Opinion
No. 31831.
October 7, 1935. Suggestion of Error Overruled November 11, 1935.
1. HOMICIDE.
In prosecution for murder of divorced husband of defendant's sister, who was living in deceased's home prior to killing and was leaving deceased's home in response to defendant's order when killing occurred, whether defendant was guilty of murder or manslaughter held for jury, as against contention that killing occurred while defendant was attempting to prevent continuance of adultery between his sister and deceased and was therefore guilty of manslaughter only (Code 1930, section 995).
2. HOMICIDE.
Refusing motion for new trial in murder prosecution on affidavit of witness that state's witness was pursuing defendant as defendant pursued deceased, and that affiant had heard state's witness and deceased threaten life of defendant, held not error, where affidavit was cumulative only and tended to impeach state's witness.
3. WITNESSES.
In murder prosecution, admitting testimony of physician, who attended deceased, with reference to nature and effects of wound found upon body of deceased, held not reversible error. (Code 1930, sction 1536).
APPEAL from circuit of Adams county.
HON. R.E. BENNETT, Judge.
Thomas Maddox was convicted of murder, and he appeals. Affirmed.
L.C. Gwin and O.M. Hornsby, both of Natchez, for appellant.
The court erred in admitting, over objection of appellant, testimony of the witness Dr. C.A. Everett.
McCaw et al. v. Turner et al., 88 So. 705.
This court has said that the language of the statute, section 1536, Code of 1930, is clear and unambiguous and that its manifest purpose is to protect a patient both before and after death from disclosures that might be made by his physician; to distinguish between that testimony which is offered in a civil case and that which is offered in a criminal case, defeats that manifest purpose.
If the construction placed on the statute in McCaw v. Turner, is the correct construction then, in our opinion, it is the duty of the attorneys appearing in a case to object to such testimony when offered in furtherance of the public policy of the state as announced by the statute.
United States Fidelity Guaranty Co. v. Hood, 87 So. 115; State v. Traylor, 56 So. 521, dissenting opinion; State v. Rawles, 60 So. 782.
The court erred in refusing appellant's instruction peremptorily instructing the jury that they could convict of no greater crime than manslaughter.
Adultery is made a crime by section 772 of the Code of 1930, thus appellant, by the undisputed testimony, went to the house of Lawrence Neece to resist the commission of an unlawful act within the meaning of section 995.
Williams v. State, 84 So. 9.
It is appellant's contention that even had the attempt to commit the unlawful act, which appellant was resisting, had been abandoned, then this case is still within section 995, Code of 1930.
Long v. State, 52 Miss. 23, 40; Williams v. State, 90 So. 705, 127 Miss. 851; Burgman v. State, 133 So. 208; William v. State, 120 Miss. 604, 82 So. 318; Fletcher v. State, 129 Miss. 207, 91 So. 338.
The verdict is against the overwhelming weight of the evidence.
McCrory v. State, 25 So. 671; McNeil v. State, 76 So. 625, 115 Miss. 678; Waller v. State, 44 So. 825, 91 Miss. 557; Godwin v. State, 19 So. 712, 73 Miss. 873; Johnston v. State, 30 So. 39, 79 Miss. 42.
Appellant recognizes the rule that newly discovered evidence where merely cumulative or going to impeach a witness is no ground for a new trial, but respectfully submits that the testimony of the witness Ruby Lee O'Neal was material to appellant's case and would probably have resulted in a different verdict.
Campbell v. State, 86 So. 513.
W.D. Conn, Jr., assistant attorney-general, for the state.
Section 1536 provides that "all communications made to a physician or surgeon by a patient under his charge, or by one seeking professional advice, are hereby declared to be privileged and such physician or surgeon shall not be required to disclose the same in any legal proceeding, except at the instance of the patient."
The statute does not apply in criminal prosecutions as between the deceased and his physician.
Davenport v. State, 143 Miss. 121, 108 So. 433.
The defendant was not resisting any unlawful act, but was the aggressor from start to finish and under the state's testimony killed the deceased at a time when the deceased was making every effort to make his escape from the murderous assault of the defendant.
In the light of the testimony given by the witnesses for the state, we submit that not only is the verdict of the jury not against the great weight of the evidence, but is sustained by it and was the only verdict which a jury, fully conscious of its duties, should have returned.
The bare fact that the witness, Shea, ran up the hill in the direction taken by the principals to this homicide would throw absolutely no light upon the degree of the crime committed by the defendant. When the affidavit is stripped of all inferences and appearances, there is no fact which would throw any new light upon the homicide in question. The court properly overruled the motion for a new trial.
Appellant was tried and convicted in the circuit court of Adams county on an indictment charging him with the murder of Lawrence Neece and was sentenced to be hanged. From that judgment he appeals here.
The facts necessary to state are that appellant's sister, Florida, married Neece and to them a child was born, which at the time of the killing was about two years old. Later she secured a divorce from Neece and married Matthieson, but a short time before this homicide occurred she had returned to Neece, without a divorce from Matthieson, and was living in his home in that section of Natchez known as "under the hill." One witness testified that on the evening before the homicide appellant was seen oiling his gun and heard to make a threat that he would get Neece. On the morning of the homicide Shea was at the home of Neece and Florida was also there. The appellant went to the home of Neece and had a conversation with him. Shea testified that he heard Neece tell the appellant, "You are not going to hit her where I am," and that the appellant drew his gun and said to his sister, Florida, that he would give her three minutes to get her things and get up the river bank; that Neece got his gun and asked Florida if she wanted him to go with her. They left the house going north up the river, toward appellant's house; they were in single file with Florida in the lead, Lawrence Neece immediately behind her, then the appellant, and then the witness Shea. Florida had the child it her arms when they left but handed it to Neece. After they had proceeded a short distance, Neece gave the baby back to Florida and a combat ensued between appellant and the deceased. The first blow seen by any state witness was apparently struck by the appellant. The appellant drew his gun, Neece thereupon hit him and knocked him off his balance, and he stumbled and fell down the embankment of a ditch; the two men fought for the possession of the gun, and it was fired two or three times while they were down in the ditch. Neece called to Shea to come help him get the gun, and Shea took the gun away from the appellant; appellant saying: "I am going to kill you if it is the last thing I do, you have taken my gun." Neece told Shea to unload the gun and hand it back to Maddox. Neece had his own gun, but made no effort to use it on the appellant. The witness was unable to unload the gun and handed it back to Neece, who took the gun and started running up the bank, away from the defendant. The appellant ran after Neece. The witness saw one of the parties make a "lunge" at the other, but he did not see anything further of the difficulty.
Mrs. Matthieson testified substantially to the same facts as did Shea, except that she said that her brother, Maddox, pursued Neece and when he got close to him, Neece turned and faced him and pushed him back with the handle of the gun, holding the barrel in his own hand, and thereupon Maddox stabbed Neece. Mrs. Matthieson saw that he was stabbed in the breast. He was carried to a hospital, where he lived only a few minutes, and the physician, Dr. Everett, testified that the wound was in the left breast, penetrated the heart, and was the cause of his death.
The appellant offered his wife and another occupant of his house as witnesses, and they testified that they saw the beginning of the combat and that Neece struck Maddox the first time; they did not see the termination of the difficulty. The appellant offered evidence of threats against his life made by Neece.
1. It is contended that because the appellant was engaged in an effort to prevent the continuance of the crime of adultery between Neece and Florida Matthieson, he could not be convicted of a higher crime than manslaughter, and the court should have granted an instruction to that effect; further, that the overwhelming weight of the evidence shows the appellant killed Neece in an effort to prevent the crime of adultery from being continued, and therefore he could not be convicted of murder, relying on section 995, Code 1930.
In the first place, the evidence in this case does not disclose that appellant was engaged in an effort to prevent the continuance of the crime of adultery; it does not appear that the crime of adultery had been committed; it does disclose that upon appellant's order for her so to do Florida Matthieson was leaving Neece's home. Aside from that, no crime of adultery is intimated as having been committed or threatened in the presence of appellant, which would be essential to avail of the above statute as a defense, reducing the crime from murder to manslaughter.
Upon all the facts of this case it was a question for the jury as to whether the appellant was guilty of murder or manslaughter.
2. On a motion for a new trial the affidavit of a witness was presented which undertook to show that Shea, the state witness, was pursuing the appellant as he pursued the deceased, and that the witness had heard both Shea and Neece make threats against the life of the appellant. The witness was available but was not offered on the motion. Viewing this affidavit in its strongest light, the evidence was only cumulative and tended in some measure to impeach the witness Shea, and it was not error to refuse a new trial on it. Powers v. State, 168 Miss. 541, 151 So. 730, and authorities there cited; Blevins v. State, 169 Miss. 868, 154 So. 269.
3. When Dr. Everett was offered as a witness, the appellant objected to his testimony on the ground that the doctor was the attending physician of the deceased, and therefore was incompetent under section 1536, Code 1930. The evidence of Dr. Everett was as to the nature and effect of the wound found upon the body of the deceased. In the case of Davenport v. State, 143 Miss. 121, 108 So. 433, 45 A.L.R. 1348, this court held that where a person is on trial for the unlawful killing of another, it is not reversible error under section 3695, Code 1906, to admit the testimony of the physician who attended the deceased with reference to the condition of his wounds, nor can the privilege be invoked by one accused of the crime as to information respecting the condition of his victim. Section 3695, Code 1906, has been re-enacted as section 1536, Code 1930, in exactly the same language; therefore Davenport v. State, supra, is controlling in this case, and it was not reversible error to admit the evidence of Dr. Everett.
We find no error in this record, and Friday, November 15, 1935, is fixed as the date for the execution of the death penalty.
Affirmed, and Friday, November 15, 1935, fixed as date of execution.