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However, the judgment before us is not sufficiently clear and explicit to warrant us in affirming, reversing, annulling or modifying it. Ex Parte Redmond, Miss.

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The judge simply stated that he found the defendant in contempt twenty-seven times for refusing to answer questions, and punished him for six acts. We do not know which six. While the proceeding is a summary one and the judge may act upon that which he personally knows is direct contempt, the judgment of conviction should contain material facts known to the court constituting the contempt. In rendering the judgment and making up the record, the causes for such contempt should be separately stated so as to constitute res adjudicata.

Redmond, supra. We are, therefore, of the opinion that this case should be remanded so that the record of the judgment of contempt may be fully developed. This was the procedure in Redmond, supra.


In doing so, we remind the lower court, as it is apparently aware, that any sentence totaling more than six months, even though they be for separate citations, can not be imposed absent a jury trial. Taylor v. Hayes, supra.

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I respectfully dissent to that portion of the court's majority opinion regarding the defendant's assertion of his privilege against self-incrimination. As a witness Hentz was entitled to assert this constitutional right.

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  • The law on this proposition is well established. Article 3, Section 26 of the Mississippi Constitution of provides that "[i]n all criminal prosecutions the accused Haralson v. Additionally, Miss. Code Ann. An accused or witness may waive his constitutional privilege against self-incrimination when he voluntarily takes the stand and testifies on the merits of the case. Autry v. A waiver is made unless the privilege is claimed. Myers, Miss. The privilege also extends to any civil or criminal proceeding, formal or informal, where the answers might incriminate him in future criminal proceedings.

    Lefkowitz v. Turley, U. The record here reveals that Larry Hentz pled guilty after plea bargain, to the murder of James Williamson. Thereafter, Larry Hentz filed a petition for writ of habeas corpus, or in the alternative, a motion to withdraw his guilty plea alleging the state violated the agreement to dismiss a larceny charge against him upon his plea of guilty to murder.

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    • The petition to set aside his guilty plea was pending at the time Hentz testified as a defense witness in the Gullett trial. As a witness Hentz testified to the fact that he was convicted for Williamson's murder, but he invoked the Fifth Amendments to questions addressed to the details of the crime from which he was attempting to withdraw his guilty plea. See Exhibit A attached Appellant argues that he has a constitutional right to protect himself from self-incrimination since he may stand trial for capital murder in the event the court allows him to withdraw his former guilty plea.

      The majority opinion today holds that a constitutional privilege afforded by the Fifth Amendment has no proper application when the witness is not in danger of prosecution after his actual conviction.

      Citing State v. Milam, Mill. I respectfully disagree. The privilege should apply where, as here, the witness is challenging his guilty plea upon which the conviction is based. Hentz's Fifth Amendment rights were valid and outstanding; he could exercise them and refuse to testify based upon this constitutional guarantee. This position has been taken by other courts. In King v. The Court held:. Ultimately the determination of what is incriminating has to rest with the witness, not the judge.

      Mason v. United States, U. The general law on this point is discussed in 81 Am. I submit that Hentz was entitled to assert his privilege against self-incrimination under these facts. The remaining question addresses whether Hentz waived his privilege by answering some questions directed toward the details of the crime. In my view the record does not show any waiver.

      The majority opinion recites some questions of the prosecutor. Attached to this dissenting opinion as Exhibit A are other questions quoted from this record. Clearly a witness may waive his privilege as indicated in Musselwhite v. However, this record does not reflect a waiver. For these reasons, I would reverse and render this conviction and discharge the defendant. The prosecution then questioned Hentz as to his plea of guilty to the murder of Williamson.

      Hentz testified: "It was plead guilty or get the gas chamber. I definitely wasn't guilty. Appellant was then questioned with respect to his previous plea of guilty for the murder of James Williamson as follows:. Upon being asked whether Roger Lynn was "solely responsible for the murder of James Williamson," appellant responded, "I don't really want to get into that. Appellant was then questioned and responded as follows:. Your Notes edit none. Cited By 15 This case has been cited by these opinions: Shields v.

      Hentz v. State, So. 2d –

      State Hentz v. Hargett Moore v. Moore Culpepper v. State Gullett v. State View All Citing Opinions. Authorities 22 This opinion cites: Boykin v.

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      Alabama, U. Please support our work with a donation. Supreme Court of Mississippi. October 15, Edwin Lloyd Pittman, Atty. Ray, Sp. En Banc. The appellant refused to answer the following series of questions: Isn't it true that you told the officers that you asked Lee Harden to do the job for you? Isn't it true that you told Cookie that you could get someone from out-of-state to kill James Williamson?

      Isn't it true that you told the officers that sometime during January or February that you and Cookie had a little disagreement and you didn't discuss the murder for about a month? Isn't it true that on Sunday, the 22nd day of March, that you told the officers that you and Cookie met in the motel room in Grenada? Isn't it true that you told the officers that Cookie said that everything is ready, the insurance was taken care of, everything was ready to go, and Cookie asked you to get in contact with the man that was to commit the murder? Isn't it true that you told the officers that at approximately or that morning Cookie was to go outside and feed the dogs so the killer could sneak into the house? And that the murderer was suppose to come in through the back door and go to the bathroom and he was suppose to hide and wait in the bathroom until Cookie left the house. Is that what you told the officers? Now, did you tell the officers that Lee Harden had a 12 guage [sic] shotgun and a gallon of gas and he was to pour the gasoline, shoot him, pour the gasoline in the room where he was and then go through the house lighting the curtains and then go on out the backdoor.

      Did you tell the officers that? Did you tell the officers that Cookie and Lee didn't get along? Did you tell the officers that Cookie treated Lee like a dog? Did you tell the officers that Roger Lynn was suppose to drive the car?

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