Hartfield v. State

McG-ehee, J., delivered the opinion of the court. From a conviction on a charge of murder and sentence of death, this appeal is prosecuted. The appellant, Jack Hartfield, who was serving a life term in the state penitentiary, and who had been a trusty there for more than ten years, accompanied the Superintendent, as chauffeur of his automobile, on a trip to Jackson on March 22, 1938. On that evening, he met another life term convict, R. B. (Happy) Davis, who had been to Mobile, Alabama, serving as chauffeur of the traveling sergeant and assisting him to recapture an escaped convict. Hartfield and Davis had known two former convicts in the penitentiary, Carl Bailey and Roy Livingston, who were living in Jackson on the occasion in question. Instead of staying in their rooms that night, or within the vicinity thereof, these two trusties took occasion to go wherever they saw fit. Their chance for association being limited, they naturally sought the companionship of their two former acquaintances, Bailey and Livingston. These four men then went to the ‘ ‘ Gold Coast, ’ ’ got some whiskey and drank it, rode about the city awhile and finally arrived at the night club known as “Tom’s Tavern,” where the fatal difficulty occurred. The deceased, Ray Grant, had also visited the “Gold Coast” and one other “night spot” where he had bought and drunk some whiskey before he went to *86 “Tom’s Tavern”. He and Ms associates, Mac Hoover, Misses Billie Downs, Katherine Wright and Bobbie Moore, arrived at the tavern shortly before the defendant Hartfield and his associates did, and it is shown by a witness for the State that the deceased, Ray Grant, took one or more drinks of whiskey after arriving there. The defendant was sitting at a table in a corner of the dance hall, in company with Davis and Livingston, when his other companion, Carl Bailey, became involved in a difficulty provoked by one Dallas Kirsh, a friend of the deceased Ray Grant and his companions. Thereupon, the deceased and Mac Hoover got into the fight against Carl Bailey, and were getting the best of him, in what the witnesses for the state designated as a “free for all” fight, while the defendant and his two companions were still seated at their table. Upon the appellant’s attention being called to the fight, it is claimed that he said: “We can’t afford to have such a commotion as this here, not us”, and went to where the fight was in progress. It does not affirmatively appear that he became the aggressor as against any of the participants in the fight. It is not claimed that he struck the deceased Ray Grant or any other named person who was then engaged in the difficulty. If he struck any blow with his fist, it does not appear from the testimony that he did so as an aggressor. If he struck any blow defensively, and it does not appear that he did so otherwise, then such action would not have been inconsistent with his announced purpose and intention of trying to stop the fight. It does appear however that, almost immediately after he went to where the fight was in progress, he was seen lying on the floor being stamped in the face by the deceased while others had him down; and there is no conflict whatever in any of the testimony to the effect that the defendant’s face was bruised and bleeding immediately before the fatal encounter. Three eye-witnesses for the state so testified; the others did not assert the contrary. Moreover, five additional witnesses for the State, incltiding the officers *87 who arrested the appellant, testified as to having observed shortly after the killing that the appellant’s face had been bruised and was bleeding. Witnesses for the defense say that when they succeeded in stopping the deceased from stamping the appellant in the face and kicking him about the head, it was necessary to assist the appellant to his feet; and that he then staggered against the wall and on out of the dance hall ina“ goofy ’ ’ or half dazed condition. These facts are not disputed by any witness. There is no contention that the appellant’s dazed condition was due to drunkenness. Neither had he displayed any weapon up to that time, nor attempted to do the deceased, E-ay Grant, any harm in so far as the record discloses. On the contrary, it is shown without dispute that when Carl Bailey, a companion of the appellant, struck Dallas Kirsh, a friend of the deceased, on account of the persistency of Kirsh in trying to “break” a dance between Carl Bailey and a Miss Schaffer, contrary to the “no breaking” sign posted in the dance hall, and whereupon the “free for all” fight ensued in which the deceased and one of his companions, Mac Hoover, were participating, the appellant was still seated at the table in a corner of the dance hall; that upon his attention being called to the fight which was started when Dallas Kirsh is alleged to have torn Bailey’s shirt pocket.off and spilled his pencils, cigarettes, etc., on the floor in his attempt to “break” the dance as aforesaid, he arose and made the remark heretofore mentioned to the effect that “We can’t afford to have such a commotion as this here, not us”, and that he went to where the fight was in progress, with the result that he was knocked down by someone, assaulted and beaten by several persons, and stamped by the deceased in the manner heretofore stated. The testimony is in conflict, even so far as the State’s evidence is concerned, as to whether the appellant, after being assisted to his feet by Carl Bailey at the end of the first difficulty, went outside of the building or merely *88 into the bar between tbe dance ball and tbe front door, before be returned to tbe dance ball and inquired as to “who stamped me in tbe face?'” or “I want to know why I was stamped in tbe face ? ’ ’ Tbe witnesses for tbe State with one accord testified that tbe time intervening between tbe stamping of tbe appellant in tbe face by tbe deceased and tbe time of tbe fatal difficulty was between five or ten minutes; whereas, witnesses for tbe appellant placed tbe time at three or four minutes, or in a very short time. At any rate, it is undisputed that in tbe meantime the appellant was engaged in wiping tbe blood from bis face and that bis face was still bleeding when be came back into tbe dance ball. At that time Miss Billie Downs and Miss Katherine Wright, companions of tbe deceased, and witnesses for tbe State, say that they were trying to quiet tbe deceased, Ray Grant, and that be was saying that be could whip him (referring to defendant Hartfield), while there was testimony on behalf of tbe defendant that Grant was saying: “If be has’nt got enough, I will give him some more ’ ’. The result was that tbe defendant advanced on Grant and began cutting him with a knife (which is referred to in tbe briefs as a small pocket-knife), and tbe proof shows that be continued to cut Grant, pursued him out of tbe building, and until be had cut him to death. Tbe proof fails to disclose that tbe appellant drew bis knife until after be bad inquired as to who bad stamped him in tbe face and tbe deceased bad made the statements hereinbefore referred to. It was therefore a question for the jury as to whether the cutting was done pursuant to a previously formed design, or in tbe beat of passion. That is to say, tbe issue of whether or not sufficient time bad elapsed between tbe stamping of tbe appellant and tbe cutting of tbe deceased for passion to subside and for reason to resume its sway was a question of fact for tbe jury. Tbe trial court assumed that tbe jury bad tbe authority to decide the issue of manslaughter or murder and to return a verdict according to its finding- in that belief, when tbe instruc *89 tions to the jury on behalf of the appellant on the question of manslaughter were given. Notwithstanding that this was the right and province of the jury, we find that the prosecuting attorney, in his argument to the jury, made the following statement: “Now gentlemen, we come to the question of punishment. You should not bring in a verdict of manslaughter or a life sentence. What is the use of sending a man to the penitentiary for life, because he is already there under a life sentence, and anything less than the death penalty would not be any punishment in this case.” Upon objections being made by the appellant’s counsel, coupled with a request that a mistrial be entered, the trial court, without any desire or intention to prejudice the rights of the appellant, made what he erroneously conceived to be a proper and legitimate comment, in the hearing of the jury, as follows: “In view of the fact that the jurors have two matters to decide, one the guilt or innocence of the defendant and the other the nature of the punishment, in case of guilt, I do not think the argument is outside the proprieties”. Objections were thereupon made to both the argument of the attorney and the comment of the court, which were embodied in a bill of exceptions duly signed by the court, containing the two statements hereinbefore quoted, but the prosecuting attorney was allowed to pursue the same line of argument thus objected to. It will be observed from the language used by the prosecuting attorney, that his statement was not limited merely to the punishment in the event the jury should find the defendant guilty of murder. It advised the jury that neither a manslaughter verdict, nor a life sentence, should be returned. His statement ^presupposed that the jury might believe the defendant only guilty of manslaughter, and then cautioned the jurors in effect that even though they should so believe, it would be useless to return that verdict, or any other verdict less than the death penalty. To advise the jury, with the approval of the court as being within the proprieties, that a verdict of manslaughter or a life *90 sentence would be equivalent to no punishment at all could have no other possible effect than to inform the jurors that it was immaterial whether they believed the defendant guilty of manslaughter or murder, since the proper and only punishment in either event was asserted to be the death penalty. We do not mean to say that a prosecuting attorney is not entitled to appeal for the death penalty in the event of a conviction of murder, when such argument is based on the particular facts of the instant case, but we are of the opinion that it was improper that such argument be based upon the fact that the appellant was then serving a life sentence in the state pentitentiary, oí to contend that a verdict of manslaughter or a life sentence would not be any punishment because of that fact. To say that a man should be punished only by death, even though the jury should honestly believe that under the evidence a verdict of manslaughter should be returned, and notwithstanding the fact that the law of the State fixes the maximum penalty for manslaughter at twenty years in prison, is equivalent to asking the jury to disregard the legal rights of the accused which entitled him to have the grade of the offense determined by the facts alone of the particular crime for which he was then on trial, without regard to whether or not he was then serving a life sentence. That question had nothing to do with the issue of whether the verdict should be manslaughter or murder. In the case of Windham v. State, 91 Miss. 845, 45 So. 861, 862, the defendant was on trial for murder and the prosecuting attorney urged in his argument to the jury that the judge could, in his discretion, punish the defendant if convicted of manslaughter either by a fine and imprisonment in the county jail, or by a term of years in the penitentiary, and this Court held: “In a case like this such language was wholly inadmissible. It was a very plain bid for a conviction of manslaughter, under the indictment for murder, and the jury accordingly so found”. In the case at bar, the argument was a plain bid *91 for the death penalty, without regard to whether the defendant was guilty of manslaughter instead of murder. It was likewise held to be reversible error on a charge of murder in the case of Minor v. State, 101 Miss. 107, 57 So. 548, for the prosecuting attorney to say to the jury, “If you bring in a verdict of manslaughter, the court does not have to sentence [the defendant] to the penitentiary, but can find her or send her to the county farm”. Moreover, it has even been held improper for a defendant’s counsel to argue on a murder trial that “We do not want the jury to bring in any manslaughter verdict; that the district attorney had asked for a manslaughter, and the state would be tickled to death to secure a verdict of manslaughter, and send this man to the pentitentiary for a term of years”. Springer v. State, 129 Miss. 589, 92 So. 633, 634. If it be true', as this Court has held in the Windham and Minor cases, supra, that it is reversible error to tell a jury what punishment can be imposed by the court in the event of a conviction of manslaughter, then most assuredly it should constitute such error for the jury to be told that there is no use for it to return a manslaughter verdict, or for a life sentence, on the asserted ground that in such event the court could not punish the defendant at all. If it is prejudicial to inform the jury as to the extent of the punishment fixed by law in a case where a manslaughter conviction is permissible, then certainly it is prejudicial to tell the jury, contrary to the law, that such a conviction would carry no punishment at all in the instant case. Under the general rule, to which there are certain well recognized exceptions, it would not have been competent for the State to prove that the appellant was serving a life sentence in the penitentiary. Wharton’s Criminal Evidence, Fo. 1, section 337, states the general rule to be that: “When a defendant has voluntarily put his character in issue, it is neither competent nor relevant to the issue to admit in rebuttal, on the part of the prosecution, evidence of independent facts, or acts of misconduct. *92 The rebutting testimony should relate to bad reputation.” Also, Wigmore on Evidence, Vol. 1, page 269; Bird v. United States, 180 U. S, 356, 21 S. Ct. 403, 45 L. Ed. 570; Kearney v. State, 68 Miss. 233, 8 So. 292; and Neal v. State, 101 Miss. 122, 57 So. 419. If the appellant, Hartfield, had offered himself as a witness, which he did not do, then proof of the fact that he had been previously convicted of a crime (but not the extent of the punishment imposed) would, under section 1532 of the Code of 1930, have been competent to affect his credibility as a witness. The defense had succeeded in keeping from the jury the wholly irrelevant, but highly prejudicial, fact that the defendant was serving a life sentence until one of the prosecuting attorneys succeeded in getting’ the fact to the jury in his own statement embodied in a question to the witness, Mr. O. G-. Tann, who had known the defendant for seven years as a “trusty” in the state penitentiary, as follows: “Q;. You never knew him at all, except as a convict in the state penitentiary, who was committed there for life, did you? A. No, sir. Q. That is the only way you ever knew him, the only capacity you ever knew him in 1 A. That’s all. ’ ’ It will thus be seen that the answer of the witness would have been the same if there had been omitted from the question the words “who was committed there for life”. He was being examined as to the extent of his acquaintance with the defendant, and the extent of the time that he has yet to serve as a prisoner had nothing to do with the inquiry. The argument to the jury for the death penalty approved by the court as being within the proprieties, and based on the fact that the accused was a life term prisoner was not a proper argument, for the reason that the jury was entitled to determine both the grade of the offense and the extent of the punishment on the facts of the case then being tried. Martin v. State, 63 Miss. 505, 56 Am. Rep. 813; Long v. State, 81 Miss. 448, 33 So. 224; Evans v. State, 98 Miss. 697, 54 So. 154, Ann. Cas. 1913B, 257; Newman Lbr. Company v. Norris, 130 *93 Miss. 751, 94 So. 881; Bufkin v. State, 134 Miss. 116, 98 So. 455; Smith v. State, 141 Miss. 772, 105 So. 758; Roney v. State, 153 Miss. 290, 120 So. 445. In view of the fact that some of the witnesses stated that “Happy” Davis pointed ont the deceased to the appellant, Hartfield, after the first difficulty, and others testified that this was done by Carl Bailey, we are unable to say that it was error for the grand jury to indict them as being present aiding, abetting and encouraging the commission of the fatal assault. There was also proof that the witness Mac Hoover was prevented by someone from stopping the second fight in which the cutting occurred. We are not advised as to what other information the grand jury may have had as a basis for such indictments, since there were witnesses present at the scene of the crime who did not testify at the trial, and who may have testified before the grand jury. Therefore to hold that the indictment of these two witnesses of the accused was not error is not in conflict with the cases of Turner v. State, 168 Miss. 452, 151 So. 721; and Smith v. State, Miss., 183 So. 699. Other errors are assigned, but we deem it unnecessary to discuss them for the reason that the cause must be reversed and remanded, and these alleged errors would not likely re-occur upon a new trial of the case. Reversed and remanded. Griffith, J., disqualified, took no part in the cause or decision.