Opinion
No. 33265.
December 5, 1938.
1. HOMICIDE.
In prosecution for murder allegedly committed while deceased was undertaking to prevent defendant's killing a third party, defended on ground of self-defense against the third party, evidence held to authorize conviction.
2. CRIMINAL LAW.
In murder prosecution, where defendant had testified that he was not the person who cut the deceased, county jailer's testimony that defendant asked him on the morning after the killing "how the boy was getting along that he cut last night" was admissible in rebuttal.
3. CRIMINAL LAW.
In murder prosecution, admission in rebuttal of county jailer's testimony that defendant had asked him on the morning after the killing "how the boy was getting along that he cut last night" was not reversible error, where defendant was not denied opportunity to offer further testimony in surrebuttal.
4. HOMICIDE.
In murder prosecution, that district attorney made motion in jury's presence for the court to repair to the scene of the killing for a view of the premises was not ground for reversal, since defendant could have requested that the jury be retired before objecting.
5. HOMICIDE.
In prosecution for murder allegedly committed while deceased was attempting to prevent defendant from killing a third party, exclusion of evidence that defendant was suffering from lung trouble and hence was not on an equal footing with third party in the fight without resorting to deadly weapon was not error.
6. HOMICIDE.
In murder prosecution, defended on ground of self-defense against a third party, evidence that some one shot at defendant after the fatal cutting and after defendant had left the scene of the cutting was immaterial.
7. HOMICIDE.
In prosecution for murder allegedly committed while deceased was trying to prevent defendant from killing a third party, exclusion of evidence concerning prior difficulty with the third party and others in which deceased was not involved was not error, where evidence authorized finding that defendant did not accidentally cut and kill deceased while acting in necessary self-defense.
APPEAL from the circuit court of Jones county; HON.W.J. PACK, Judge.
Charles C. Evans and Paul G. Swartzfager, both of Laurel, for appellant.
The court erred in sustaining the State's objections to questions propounded by appellant's attorneys to the state's witness Joe Potter.
It is our contention that the testimony sought by the questions and answers and the unanswered questions were a part of the res gestae and for that reason should have gone to the jury free from any objection on the part of the district attorney or from any adverse comment on the part of the court. The testimony here objected to is indeed a part of the res gestae. It clearly indicated the instigators of the difficulty which resulted in the death of Essie Lee Tanner, where it began, when it began, how it began, who the parties involved were, and who the aggressors were.
Mayes v. State, 64 Miss. 329, 1 So. 733; McCormick v. State, 132 So. 757; Carr v. State, 166 So. 363; Dixon v. State, 154 So. 290; Simon v. Dixie Greyhound Lines, Inc., 176 So. 160.
The evidence of the Shoemake witness offered substantiates the contention of appellant that he was ganged by not only the state witnesses Joe Potter, Sallie Watts, Emmet Shine, but by Frank Bell as well.
The testimony of the witness Shoemake is competent and should have gone to the jury as part of the res gestae.
Mayes v. State, 64 Miss. 329, 1 So. 733; McCormick v. State, 132 So. 757; Carr v. State, 166 So. 363; Dixon v. State, 154 So. 290; Simon v. Dixie Greyhound Lines, Inc., 176 So. 160.
In the presence of the jury the district attorney asked the court for permission to take the jury to the place and the scene of the killing for the purpose of viewing and inspecting the place and surroundings. To which motion comment was made by the court, and objections of appellant sustained.
It is true that the trial judge overruled the district attorney's motion for a view and inspection of the place where Tanner was killed but the damage had been done. Appellant's right to a free and impartial trial by unbiased and unprejudiced jurors had been violated.
Armstrong v. State, 174 So. 892; National Box Co. v. Bradley, 154 So. 724; A. P. Tea Co. v. Davis, 171 So. 55.
The court should have excluded from the jury the testimony of Jeff Hilbun, the county jailer.
This testimony was given by the state in rebuttal, for the purpose as stated by the district attorney impeaching the testimony of the appellant. It was not only given by the state for the purpose of impeachment, but for the purpose of a confession of the crime charged against the appellant as well. This testimony was highly prejudicial to appellant and should have been excluded from the jury for at least three reasons: 1. If competent and admissible it should have been given in chief instead of in rebuttal; 2. If given for the purpose of impeachment no predicate was laid; 3. If given as a confession, and we are of the opinion this is the primary motive that prompted the district attorney in offering it, it should have been excluded for reason that no showing was made by the state to prove that it was freely and voluntarily made.
Church v. State, 176 So. 162; Harrison v. State, 168 Miss. 699, 152 So. 494; Bonelli v. Brown, 70 Miss. 142, 11 So. 791; Roney v. State, 167 Miss. 827, 150 So. 774; Hathorn v. State, 102 So. 771; Brettinum v. State, 167 So. 619; Simon v. State, 37 Miss. 288; Ellis v. State, 65 Miss. 44, 3 So. 188; Brown v. State, 167 So. 82; Fletcher v. State, 131 So. 251.
Appellant's motion for a directed verdict upon the charge of murder should have been sustained for the reason that the indictment charges the appellant with the willful, unlawful, felonious, and of his malice aforethought killing of Essie Lee Tanner, a human being, etc. None of the elements necessary to constitute murder were shown by the testimony of the state.
Appellant, under all of the facts in the case if he did kill Essie Lee Tanner, was certainly justifiable and excusable under paragraph (b) of Section 989 of the Code of 1930. It might be contended that appellant cannot claim justification and excuse under this section of the code for the reason that he was using a dangerous weapon. In the case of Hill v. State, 97 Miss. 304, 49 So. 146, this court held: "Defendant held justified in using a deadly weapon to protect himself. Where deceased was a much larger and stronger man, and defendant was liable to receive great bodily injury at his hands, although deceased was unarmed."
Hill v. State, 97 Miss. 304, 49 So. 145; Waldrup v. State, 98 Miss. 567, 54 So. 66.
The facts which were not permitted to go to the jury clearly show that appellant was a sick man and in a critical condition at the time of the killing and at the time of the trial. The facts of the record show that Joe Potter, with whom appellant was fighting at the time of the killing was a strong, able bodied man, and in addition thereto according to appellant's testimony, which was corroborated by others, the said Joe Potter was armed with a dangerous weapon, to-wit, a knife, and appellant had a right to apprehend great harm and eminent danger to himself at the hands of the said Joe Potter.
If it should be said this was not a case for a directed verdict, yet it is our contention under all the facts and inferences to be drawn therefrom, and the circumstances surrounding this entire unfortunate affair, that the verdict of the jury is contrary to the weight of the testimony and for this reason should be reversed and judgment entered here for appellant.
Heflin v. State, 178 So. 594.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
It is only when previous events which lead up to a difficulty are necessary to be shown to properly and correctly understand the main transaction itself, that such anterior events become a part of the res gestae and are admissible in evidence as such.
Carr v. State, 175 Miss. 102, 166 So. 363; Carter v. State, 167 Miss. 331, 145 So. 739; McCoy v. State, 91 Miss. 257, 44 So. 814; Rich v. State, 124 Miss. 272, 86 So. 77.
In the presence of the jury the district attorney moved the court to repair to the scene of the killing and there view the premises. The court overruled the motion and thereupon appellant moved for a mistrial. This latter motion was overruled. We submit that there was no error of which appellant can complain with respect to the actions of the court on these two motions.
Armstrong v. State, 174 So. 892.
In rebuttal the state introduced Jeff Hilbun, Jones county jailer, who testified over defendant's objection, that on the morning after the stabbing and while appellant was in jail, the appellant asked him "How the boy was getting along that he cut last night." The court's overruling of the objection to this testimony is assigned as error for the reasons that: first, it was not proper rebuttal; second, that no predicate was laid for the impeachment of the defendant; and third, that it was in the nature of a confession and was not qualified as required by law before being given to the jury.
This testimony does not constitute a confession. In his testimony the defendant denied that he had stabbed Tanner and it is always permissible to show that a witness has made statements out of court inconsistent with and contradictory to his testimony in court.
As to it being improper rebuttal, we submit that there is nothing of which appellant could complain in any event.
Roney v. State, 167 Miss. 827; Clark v. State, 180 So. 602.
The appellant's motion for a directed verdict was properly overruled. The state's case showed that Tanner was killed as the result of an unprovoked attack upon him by appellant and immediately thereafter the appellant stated that he would kill "every God-damn ____ ____" present. Under the state's case the appellant was the aggressor in the difficulty with Potter and certainly, if he killed Tanner as an incident of his murderous assault upon Potter, he cannot now be heard to say that he did not intend to kill Tanner. This is a case where the act speaks for itself.
Ross v. State, 131 So. 367; Dickson v. State, 74 Miss. 271, 20 So. 829; Wood v. State, 64 Miss. 761, 2 So. 247.
In this case the evidence is conflicting. The witnesses for the state have all shown an unprovoked assault upon Potter by appellant with a deadly weapon. Appellant was the aggressor in this difficulty. Tanner was killed while undertaking to stop this assault. He was killed by appellant with a knife which he had in his hands at the time he made the assault on Potter. All of those who actually saw the stabbing testified unqualifiedly that it was appellant who did it. The defendant says that he did not stab Tanner, but that if he did, he did it in self defense. Since he does not know whether he stabbed Tanner or not, his defense of self defense must necessarily be dependent upon his justification in the difficulty with Potter. In this respect the evidence is all against him and the jury, having such a wide discretion in determining the quality of an act, we submit that the evidence fully warrants the verdict which the jury returned and that appellant is not entitled to a new trial on the facts of this case.
Charley Hunter was tried and convicted of the murder of Essie Lee Tanner in Jones County, and sentenced to serve a life term in the state penitentiary.
The case, as made by the testimony of five or six witnesses for the state, discloses that the appellant stabbed Tanner through the heart with a knife on last Xmas night in a restaurant and cold drink establishment, known as the Black Cat Inn, in the City of Laurel, and at a time when Tanner was undertaking to prevent him from killing one Joe Potter upon whom the appellant was then making a murderous assault with a knife as the aggressor in the difficulty. Joe Potter was talking to a couple of negro women who were eating at one of the tables of the Inn when the appellant and several others were present. Seeing Potter looking at him, the appellant asked "What the God damn hell You looking at me for?" and then drawing his knife he stated to Potter, "You act, God damn it, like you don't like it," and they then commenced fighting. Thereupon, one "Big Tal" Porter separated the appellant and Potter by pushing one of them in one direction and the other in the opposite direction. Then the appellant undertook to get to Potter again with the knife when Tanner, came up behind him and said "I wouldn't do that" and urged the appellant to stop. When Tanner had advanced to where he was nearly even with the appellant, some of the state's witnesses say that appellant turned on Tanner and stabbed him with the knife while others say he struck backwards and stabbed him while he was still advancing toward Joe Potter.
It was contended on behalf of the appellant that Joe Potter and others had knives, and that he did not cut Tanner, but that if he did cut him it was done while acting in his necessary self-defense to prevent Joe Potter from killing him. On this conflict in the testimony, the case was properly submitted to the jury, and we think the jury was amply justified in convicting him.
We have carefully examined the action of the trial court in the giving and in refusing instructions, and we find no error was committed in that regard.
Other errors are assigned: (1) The refusal of the trial court to permit the appellant to prove that he, Joe Potter and others had a difficulty on the outside of the Black Cat Inn prior to the fight on the inside of the building, but in which prior difficulty it is not contended that Tanner was in anywise involved; (2) that the appellant was not permitted to show that some third party shot at him subsequent to the fatal cutting of Tanner, and while they were undertaking to get Tanner to the hospital; (3) that the appellant was not permitted to show that he was suffering from some sort of lung trouble and was not therefore on an equal footing with Joe Potter in the fight, without resorting to the use of a deadly weapon; (4) that the district attorney presented a motion in the presence of the jury for the court to repair to the scene of the killing and there view the premises, and that the court thereupon overruled the motion of the appellant for a mistrial; (5) and that the state introduced the county jailer in rebuttal to show that the appellant asked him on the morning after the killing "how the boy was getting along that he (the appellant) cut last night."
To dispose of these alleged errors in their reverse order, it is sufficient to state that the appellant as witness in his own behalf had denied that he was the person who cut the deceased. The testimony was therefore proper in rebuttal. Moreover, even if it were true that this testimony should have been offered in chief, it was not reversible error to permit the state to introduce the same in rebuttal, where the defendant was not denied the opportunity to offer further testimony in surrebuttal. Roney v. State, 167 Miss. 827, 150 So. 774; Clark v. State, Miss., 180 So. 602. Neither is the error which was committed by the district attorney in the making of the motion in the presence of the jury for the court to repair to the scene of the killing for a view of the premises a reversible one, as held by the court in Armstrong v. State, 179 Miss. 235, 174 So. 892, since the appellant could have requested that the jury be retired before making an objection. Nor was there any error committed in refusing to permit the appellant to show that he was suffering from lung trouble, and was not therefore on an equal footing with Joe Potter in the fight without resorting to the use of a deadly weapon, since he was not being tried for killing or cutting Joe Potter. Next, it was immaterial that the appellant was not permitted to show that some third party shot at him subsequent to the fatal cutting of Tanner, and after the appellant had gone out of the restaurant. Also, we are of the opinion that the refusal of the trial court to permit the appellant to prove that he had a difficulty with Joe Potter and others, in which Tanner was not involved, on the outside of the Black Cat Inn prior to the fight which occurred on the inside, would not have constituted reversible error unless he had been on trial for killing or cutting Joe Potter, for the reason that we think the evidence amply warranted the jury in believing that the appellant cut and killed Tanner at a time when Tanner was merely trying to stop the fight, and that he did not accidentally cut and kill him while acting in his necessary self-defense against Joe Potter, even if the appellant had been permitted to show what previously occurred outside of the restaurant. In such case he would have been justified only in defending himself against Potter, who was the only person alleged to have been trying to do him harm. The proffered testimony was collateral and immaterial under the facts and circumstances of this case.
The judgment of the court below must therefore be affirmed.
Affirmed.