Opinion
April 11, 1949.
1. Criminal procedure — trial — excluded testimony later admitted.
Although competent testimony was excluded when first offered, yet if subsequently the defendant and his witnesses were permitted to testify fully as to all matters at first excluded, there is no reversible error.
2. Criminal procedure — trial — instructions — other instructions.
Although a refused instruction is unobjectionable, yet if other instructions granted adequately covered the same principles as those embodied in the refused instruction there is no reversible error.
3. New trial — when motion for must be supported by evidence.
An unsworn motion for a new trial based upon asserted facts, not of record, is properly overruled when no testimony is offered in support of it.
4. Witnesses — jurors — verdict, impeachment of.
Members of a jury cannot be heard as witnesses to impeach their verdict.
Headnotes as approved by Hall, J.
APPEAL from the circuit court of Forrest County; F.B. COLLINS, J.
Homer W. Pittman, for appellant.
The evidence about the abuse and threats of the deceased toward the appellant on Mobile Street and at John Bell's home, is uncontradicted, and it is uncontradicted that Jones was in a drunken condition when the men first met on Mobile Street, and that he cursed, abused, and threatened the appellant, and that the appellant succeeded in getting away from him two or three times during the same afternoon, and on each occasion, Jones followed and pursued the appellant, and that it was a continuous affair from the time they first met on Mobile Street at 2:00 o'clock until Jones was killed about 5:00 o'clock in the afternoon.
The appellant offered the witnesses John Bell and his wife, Ora D. Bell, who were present in the Bell home when Jones followed the appellant there about 3:00 o'clock in the afternoon, and who knew about his drunken condition, his abuse, and threats, but the court held that the testimony of these witnesses was incompetent and inadmissible, and sustained the State's objections to the said testimony, and the jury did not have the benefit of this evidence on the theory that the appellant had not shown an overt act on the part of the deceased, and therefore the testimony was not admitted. These witnesses did testify as to the actual threats made by the deceased toward the appellant, but the court refused to permit them to go into detail as to the demeanor of the deceased toward the appellant, and finally held that the threats were incompetent until the appellant had shown some overt act by the deceased.
The uncontradicted testimony of the appellant shows that the deceased was the aggressor from the time that they met each other about 2:00 o'clock in the afternoon on Mobile Street until the homicide was committed. The appellant testified that Jones was under the influence of intoxicating liquors, that he had called him a son of a bitch, and had threatened to kill him, that he was known to have a knife, and that when they met each other at the scene of the homicide, the appellant was actually afraid that Jones was about to do him some bodily harm or take his life, and that he struck him at a time when he believed that his life was in danger, and that he struck him in self defense.
We respectfully submit that it was highly prejudicial to the appellant and the court committed error in sustaining the State's objection to the witnesses, John Bell and his wife, Ora B. Bell, who were present with Jones and the appellant in their home about 3:00 o'clock in the afternoon or about an hour or an hour and a half before Jones was killed, and said witnesses were offered by the appellant to show the demeanor of Jones toward him, and the threats that he had made toward the appellant, all of which we contend was competent for the reason that it was a continuous affair and was a part of the res gestae. These facts were pertinent and material to the appellant's defense, the acts of the deceased, Jones, were a continuous series of events closely connected in point of time which led up to the final meeting of the parties where the homicide was committed; in fact, the evidence, uncontradicted that Jones had followed the appellant from the time he got away from him at 2:00 o'clock in the afternoon until about 4:30 o'clock or 5:00 o'clock the same afternoon when he was stabbed by the appellant, and the court's refusal to permit this testimony to go to the jury was a reversible error.
In support of our contention that this testimony was admissible, we submit the following authorities: Johnson v. State, 27 So. 880; Brown v. State, 40 So. 1009; Clark v. State, 85 So. 188; Hester v. State, 110 So. 443.
There is a serious conflict in the evidence as to who was the actual aggressor at the scene where the homicide was committed, and under such state of facts, the testimony of these two witnesses would have been competent. The court will bear in mind that the appellant's testimony as to the demeanor of the deceased, Jones, his cursing and abusing of the appellant, and his threats toward him, and the further fact that he had been following him all afternoon is uncontradicted. This being true, we earnestly submit that we had a right to show all of the circumstances and facts as to the prior difficulty between these two men, especially so where it was a continuous affair, growing out of the same cause.
We submit further that the court committed error in refusing the instruction asked for by the appellant as shown on page 32 of the record. The instruction reads as follows: "The court charges the jury that the defendant's defense in this case is one of self defense, and under the law, the jury has a right to take into consideration all of the facts in determining their verdict; that is to say, the jury has a right to consider the evidence as to whether the deceased was sober or in a drunken condition at the time of the alleged homicide; whether the deceased had made threats toward the defendant's life; whether or not the deceased was the aggressor, and at the time of the conflict, had placed his hand in his pocket in a threatening manner; all such testimony is competent to determine who was the aggressors; and if after having heard all of the testimony, you believe beyond a reasonable doubt that the deceased had cursed, abused, and threatened the defendant's life, and that his demeanor was such, that the defendant had reason to believe and did believe that the deceased was about to kill him or to do him some great bodily injury, then he had a right under the law to protect himself even to the extent of taking the life of the deceased."
This instruction closely follows and clearly states the law, and is in keeping with the evidence in this case. Sprinkle v. State, 137 Miss. 731, 102 So. 844; Cartee v. State, 162 Miss. 263, 139 So. 618.
We submit further that the verdict was not a true verdict of the jury. That the court erred in denying the appellant the right to show by members of the jury, certain irregularities committed by them while in the jury room, such irregularities being, that the jury reached a compromised verdict, in that not a single man on the jury voted for the death sentence in this case, that being true, the only lawful verdict they could have returned would have been one fixing the punishment at life imprisonment, or certifying that they were unable to agree on the verdict, which would have resulted in a mistrial. The appellant offered to introduce testimony showing that the jury thought the appellant should serve a few years in the Penitentiary, but that they finally compromised on the theory that if they reported they were unable to agree on the punishment, that the court could sentence him to serve four or five years in the State Penitentiary.
We realize that the authorities hold that juries cannot, by their own testimony, impeach their verdict, however we submit under the holdings of our courts, that we are permitted to show certain irregularities, and that compromised verdicts are not lawful, and we sincerely believe that the appellant should have been permitted to show such irregularities, and to show that the verdict was not a true verdict of the jury. The order overruling the appellant's motion appears on page 39 of the record.
In conclusion, we respectfully submit that the court erred in holding that it was necessary for the appellant to show some overt act by the deceased toward him before permitting testimony of previous threats by the deceased, especially so where there was a conflict as to who was the aggressor. We believe further that in view of all of the testimony in this case, the uncontradicted proof that the deceased was the aggressor up to and at the time of the homicide, that it was a continuous affair, and under such circumstances, we would have had a right to have shown previous difficulty between the parties where the said difficulty was so closely connected with and growing out of the same matter. We believe we had a right to show that the deceased was under the influence of intoxicating liquors, that he had, just a few hours prior to the homicide, abused, cursed, and threatened the appellant's life, that he was carrying a deadly weapon on him, and that he had followed the appellant from place to place, and the court's refusal to permit us to show these facts was highly prejudicial to the appellant's defense, and was error.
George H. Ethridge, Assistant Attorney General, for appellee.
State introduced L.M. McGowan who testified that he was present when the alleged killing took place. That he knew the appellant when he saw him and identified appellant in the court room. That he and Starling Wade were together and they saw the appellant speak to deceased and then hit deceased. That they didn't see the knife. That they saw no weapons at all. That deceased was doing nothing at the time appellant struck him. That deceased had no weapon in his hands at the time he was struck. That appellant walked around the corner after striking deceased.
I invite the court's attention to the entire testimony of this witness which would establish the case against the appellant if the jury accepted it as stated.
The State introduced Starling Wade who testified substantially to the same facts as the preceding witness.
The State introduced Lem Pete whose testimony begins at page 29. He testified that he was present at the time the alleged killing took place. That he saw the appellant strike the deceased.
Several other witnesses testified and it appears from their testimony that the deceased was doing nothing to the appellant when appellant struck deceased. It is not necessary to set out this testimony but the substance of the state's testimony was that appellant struck deceased and then went away and that Jones fell on his face and an ambulance came and took deceased to the hospital and he was dead on arrival from a knife wound.
There is nothing in the record to indicate that the jury was violently prejudiced or that they were corrupt in any manner and it is a clear case for the jury's decision alone.
Counsel raises a rather curious argument with reference to the right of jurors to testify to their deliberations after hearing the evidence and receiving the charges on the law. Their deliberations are not inquirable into on the motion for a new trial.
There is nothing in the record to show the tender of proof on any point in the motion and no specification therein which would serve as a foundation of proof by anyone let alone the jury itself to impeach the verdict on that specification or allegation contained in the third ground of the motion for a new trial. A motion is at issue without further pleading and counsel must, to sustain his motion, introduce proof on such issue. Reed v. State, 143 Miss. 686, 109 So. 715. Many other cases are in the books but this ruling is sound and has never been overruled. Furthermore, the court specifically charged the jury in its instructions as to the form of the verdict to be rendered in case they believed from the evidence that the defendant was guilty of murder. It must be presumed conclusively that the jury read and considered the instructions and it should also be presumed that counsel, in making the argument, discussed the instructions and read them to the jury and stated the propositions of law contained in them. If this was true, the jury could not be misled from the instructions referred to which appears on page 9 of the record and conforms to the requirements of the law in every particular. It could not be reasonably believed from this record that any juror was confused about what punishment must be inflicted and none of the jurors could have reasonably believed that any juror wanted to inflict punishment less than life. However that may be, it was the duty of the jury in case of a disagreement to certify their inability to agree and this the jury did in finding the defendant guilty of murder and certifying to the court that they could not agree on the punishment. It could not result in a mistrial if the jury agreed on the guilt of the defendant as they did in this case what punishment any individual juror thought the judge might give the defendant or that the jury would want to give if they had the power to fix the punishment without a unanimous agreement. The law fixes the punishment in such cases although the jury may agree to a life sentence if they are unanimous in their recommendation but if they are not unanimous in their recommendation or finding they should return the verdict they returned and the law itself prescribes the punishment and the judge cannot depart from what the law requires.
Appellant was indicted for murder and upon conviction was sentenced to the penitentiary for life. From the judgment of conviction and sentence he appeals.
The state produced five eyewitnesses, all of whom testified that the appellant approached the deceased on the streets of the City of Hattiesburg late in the afternoon and stabbed him at a time when the deceased was unarmed and was doing nothing to provoke a difficulty or to give apprehension of bodily harm to appellant. After the stabbing the deceased walked across the street and fell upon the sidewalk; an ambulance was called and deceased was carried to the hospital where he was examined and pronounced dead as a result of a knife wound in the heart. Appellant testified, and produced one witness to support him, that at the time of the attack the appellant met the deceased and requested payment of a $1 loan which had been previously made, and that thereupon the deceased cursed appellant, pulled a knife from his pocket and advanced upon the appellant, and that appellant stabbed deceased in self defense. None of the state witnesses saw appellant's witness at the scene of the difficulty and none of them saw deceased pull a knife or make any overt move toward appellant. No knife was found at the scene.
It appears from the testimony for appellant that he had loaned the deceased $1 a week or ten days before the killing; that appellant and deceased had met two or three times previously on the afternoon of the killing and that deceased was drinking and had threatened to kill appellant if he asked again for repayment of his money. Appellant offered two witnesses who testified about one of these incidents which occurred about an hour before the killing. It is complained by appellant that the trial court erred in refusing to permit these witnesses to give the details of what occurred on this occasion. (Hn 1) When the testimony was initially offered the trial court did at first exclude it, but the record shows that subsequently these witnesses and the appellant were permitted to testify in detail as to everything that took place, and consequently we find that appellant was not prejudiced by the preliminary exclusion of the testimony.
Appellant also complains of the refusal of one instruction which he requested pertaining to his plea of self defense and outlining what the jury may consider in connection therewith. (Hn 2) While there is no particular vice in the refused instruction, nevertheless the appellant was granted eighteen instructions, and eleven of these covered either by piecemeal or in toto the same principles which were embodied in the refused instruction. Therefore the refusal of this one instruction was not prejudicial to appellant, as every principle announced therein was given to the jury as the law of the case by other instructions.
The appellant further complains that the verdict of the jury was a compromise verdict and should not be permitted to stand. The verdict is in every respect regular on its face, finding the defendant guilty as charged but certifying that the jury is unable to agree as to the punishment. Under the law of this state such a verdict carries with it a sentence to life imprisonment, Sections 2217 and 2536, Mississippi Code of 1942. (Hn 3) In an unsworn motion for a new trial the appellant averred that no member of the jury voted for a death sentence, and that there was no disagreement among the members of the jury as to the punishment. It is argued in appellant's brief that the trial court erred in denying the appellant the right to show by members of the jury the foregoing averments. There are two answers to this contention. The first is that the record does not show that appellant ever offered any member of the jury as a witness to sustain his motion for a new trial; according to the record he simply filed a motion and it was overruled without any proof being offered thereon. (Hn 4) The second is that members of a jury cannot be offered as witnesses to impeach their verdict, and if the trial court did deny the appellant the right to offer such testimony, no error was committed thereby.
After a careful consideration of all the evidence we are of the opinion that the jury was abundantly warranted in finding the appellant guilty, that no error was committed at the trial in the court below, and that consequently the judgment should be affirmed.
Affirmed.