Opinion
No. 34012.
April 15, 1940.
1. HOMICIDE.
In murder prosecution, case was properly submitted to jury.
2. HOMICIDE.
Where son of homicide victim was asked on cross-examination whether his mother had been engaged in selling whisky at her home, and son replied that both mother and accused sold liquor, the statement volunteered that accused also sold liquor was incompetent but admission was not prejudicial under the facts.
3. HOMICIDE.
Evidence offered to show a motive for killing, but which, if incompetent, had no effect on verdict other than to bring about a conviction of manslaughter instead of murder was not prejudicial.
APPEAL from the circuit court of Lauderdale county; HON. ARTHUR G. BUSBY, Judge.
J.V. Gipson and C.L. Denton, both of Meridian, for appellant.
Appellant respectfully contends that all of the testimony offered by the state tending to show that the appellant was unnatural sexually and that appellant had been guilty of committing a felony known to the law as sodomy as shown by the record appears to be based principally upon the gossip, suspicion and superstition of ignorant, illiterate, and unlearned negroes and hearsay evidence and is unreasonable and unworthy of belief and should not have been admitted and given weight, worth, and credibility by the jury, but appellant respectfully contends that the actions of the district attorney and the court as heretofore complained of encouraged and caused the jury to give undue weight, worth, and credibility to said inflamatory evidence and contentions of the state on said question to the prejudice of the appellant and that same caused or contributed to the conviction of the appellant of manslaughter.
The court erred in overruling the motion of the appellant to exclude that part of the testimony of the witness, the son of the deceased, John Scott, Jr., insofar as it pertains to the appellant here selling whisky wherein said evidence is shown on record, page 23, as said evidence was not responsive to the question asked and said evidence was given by an interested witness who was the son of the party killed while testifying against the appellant who was charged with murder by reason of the killing, and the appellant had no way to anticipate said testimony from said witness and had no way to prevent said witness from giving same and had no other way open to appellant to exclude said evidence that the appellant had been guilty of selling whisky, which is a violation of the prohibition law of this state, except to make said motion and the motion being overruled by the court left said evidence before the jury and the jury most probably gave great weight, worth, and credibility to that part of the evidence, as same accused the appellant of violating the liquor law, and the appellant contends that the prohibition law of the State of Mississippi was a very debatable and sharp cut issue at that time and is now among the people of Lauderdale County, Mississippi, and that in selecting a jury to try a murder case that no question is proper as to whether or not they believed in the enforcement of the prohibition law of the state and by permitting the state to inject said alleged violation of the prohibition law into a murder trial, same is calculated to be highly inflammable to the minds of all members of the jury who believe in the enforcement of the prohibition law, and the law presumes that all citizens and especially all good citizens qualified for jury service believe in the enforcement of the prohibition law, and, therefore, the appellant was prejudiced with the jury on her charge of murder by reason of her alleged violation of the prohibition law being called to the attention of the jury, and the court refused to sustain the motion to exclude said evidence which is highly prejudicial to the rights of the appellant and caused or contributed to the conviction of the appellant of manslaughter.
The appellant contends that every injury unlawfully inflicted by one person on another person causing the death of the other person does not present a cause of murder or manslaughter but that the unlawfulness of the injury must be within the definition of one of those crimes and in support of this contention, the appellant here cites the case of Irby v. State, 185 So. 812.
Appellant contends that all of the testimony offered by the state tending to show that the appellant was guilty of the crime of selling whisky as aforesaid and that the appellant was guilty of the crime of sodomy as aforesaid as defined by this court in State v. Hill, 176 So. 719, and also the appellant was guilty of destroying the home of deceased were all very prejudicial and inflammatory and lent much great color to the state's examination of the witnesses while the appellant was on trial for her life, and the appellant contends that the state attempting to prove the defendant guilty of said crimes or violations of the law which were other than the charge on which she was then on trial was very prejudicial and inflammatory and all together constitutes reversible error, and in support of appellant's contention, the appellant here cites the case of Irby v. State, 185 So. 812.
Russell Wright, Assistant Attorney-General, for appellee.
The only evidence complained of was the evidence of unnatural sexual relationship between appellant and deceased. Not knowing the nature of the defense, the state offered this evidence to show the motive of jealousy. I submit that such evidence, if competent for any purpose, was competent for all purposes, even though it may have shown the appellant to be guilty of other crimes.
King v. State, 123 Miss. 532, 86 So. 339; Dabney v. State, 82 Miss. 252, 33 So. 973; Amacker v. State (Miss.), 124 So. 355, citing Keel v. State, 133 Miss. 160, 97 So. 521; King v. State, 106 Miss. 613, 64 So. 373.
Appellant's defense was self defense. The entire law of self defense was covered in both instructions for the state and those of the defense. She was convicted of manslaughter, therefore cannot complain of the murder instructions.
I submit that this case should be affirmed, with the further observation that appellant should consider herself lucky that she was not convicted of murder.
The appellant, a negro woman, was indicted and tried for the murder of another negro woman, Pearl Scott, and was convicted of manslaughter and sentenced to serve a term of fifteen years in the state penitentiary; and from which judgment of conviction and sentence she appeals.
The proof on behalf of the State discloses that in the early part of the night on which the killing occurred, the deceased, Pearl Scott, left her home and went to a picture show in company with other persons and did not return until about 11:30 P.M., when she was met by the appellant at the front of the house and cut to death with a knife. Appellant and an eighteen year old son of the deceased were at the house at the time the deceased left to go to the picture show, but they later visited some places for awhile where drinks were sold and nickelodeons played, and then returned to the home of the deceased shortly before her return from the show. The eighteen year old son, John Scott, Jr., then retired in his bedroom, and he claims that the appellant pulled off her coat and lay down on the bed in another room usually occupied by his mother; that, within twenty or thirty minutes thereafter, upon his mother's return, he heard the appellant run out of the front door and off of the porch, meeting her; and that immediately he heard his mother call out to the appellant, "don't cut me with that knife." He then ran out, saw his mother lying on the ground, and thereupon engaged in a fight with the appellant when she advanced toward him. He struck her with his fist and knocked the knife out of her hand into a ditch, where he found it on the next morning. The appellant admitted that the knife found in the ditch belonged to her, but claimed that the deceased was trying to get her hand into a pocket at the time she cut her. Later, a small knife was found in the deceased's pocket, but it was unopened.
The witnesses for the State further testified that while the said Pearl Scott was at the picture show, the appellant was seen sharpening a knife at one of the places she had visited — the "Blue Nose;" and was heard to make various threats of violence within an hour or two of the killing, and some of which were shown to have been made toward the deceased. Under all of the evidence, the issue of whether the facts surrounding the killing constituted the crime of murder was properly submitted to the jury, and under correct instructions, but with the result that the jury convicted the appellant only of manslaughter.
It is urged, however, that the court below erred in admitting certain prejudicial testimony for the State over the objection of the appellant. The witness, John Scott, Jr., was asked upon cross-examination: whether it was not true that his mother, the deceased, had been engaged in selling whiskey at her home, and he replied "Mamma sold liquor and Patty (meaning the defendant) did too." Q. "They both sold it?", and he replied "Yes, sir." Thereafter, appellant's counsel moved to exclude this testimony, and the motion was overruled. Although the statement volunteered by the witness to the effect that the appellant also sold liquor was incompetent and irrelevant on the issue being tried, and should have been excluded, we do not think that it could have influenced the verdict to any extent whatever under the facts of this case.
Next, the State, in an effort to show a motive for the killing, introduced certain testimony, which is too vulgar and indecent to be set forth in this opinion and reported in the books, and which was offered for the purpose of showing that the appellant was jealous of the deceased, and that she was therefore angry because she had gone off with other persons to the picture show that evening and had not returned until the late hour hereinbefore mentioned. In that behalf, witnesses for the State quoted the appellant, over her objection, as having made statements to them in support of such a theory. However, even if such testimony had been incompetent, we are of the opinion that it did not materially affect the verdict of the jury, unless it can be said that it resulted in a conviction of manslaughter instead of murder, since the State's theory, in that regard was so completely refuted by medical testimony, which was without substantial dispute, that it was rendered wholly unbelievable as substantive proof on the question of motive, or for any other purpose. A discussion of the sordid details of this theory and attempted proof, and of the facts in refutation thereof clearly established by the defense, can serve no good purpose. Suffice it to say, the facts testified to, as to what occurred on the occasion of the killing itself, are such, in our opinion, as to preclude the idea that the testimony referred to was a factor in causing or influencing the jury to reach the verdict rendered, unless, as heretofore stated, its effect was to bring about a conviction of the lesser offense than that charged in the indictment. This being true, we are unable to hold that the admission of the testimony objected to constitutes reversible error. The judgment must therefore be affirmed.
Affirmed.