Mississippi Supreme Court, 1944

Martin v. State

Mississippi Supreme Court · Decided October 9, 1944 · Smith, Alexander

19 So. 2d 488; 197 Miss. 96; 1944 Miss. LEXIS 277 (Southern Reporter, Second Series)

Counsel

B.B. Allen, of Indianola, and A.B. Galloway, of Memphis, Tenn., for appellant. The indictment is fatally defective in that it undertakes to charge both a misdemeanor and a felony, and that it is couched in language vague and indefinite, confusing by its prolixity, and does not inform the defendant of the nature and cause of the accusation against him. Nor does it charge any crime; therefore the demurrer, which we interposed to the indictment, should have been sustained. Laura v. State, 26 Miss. 174 ; Williams v. State, 178 Miss. 899 , 174 So. 47 ; Holley v. State, 175 Miss. 347 ,, 7 So. 275; Code of 1930, Secs. 1210, 1289, 1430; Constitution of 1890, Sec. 26; United States Constitution, 6th Amendments; 12 C.J. 542; 16 C.J. 351. The court committed a reversible error in overruling our verified motion for continuance and forcing us to trial before a jury laboring under the misapprehension that the defendant had attempted, through another, to tamper with the first jury impanelled to try the case, and on account of which said third person was cited and punished for contempt of court. The defendant, therefore, was not given a fair and impartial trial, in violation of his rights under the law and the Constitution. We further submit that in a case of this kind in view of the uncertain allegations in the indictment, we were confronted with an occasion whereby, in fairness to the defendant, the state should have been required to furnish us with a list of the witnesses by whom it proposed to make out its case; and that by reason of the overruling of a motion to that effect by the court, the defendant was denied a most valuable right and a reversible error was committed; and we submit further that when the state voluntarily gave us a list of its witnesses, it was limited to that list, and the use of Miss Freine, whose name was not on the list, was error. It was reversible error on the part of the court in permitting the state witnesses to testify from notes and memorandum made up by them two days before this trial, which was from thirteen to eighteen months after the happening of the events about which they were then testifying. Cooper v. State, 59 Miss. 267 ; Hoye v. Newton Lumber Mfg. Co., 99 Miss. 229 , 54 So. 839; Potts v. Peters,, 7 S.Ct. 118; Cincinnati Traction Co. v. Hackett, 28 Ohio 566; 70 C.J. 590-591. The state having wholly failed to make out its case by competent proof, we were entitled to our motion to exclude, and to our request for a directed verdict. Street v. State, 43 Miss. 1 ; Simmons v. State, 160 Miss. 582 , 135 So. 196 ; Overall v. State, 128 Miss. 59 , 90 So. 484; Carter v. State, 120 Miss. 294 , 82 So. 146; Rich v. State, 124 Miss. 272 , 86 So. 770; State v. Haney, 96 Miss. 792 , 51 So. 913; State v. Collins, 186 Miss. 448 , 191 So. 126 ; Bowler v. State, 41 Miss. 570 ; Hales v. State, 186 Miss. 413 , 191 So. 273 ; Pickens v. State, 129 Miss. 191 , 91 So. 906; Martin v. State, 63 Miss. 505 ; Garrard v. State, 50 Miss. 147 ; Osborne v. State, 99 Miss. 410 , 55 So. 52; Pickett v. State, 164 Miss. 142 , 144 So. 552; Cofer v. State, 158 Miss. 493 , 130 So. 511 ; Stribling v. State, 124 Miss. 141 , 86 So. 897; Pulpus v. State, 82 Miss. 548 , 34 So. 2; Brown v. State, 30 Miss. 656 , 670; Alford v. State, 193 Miss. 153 , 8 So.2d 508 ; Harper v. State, 83 Miss. 402 , 35 So. 572; Lynes v. State, 36 Miss. 617 ; 12 C.J. 544, 548, 552, 554; 16 C.J. 543; 49 C.J. 30, 804. The instructions granted to the state did not state the law and were wrongfully granted; they were in direct conflict with the instructions granted the defendant, and the jury was left without guide by which they could arrive at a proper consideration of the case. Johnson v. Columbus G.R. Co., 192 Miss. 627 , 7 So.2d 517 ; McNeill v. Bay Springs Bank, 100 Miss. 271 , 56 So. 333; Alabama V.R. Co. v. Cox, 106 Miss. 33 , 63 So. 334; Jefferson Standard Life Ins. Co. v. Jefcoats, 164 Miss. 659 , 143 So. 842 ; Columbus G.R. Co. v. Phillips, 160 Miss. 390 , 133 So. 123 ; Pickens v. State, supra; Staten v. State, 30 Miss. 619 . The action of the court in limiting the argument to one hour to the side was reversible error. With two attorneys having to divide that period, they would not have time to discuss the numerous and complicated issues submitted to the jury growing out of the evidence that took practically a week to try, — in which numerous witnesses and documentary evidence were involved, — nor discuss and analyze their respective relationship and importance in this case. We say, therefore, that the defendant was denied his constitutional rights to be heard by himself or counsel, and that the action of the court in limiting the argument was an abuse of his discretion and constituted reversible error. Wingo v. State, 62 Miss. 311 . The improper argument and conduct on the part of the special prosecuting attorney for the state was so reprehensible as to deny to the defendant a fair and impartial trial; and the incompetent evidence, together with the improper conduct and argument of said counsel, cast upon the defendant a burden which he was unable to meet, and denied to him a fair and impartial trial of the case. Martin v. State, supra; Sanders v. State, 73 Miss. 444 , 18 So. 541; Reddick v. State, 72 Miss. 1008 , 16 So. 490; Smith v. State, 87 Miss. 627 , 40 So. 229; Drane v. State, 92 Miss. 180 , 45 So. 149; Snowden v. Collins, 112 Miss. 801 , 73 So. 793; Winchester v. State, 163 Miss. 462 , 142 So. 454 ; Guest v. State, 158 Miss. 588 , 130 So. 908 ; Gurley v. State, 101 Miss. 190 , 57 So. 565; Harris v. State, 96 Miss. 379 , 50 So. 626; Smith v. State, 87 Miss. 627 , 40 So. 229; Church v. State, 182 Miss. 802 , 183 So. 525 ; Code of 1930, Sec. 1530; 16 C.J. 830, 886, 902. Our motion for a new trial should have been granted, not only on account of the judgment being against the overwhelming weight of evidence, but because the state had wholly failed to make out a case against the appellant, and for the further reason of the improper, vindicative, prejudicial argument and conduct on behalf of said special prosecuting attorney who closed the argument for the state when the defendant could not reply thereto. Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee. The appellant's first assignment of error is that the court erred in overruling the demurrer filed to the indictment. The appellant contends that the indictment is vague and indefinite; that it does not charge an offense, and that it undertakes to charge both a misdemeanor and a felony. The indictment appears in the record and was drawn under Section 2056, Code of 1942, sub-sections (4) and (7). A reading of the indictment shows that it charges a conspiracy and clearly comes within sub-section (4) of the statute. Isaacs et al. v. State, 48 Miss. 234 ; State v. Russell et al., 185 Miss. 13 , 187 So. 540 ; King et al. v. State, 123 Miss. 532 , 86 So. 339; 2 Wharton's Criminal Law (12 Ed.), Sec. 1615. A motion for a continuance is largely in the discretion of the trial judge and his holding will not be interfered with in the absence of an abuse of this discretion. Allgood v. State, 173 Miss. 27 , 161 So. 756 . In absence of a statute so requiring, the state is not bound to furnish to a defendant the names of the state's witnesses. McDaniel v. State, 191 Miss. 854 , 4 So.2d 355 . For the purpose of refreshing his collection a witness may be permitted to read or consult writings or data made by himself, especially where he is testifying as to many details involving dates, numbers, weights, or quantities and arising in transactions extending through several months. J.H. Leavenworth Son, Inc., v. Hunter, 150 Miss. 245 , 116 So. 593 ; Potts v. McPeters, 140 Miss. 97 , 103 So. 202 ; 70 C.J. 583, Sec. 749. Counsel for appellant contends that the court erred in overruling his motion to exclude the evidence and his request for directed verdict of not guilty. The jury was fully warranted in finding a conspiracy entered into as charged and set out in the indictment. It is well settled that a conspiracy may be proved, like other controverted facts, by the acts of the parties or by circumstances, as well as their agreement. Street v. State, 43 Miss. 1 ; Osborne v. State, 99 Miss. 410 , 55 So. 52; Pickett v. State, 139 Miss. 529 , 104 So. 358 ; Byrd v. State, 165 Miss. 30 , 143 So. 852 ; King et al. v. State, 123 Miss. 532 , 86 So. 339; 12 C.J. 637; Underhill's Criminal Evidence (4 Ed.), Secs. 771, 773, 774, 776. Counsel for appellant contends that the instructions granted the state are erroneous. The first instruction obtained by the state clearly defines the offense with which the appellant was charged a conspiracy. The state in obtaining other instructions assumed a greater burden than was required for the reason that these instructions dealt with the crime of false pretenses and appear to be correctly drawn insofar as this crime is concerned. On a trial of indictment charging the defendants with a conspiracy to fraudulently obtain the property of another, it was not necessary for a conviction that the state should prove that the property had been actually obtained, but that the offense was completed upon the conspiracy being formed for the purpose alleged. Isaacs v. State, supra; King et al. v. State, supra. Counsel also assigns as error that fact that the court limited the argument to one hour to the side. This is a matter that comes within the discretion of the trial court, and before this court will intervene, it must be shown that the appellant was prejudiced by the ruling of the court. McLeod v. State, 130 Miss. 83 , 92 So. 828. Counsel for appellant assigns as error the closing argument of special counsel for the state to which he took a special bill of exceptions. The statement in the special bill of exceptions, which it is argued was a comment upon the appellant's failure to testify in the court below, is as follows: "It is the facts and you can't get around the facts," and "The testimony is not disputed," to which the defendant objected as being a reference to the failure of the defendant to testify. The argument or remarks of the attorney do not constitute reversible error. Hanna v. State, 168 Miss. 352 , 151 So. 370 ; Comings v. State, 163 Miss. 442 , 142 So. 19 .

Dissenting Opinion

DisseNtiNg Opinion.

Alexander, J.,

delivered a dissenting opinion.

The instructions given for the defendant sufficiently charged them as to their duty in weighing the evidence and the bases for and measure of their belief of guilt. Such cases as these are almost necessarily provable circumstantially,' and I am of the opinion that the evidence was not only sufficient to establish strong suspicion but enough to raise a jury issue of a fraudulent connivance.

I do not dissent from the views expressed as to income received from properties other than those here involved, and agree that the point is not reserved for us in the absence of objection.

Regarding the use of memoranda to refresh the memory of the witnesses, Mr. and Mrs. Chandler, I cannot assent to the adoption of a universal rule excluding those not made contemporaneously with the event. As a general rule its *107 soundness is clear. Yet here the memoranda were prepared in advance of the trial and related chiefly to the names, dates, and amounts, the exact details of which were not important. It is not difficult to imagine an occasion where such details, inquired of upon the witness stand, would be forthcoming only after repeated delays while the witness searched his memory for exact facts. It is assumed that in the end the data furnishe'd from such fnental exploration would be pieced out from the same memory which was consulted in the preparation of the memorandum.

The evils potential in this practice are evident, but in the instant case the susceptibility to abuse is outweighed by its improbability and by the considerations above mentioned. Regardless of the rule however, it appears that the extended testimony of Mrs. Chandler was completed without objection and the testimony of Mr. Chandler to which objection was later made was but corroborative of what had gone before. The memoranda supplied details which were subordinate to. incriminatory facts as to which independent recollection alone was available. The fact of some collaboration between the witnesses would be disturbing but for the considerations just mentioned. Jn my opinion an affirmance of the case is warranted.

I am instructed by Judge Roberts to state that he concurs in the foregoing views.

Opinion of the Court

*103 Smith, C. J.,

delivered the opinion of the court.

This is an appeal from a conviction of conspiracy, and is a companion case to Ohlman v. State (Miss.), 16 So. (2d) 372. The indictment alleges, with probably unnecessary detail and prolixity, that the appellant, F. A. Ohl-man and B. D. Johnson, entered into a conspiracy to obtain property from Mr. and Mrs. Chandler by false pretenses; the scheme agreed on being, in substance, that Martin and Ohlman were to obtain property from the Chandlers in exchange for oil royalty acreage in Holmes County, Mississippi, by falsely representing to them that there was a brisk market for all the oil royalty acreage in the vicinity of that offered the Chandlers, and that none of it in that vicinity had sold for less than $100 an acre; and that Johnson would aid Martin and Ohlman in so doing by falsely promising the Chandlers to purchase oil royalty acreage acquired by them at a price in excess of that which Martin and Ohlman would offer to sell such acreage to the Chandlers. The indictment then, under the caption of “overt acts,” álleges that the conspirators made to the Chandlers the fraudulent representations set forth in the body of the indictment, and because thereof the Chandlers accepted oil royalty acreage offered them by Martin and Ohlman in exchange for property owned by them. A demurrer chállenged this indictment on several grounds, two of which are (1) that the conspiracy became merged in the commission of the crime contemplated by the agreement, and therefore the *104 parties thereto could not be punished for a conspiracy, but only for the completed crime; and (2) that if mistaken in this, the indictment attempted to charge a misdemeanor, i. e., a conspiracy, and a felony, i. e., obtaining goods by means of false pretenses, in the same count.

A conspiracy to commit a crime is a complete offense, separate and distinct from, and does not become merged in, the commission of the crime contemplated by the conspiracy. Neither at. common law nor under section 2056 of 2 Mississippi Code 1942, is an overt act.pursuant to a conspiracy necessary for the completion of the crime; the allegation of such an act in this indictment was unnecessary, but its allegation did not convert the indictment into one for the commission of the crime contemplated by the conspiracy, although the overt act charged is the commission of the crime contemplated, by it. All of these propositions are covered by King v. State, 123 Miss. 532, 86 So. 339.

The evidence as to the existence of this conspiracy was wholly circumstantial. The appellant offered no evidence, and according to that introduced by the state, Ohl-man on more than-one occasion obtained property from the Chandlers in exchange for oil royalty acreage in Holmes county by means of false representations that the market for such property was active in the vicinity where the property offered by Ohlman was situated, and that no acreage in that vicinity had sold for less than $100 per acre; and that Johnson promised the Chandlers to purchase oil royalty acreage from them, as alleged in the indictment. Martin also obtained property from the Chandlers in exchange for oil royalty acreage; but he is not shown to have made any representations to them, such as the alleged conspiracy contemplated. He had an interest in the oil royalty acreage exchanged by Ohlman with the Chandlers, and knew that Ohlman was making these exchanges, but there was no direct evidence that he knew that Ohlman had, or was to. make these representations.

*105 THie court below refused a request by tbe appellant for a directed verdict of not guilty, and also overruled a motion by Mm to set aside tbe verdict, on tbe ground that it was against tbe great weight of tbe evidence. Tbe court is equally divided as to whether tbe appellant’s request for a directed verdict should have been granted; but a majority of its members are of tbe opinion that tbe verdict returned by tbe jury is so clearly against tbe great weight of tbe evidence that tbe appellant’s request that it be set aside on that ground should have been granted. Consequently, tbe judgment of tbe court below must be reversed and tbe cause remanded for a new trial.

Quite a number of other rulings of tbe court are assigned for error, but we deem it necessary for tbe guidance of tbe court below on another trial to note only those hereinafter specifically referred to.

(1) Evidence was admitted of dealings between the appellant and tbe Chandlers with reference to oil royalty acreage in places other than Holmes county, Mississippi, and also to tbe effect that tbe Chandlers bad not received any revenue from tbe oil acreage purchased by them from tbe appellant and Chiman. This evidence was incompetent, as it has no bearing on tbe conspiracy charged in tbe indictment; and bad tbe appellant’s objections thereto been timely made tbe court below would probably have sustained them.

(2) Tbe evidence covered quite a number of transactions between tbe Chandlers and tbe appellant and Ohl-man. Both of tbe Chandlers testified at length; and each of them testified from typewritten notes of what occurred between them and tbe alleged conspirators, made by them a day or two before tbe trial, and about a year and a half after tbe occurrence of tbe events covered by them. These witnesses were without tbe right to testify from these notes, and tbe court below would probably have so held bad the appellant’s objections thereto been timely made. One indispensable requirement for tbe use of such a memorandum by a witness when testifying is that tbe memo *106 randum must have been made contemporaneously with the transactions therein set forth, or to which reference is therein made. Alabama & V. Ry. Co. v. Coleman, 78 Miss. 182, 28 So. 828; 70 C. J. 590.

The typewritten notes which these witnesses used were not prepared by the witnesses using them alone, but in collaboration with the other. This fact, however, we have left here out of view, and express no opinion ■ on what effect such a fact alone would have on the right of a.witness to use a memorandum to refresh his recollection.

The matters complained of by the appellant in his special bill of exceptions may not occur on another trial, and the law of conspiracy is so well settled that the court below will require no assistance from ns in passing on the instructions to be given the jury at the next trial hereof.

Reversed and remanded.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.