Opinion
No. 32671.
June 7, 1937. Suggestion of Error overruled July 1, 1937.
1. CRIMINAL LAW.
In prosecution for assault to murder, admission of bullet taken from automobile occupied by assaulted person when defendant fired the shot, and of evidence as to bullet's entry into windshield, was not error.
2. CRIMINAL LAW.
Jury's view unaccompanied by defendant of automobile which was struck by bullet fired at complaining witness by defendant was not error where defendant at first voluntarily absented himself and nothing was done at the automobile until defendant actually was present.
3. CRIMINAL LAW.
A request for a view of the scene of the crime should not be made in the jury's presence, but the district attorney should first ask that the jury retire before making his request for a view, and if the district attorney makes such a request and the judge does not overrule it, attorney for defendant should himself make a request that the jury be retired and after such request make his objection.
4. CRIMINAL LAW.
The making of a request in presence of jury for view of automobile which was struck by a bullet fired at complaining witness by defendant and the overruling of an objection to the request without requiring the jury to retire was not reversible error where the view was important and the evidence helpful to jury in determining the true facts.
5. HOMICIDE.
Evidence that defendant shot at third person when defendant was in no imminent danger warranted conviction for assault with intent to murder.
APPEAL from the circuit court of Jefferson Davis county. HON. HARVEY McGEHEE, Judge.
King Berry, of Mendenhall, for appellant.
We respectfully submit that the lower court was in error in allowing the bullet to be introduced in evidence as an exhibit to witness McRainey's testimony over the objection of appellant for the reason that the same was not properly identified. A thing to be introduced into evidence must first be identified before it is competent. Just the broad, bare statement that he got it out of the car is wholly insufficient to identify it as being the same bullet that was fired out of the rifle that it is alleged that the appellant shot. So we say that the introduction of this bullet was incompetent evidence and therefore inadmissible against the accused over his objection and is of itself a reversible error.
Before a view may be had by the jury, it is necessary to make a showing that such view is essential in the interest of justice. That showing was not made in the case at bar.
National Box Co. v. Bradley, 171 Miss. 15, 154 So. 724; Great A. P. Tea Co. v. Davis, 171 So. 550.
A request that a view or inspection be permitted should not be made in the presence of the jury because an objection to the request made in the presence of the jury might prejudice the jury against the objector.
64 C.J. 90.
And when such a request is made improperly in the presence of the jury and the court does not then and there at once overrule it because thus improperly made, and the other party does not immediately announce anything as to whether he will or will not join in the request, the judge should, of his own motion, retire the jury, and if he does not, the opposite party must request the retirement, and if upon that request the court still fails to retire the jury and the party then makes his objection to the view, the failure to retire the jury will constitute reversible error, if the evidence be strongly conflicting, whether the order for the view is made or is not made — this because the judge has compelled the party to make his objection in the presence of the jury to his injury as aforementioned.
Under no circumstances can the State in the trial of criminal cases make such a request after the State has rested its case, even though the above rule has been complied with. In this case the defendant himself was on the stand before the request was made and that being in the presence and hearing of the jury. The State had already presented its case in chief and to allow the district attorney to make a request after the defendant had begun to put on his testimony we say constitutes a reversible error if the above requirements had been met for the reason that it was made out of time.
We most respectfully submit that the lower court was in error in refusing peremptory instruction requested by appellant for the reason that the State wholly failed to make out a case as required by law with sufficient and competent evidence. No man should be convicted on mere probability of guilt. A defendant is never, under any circumstances, under any phase of any case, required to satisfy the jury of his innocence. It is sufficient if the evidence taken as a whole, whether introduced by the State or by the defendant, leaves the question of his guilt in reasonable doubt.
Pollard v. State, 53 Miss. 410; Cunningham v. State, 56 Miss. 269; Hawthorne v. State, 58 Miss. 778; Smith v. State, 58 Miss. 867; Bishop v. State, 62 Miss. 289; Ingram v. State, 62 Miss. 142; Dawson v. State, 62 Miss. 241; Byrd v. State, 123 So. 867.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
After the shooting an officer, McRainey, went to the truck where it had been abandoned by the Williamsons immediately after the shooting. He found a spent bullet within the door and fished it out. It had been in his possession from that time until the time it was offered in evidence as an exhibit to his testimony. With this identification the State offered it in evidence and the defendant objected on the ground that it had not been sufficiently identified. The identification was, we submit, sufficient.
Davis v. State, 170 Miss. 78, 154 So. 304.
In the case at bar, appellant admitted firing a .32 caliber bullet into the truck occupied by the Williamsons and in view of his testimony along this line, it is inconceivable how the introduction of this bullet could have prejudiced the defendant, even if the State were forced to concede that it had been improperly identified, a thing which we do not concede.
Appellant assigns the action of the court in overruling his motion for a mistrial as error and in his argument here relies principally upon the case of National Box Co. v. Bradley, 171 Miss. 15, 154 So. 724. In that case the court has laid down certain rules which it says must govern views and inspections by the court. In summing up, the court said this: "But, in order to constitute reversible error, as regards the matter of procedure, the objecting party must (1) make the request for the retirement of the jury, and (2) he must object to the view. The controlling point is that the party must have been obliged, in order to make his objection at all, to make it in the presence of the jury. Until the objecting party has requested the retirement of the jury, any previous failures to conform to the rules of practice above stated will be considered as breaches of propriety, but not as reversible error."
In the case at bar, the defendant did not request the court to retire the jury, but he made his objection to the view in the presence of the jury. The State, by making its motion for a view of the truck in the presence of the jury, violated, perhaps, the proprieties of practice, but, under the above case, his action in this respect will not constitute reversible error.
Both appellant and his counsel were present in the court and knew what was being done and if they, or either of them, deliberately failed or refused to go with the court, appellant has no one to blame but himself. Under such circumstances, this situation should be classed as a temporary absence of an accused at his trial and there being no objection to proceeding in his absence, he should be held to have waived his right to be present under such circumstances.
Pool v. State, 120 Miss. 842, 83 So. 273; Roney v. State, 167 Miss. 827, 150 So. 774.
The State submits that it was not error for the court to allow an inspection of the truck under the circumstances reflected by this record.
Argued orally by Ovie L. Berry, for appellant, and by W.D. Conn, Jr., for the State.
Appellant, Dudley Armstrong, was indicted, tried, and convicted, in the circuit court of Jefferson Davis county, on a charge of assault with intent to kill and murder one Jackie Williamson, and was sentenced to serve a term of five years in the state penitentiary, from which this appeal is prosecuted.
The evidence on behalf of the State and that on behalf of the defendant was conflicting. According to the testimony of Jackie Williamson, he and his nephew went to the home of the appellant for the purpose of collecting a debt secured by a lien on a car owned by appellant, and were informed that he was not there; they made a second visit and received the same information. Jackie Williamson made inquiries in the neighborhood and was informed that appellant was at home, and with his nephew Jackie Williamson returned to the home of appellant a third time, and both testified that Jackie Williamson was unarmed. As they drove up to the home of appellant, he called out something which Jackie Williamson says he did not understand, but the nephew said it sounded like he said something about "sticking them up," and the nephew threw up his hands, but Jackie Williamson did not, whereupon the appellant fired a shot from a rifle which went into the windshield and on to the door of the car about the point where the glass in the door disappears. Jackie Williamson and his nephew then left the car and ran off, and one McRainey, a constable, met them and then proceeded to the point where their car had been left, found the bullet in the door, extracted it, and kept it in his possession until the time of the trial. As the shot went into the windshield, it shattered the glass, and some glass struck Jackie Williamson in the face, but the bullet did not strike him.
The appellant, and a woman who cooked for him, testified that Jackie Williamson and his nephew came to the house of the appellant early in the morning, on the day the shots were fired, and knocked, and appellant went out of the back window and ran off partly dressed; that Jackie Williamson threatened the appellant and made a search for him; that they returned a second time and were told that the appellant was not there, and threatened the woman if she did not show them where the appellant was, and that they broke in the door. The appellant and the woman both testified that Jackie Williamson returned a third time and that the appellant called to them to go ahead, that he was tired of running, and that Jackie Williamson started to get out of his car, and was partly out with a pistol in his hand, and that it was then that the appellant fired the shot. There was some other testimony for the defense by other persons tending to show that Jackie Williamson was armed and had threatened the appellant.
When the State was about ready to close its case, the district attorney requested a view of the car which was then in front of the courthouse. This request was made in the presence of the jury, the defendant objected thereto, but neither party requested the jury to retire, and the judge did not direct the jury to retire or overrule the objection, but the district attorney withdrew his request. The State introduced the bullet found in the car, with proof that its caliber and that of the gun owned by appellant being the same, and that its condition was the same as when found.
The appellant admitted the shooting, but claimed that he was acting in self-defense.
At the close of the appellant's evidence, the district attorney renewed his motion for a view of the car, stating that it was his purpose to rebut the appellant's testimony, but again he did not request the jury to retire, nor did the court direct the jury to retire, and the court sustained this motion for a view.
After objecting to the view, the appellant and his attorney did not, at first, go to the scene, but the court having ordered the entire court to go, appellant then was brought to the point where the car was situated.
It will be seen that the testimony of all parties was conflicting in reference to Jackie Williamson's position at the time of the shooting, whether he was partly out of the car or not.
We think it was important to inspect the bullet taken from the car and evidence as to its entry into the windshield of the car, and that the action of the court in that regard was fully sustained by the decision in the case of Pearlie Davis v. State, 170 Miss. 78, 154 So. 304.
It is urged that it was error for the court to go to the scene unaccompanied by the appellant, and that the jury had opportunity to view the scene in his absence. We think the case at bar comes squarely within the case of Thomas v. State, 117 Miss. 532, 78 So. 147, Ann. Cas. 1918E, 371, where we held that where a defendant voluntarily absented himself during the trial, he could not complain that error had been committed. In a somewhat stronger case, on its facts, Pool v. State, 120 Miss. 842, 83 So. 273, it was held that where the defendant was in jail, and the district attorney made a few remarks in the opening of his address before discovering the absence of the defendant; sent for the defendant, and repeated substantially what he had said before the defendant was brought before the court, no reversible error was committed. In the case at bar, nothing was done, according to the record, until the appellant was actually present.
In regard to inspection of the car, the procedure outlined in National Box Co. v. Bradley, 171 Miss. 15, 154 So. 724, 157 So. 91, 95 A.L.R. 1500, was not complied with, and the principle was again discussed in Great Atlantic Pacific Tea Co. v. Davis (Miss.), 171 So. 550.
The principles which district attorneys, the court, and other attorneys should strictly adhere to were fully discussed in these cited cases, and we do not mean to depart from the rules there announced, but it is not every case where there is a violation of the rules so announced that will call for a reversal. In the last-cited case in 171 So. 550, 552, the court said that, "It may be that in a case where, looking alone to the sworn testimony taken in the courthouse, leaving wholly aside the evidence taken at the scene, and leaving aside anything which the jury may have observed at the scene, it is manifest that the assignment that the verdict is against the overwhelming weight of the evidence is not well taken, an unauthorized view would not reverse; but there is no such manifest case here."
As pointed out in these cases, where there is an inspection of the scene by the jury, on conflicting evidence, the power of the court to review the sufficiency of the evidence is seriously hampered, if not thwarted. The rules announced are highly conducive to the attainment of justice and fair trials. The request for a view of the scene should not be made in the presence of the jury, because if made and objected to, the jury might draw unfavorable inferences from the mere fact of objection, if rejected. The district attorney should have first asked that the jury retire before making his request for a view of the scene, so that the opposite party could object without arousing the jury's prejudice, but as stated in the case of National Box Co. v. Bradley, supra, the judge should have overruled the request, and if the district attorney makes such a request and the judge does not overrule it, then the attorney for the opposite party should, himself, make a request that the jury be retired, and then after such request, make his objection.
It is difficult to see why attorneys or trial judges should not follow this outlined procedure, and we admonish them to strictly observe it.
But in the case at bar, we do not think it amounts to reversible error, for here the view was important because it was impossible by diagrams and pictures to disclose the position of the car door with reference to the range of the bullet which passed through the windshield, and that such evidence was very helpful to the jury in determining the true facts is unquestionable.
It seems to us that the great weight of the evidence shows that the appellant shot at a time when he was in no immediate danger, even if his own version of the transaction be true. Jackie Williamson had not gotten out of the car in such manner as to do great harm, and the appellant was armed with a high powered rifle, and the law does not permit a person to shoot another to avoid danger that is not immediate and impending.
We are therefore of the opinion that there is no error that would warrant a reversal, and the judgment is affirmed.
Affirmed.