tent juror of the county of that person’s residence, but who

is otherwise qualified, the said circuit judge is authorized to -

make and enter an order in term time or in vacation, upon

34a

Appendix. C “i

F ee, :

the minutes of the circuit court of such county to that effect

and thereupon all persons in that county whd.are and have

. been such a resident freeholder shall thereupon be qualified,

in accord with the terms of this act, to serve upon any jury

_* jn that county. Said order shall remain in full force and

fo effect until terminated by an order of the judge ‘of the

: circuit court district in which said county is situated, to.

be entered upon the minutes of the circuit court in that

tl in term time or vacation.

§ 1762-02. Who are competent jarors—atvee am of eomnt

order. .

Upon the entry of the itisiiba order by said circuit

“Fudge of the circuit court, and until its termination by an

order made under Section 1 [§ 1762-01] hereof, supra, every -

‘male citizen not under the age of twenty-one (21) years,

who is either a- qualified elector, or who is and has been

a resident freeholder of the county for more than one (1)

year, and has not ‘been convicted - of an n infamous-erime, :

or the unlawful sale of intoxicating liquors within a period

of five (5) years and who is-not a common gambler or

habitual drunkard, is a competent juror; but’ no person

who is or has been within twelve (12) months the overseer.

of a public road or ‘road contractor shall be competent to

serve as a grand j juror. But the lack of any such qualifica-

_ tions on the part of one or more jurors shall not vitiate an

. indictment or verdict. However, be it’ further provided

that no talesman or tales juror shall be qualified who has .

served as such tales juror or talesman in the last preceding,

two (2) years; and no juror shall serve on any jury who

has served as such for the last preceding two (2) years;

- and no juror shall serve who has a case of his own pend-

ing in that court, provided that there are sufficient qualified

jurors in the district, and for trial at that term.

Ld

VARIN A CERN RE I OB A PRPC PESTLE CLE LE SLEAHD nts ll

at ag Sew.

35a

: Appendia C

§ 1762-03..-How lists of jurors procured. -

As long as an order provided for by Section 1[§ 1761-01]

supra, is in force and effect, the board of supervisors at

the April meeting in each year, or at a subsequent meeting

if not done at the April meeting, shall select and make a list

of persons to serve as jurors in the circuit court for the

twelve (12) months beginning more than thirty (30) days

afterwards, and as:a guide in making the list they shall use

the registration book of voters and the land assessment roll

of the county, and shall select and list the names of qualified

persons of good intelligence, sound judgment, and fair char-

acter, and shall take them as nearly as they conveniently

can, from the several supervisors districts in proportion

to the number of qualified persons in each, excluding all who

have served on the regular panel within two (2) years, if _

there be not a deficiency of jurors. The clerk-of the circuit

-court shall put thé-names from each supervisors. district in

“a separate box ‘or compartment, kept for that purpose, _

which shall be locked and closed and sealed, except when

juries are drawn, when the names shall be drawn from each

box in regular order until a sufficient number is drawn. The

board of supervisors shall cause the jury box to be emptied.

of all names therein, and the same to be refilled from the

'- jury list as made by them at said meeting. If the jury box

shall at any time be so exhausted of names as that a jury

cannot be-drawn as provided by law, then the board of super-

visors may at regular meeting make a new list of jurors in

‘the manner herein provided. —

In order that the board of supervisors may properly

perform the duties required of it by this section, it is hereby

made the duty of the circuit clerk of the county and the reg-

istrar of the voters-to certify to the board of Supervisors

during the month of March of each year under the seal of «>

his office the number of qualified electors in each of the sev-

eral supervisors districts in the county. _

36a

Appendix C

‘If and when the above order of the district judge is ter-

- minated, then thereafter the land. assessment roll of the _

county shall not be used or referred to in making a list’ of ©

‘persons to serve.as aa ig in the said circuit court.

--§ 1762-04. When act’ becomes operative—conditions.

The “authority conferred by the terms of Sections 1,2

. and 3 [§§ 1762-01, 1762-02, 1762-03], supra,-shall | ‘be exer-

- eised.only on and after any date when persons who are and

have been resident freeholders of a county for more than .

one (1) year are eliminated by amendment or otherwise -

as qualjfied or competent jurors under the provisions of

Section 1, Chapter 308, Mississippi Laws of 1962, being

Section 1762, Mississippi Code of 1942, Recompiled; and

Section 2 of said Chapter 308, Mississippi Laws of 1962,

being Section 1766, Mississippi Code of 1942, Recompiled.

Ss * *

"$1766. How lists of jurors procured.

The board of supervisors at the April meeting in each .

year, or at a subsequent meeting if not done at the April

meeting, shall select and make a list of persons to serve as

jurors in the circuit court for the twelve (12) months

beginning more than thirty, (30) days afterwards, and as

a guide in making the list they shall use the registration

book of voters and shall select and list the names of quali-

fied persons of good intelligence, sound. judgment, and fair

character, and shall take them, as nearly as they conve-

niently can, from the several supervisors districts in pro-

portion to the number of qualified persons in each, exclud-

ing all who have served on the regular panel within two (2)

' years, if there be not a deficiency of jurors. : The clerk of

_ the circuit court shall put the names from each supervisors

district in a separate’ box or compartment, kept for the pur-

pose, which shall be locked and kept closed and sealed, ex-

cept when juries are-drawn, when the names shall ve drawn

- > ee

ad

_. 8Ta

A ppendia C

from each —_ in regular order until a sufficient number i is

drawn. The board of supervisors shall cause the jury box

to be emptied of all names therein, and the same to be re-

filled from the jury list as made by them at said meeting.

If the jury box shall, at any time, be so exhausted of names

as that a jury cannot be drawn as provided by law, then the

board. of supervisors may at any regular meeting make a

new list of*jurors in the manner herein provided.

In order that the board of supervisors may properly per-° |

form the duties required of it by this section, it is hereby

made the duty. of the circuit clerk of the county and the reg-

istrar of the voters to certify to the board of supervisors

during the month of Mareh of fer year under the seal of

his office the number of qualified electors in-each of the sev-

eral vin hii districts 1 in the county.

§ 1768. List certified to circuit court.

A certified copy of the lists shall be- immediately de- ¢

-livered by the clerk of the board of supervisors to the clerk

of the circuit court, and shall be by him carefully filed and |

preserved as.a record’ of his office; and any alteration

thereof shall be treated and punished as provided in case

of the alteration of a record. i?

§ 1769. Names of jurors not serving. returned to box.

The'slips containing the names of jurors drawn for any

regular or special term shall be safely kept by the clerk

until the sitting of the court at such term, and the names

of such persons as shall fail to appear, or shall be excused

by the court, or not required to serve in consequence of the

’ failure of the term, or other cause, shall be returned to the é

box. <

§1771. List of jurors ‘not aici

_ After the expiration of the twelve months for which any

juror list is made, the clerk thereof shall make a list of

| 2

38a

Appéndia C

the names of all persons naiaed in the list who did not

~ gerve as jurors for the week or as retained talesmen

during the year on which the jury list was made, and shall

deliver the list, duly certified, to the clerk of the board

of supervisors before its first meeting in the next. year;

and those names shall constitute a part of the list of jurors

for the ensuing twelve months, unless the board of super-

‘visors shall, for reasons deemed good, cause some of said

“hair names to be omitted from the list.

§ 1772. _How grand and petit j jurors ‘drawn.

At_each regular term of the Circuit Court, and at a

special term if necessary, the Judge shall draw, in open

court, from the five (5). small boxes enclosed in the jury ©

box, slips containing‘ the names of sixty-two (62) jurors

to serve as grand and petit jurors for the first week and

“thirty-six (36) to servé as petit jurors for each subsequent

week of the. next succeeding term of the ‘court, “drawing

the same number of slips from each and every one of the -

five (5) small boxes if practicable, and he shall make and

carefully preserve separate lists of the names, and shalf. .

not disclose the name of any juror so drawn; but only

thirty-six names shall -be drawn for each week or any

term where a grand jury is not to be drawn. But, should

it appear to the Judge that the above number of jurors —

will be insufficient for that particular term, the Judge

may draw slips containing the names of up to eighty (80)

jurors to serve as grand and petit jurors for the first week,

and up to sixty (60) jurors to serve as petit jurors for any

subsequent week or weeks of the term, such slips contain- °

ing the names of jurors to be; drawn’ in the manner ‘as

hereinabove provided. The slips containing the names so

drawn shall be placed by the Judge in envelopes, a sepa-

rate one for each week, and he shall securely seal and

deliver them to the Clerk of the court, so marked as to

Spee ALT TRE AE MOLALLA OLE ED IOC AE IED

39a

A ppendix C

indicate which contains the names of. the jurors for the .

first and each subsequent week. If in drawing it appears

that any juror drawn has died, temoved or ceased to be

qualified or liable to.serve as a juror, the Judge shall cause

' the shp. containing the name to be destroyed, the name to

be stricken from the jury list, and he shall draw another —

name to Womplete the required number.

§ 1773. Envelopes opened and venire ‘issued.

The clerk shall safely keep the envelopes, without open- .

: ing, until. within fifteen days of the term for which the

jurors were drawn, and shall then, in the presence of, the

sheriff and clerk of the chancery court, open the envelopes

and make a list of the names in each. Each list shall be

. certified. by those .officers to be correct, and on each they

. shall certify whether .the envelope containing the names

appeared to have been opened or disfigured. The several

‘lists of jurors, with the certificates, shall be copied into

the minutes of the first day of court. After making and

* certifying’ the lists, the clerk of the circuit court shall .

forthwith issue and deliver to the sheriff separate. venire

facias forthe jurors for each week, returnable on the

proper day.

| 8 1779. Grand jurors—how drawn. a

-The number of grand jurors shall not be less than

fifteen nor more than twenty, in the diseretion of the court;:

and they shall be drawn from the list of persons in at-—

tendance as jurors, in the following manner: The name

of each juror shall be written on a separate slip of paper,

and the name-from each supervisor’s district Shall be

placed in a separate box, hat or compartment, in open.

: court, and there shall be drawn out, by,a person designated —

sg the judge, the number directed by the court; and: said

40a

Appondio C

names shall ‘ drawn from’ each. om in regular order

until the number designated is drawn, and the j jurors whose -

Names are so drawn, shalt constitute the grand jury, and .

be impaneled and sworn as such. And the court shall poll

the jury to ascertain whether any juror is directly or in-

directly interested in the ‘illicit sale. of vinous, malt or

" spiritous liquors. | Si

- * e e

§ 1792. ; How petit _— ee «

jurors in attendance ‘shall be aah! into. thine petit

juries for the first week -of court if ‘there be a sufficient

number left, and, if not, the court may direct a sufficient

- number for that purpose to be drawn and summoned; but

if there be more than. enough jurors for the three iaclen,

or for two juries if the court shall direct only two to be

impaneled, the excess may be discharged, or they’ may be

Tetained, -in the discretion of the court, to serve as tales-

-—-

men; and, if so retained, -they shall have the privilege of ©

—smembers of the regular panel, of ee from service.

LOANS LEON AY A AI i 24 SIR

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