Opinion
No. 27221.
June 4, 1928.
1. HOMICIDE. Evidence of defendants' guilt of murder held sufficient for jury.
Evidence of guilt on trial for murder, though entirely circumstantial, held sufficient to go to the jury.
2. HOMICIDE. Rejection of evidence of flight of another in circumstantial murder case, where there was evidence of alibi, held not error, he not then being connected with the murder.
It was not error on prosecution for murder, though it rested entirely on circumstantial evidence and though there was evidence which would prove alibi, if credited, to refuse to admit testimony that a person living in the vicinity fled the country immediately after the murder, there being at the time no evidence to show that such person had a hand in the murder, and defendants not stating that they expected to so connect him, and offer of the testimony to show flight of such person not being renewed after defendants had so connected him.
APPEAL from circuit court of Alcorn county; HON.C.P. LONG, Judge.
W.C. Adams and G.C. Moreland, for appellants.
This case was supported wholly on circumstantial evidence. We certainly know of no better way to defend than to show that some one else committed the crime. It had been shown in evidence by abundant proof that Tom Reid ate dinner that day at the home of Jack Dunn. Tom Reid had said in his dying declaration that three men who ate dinner at the same place followed him and killed him. It was further in evidence (testimony of Roy Derryberry) that the deceased in his dying declaration named Jack Dunn as one of the men who killed him. In this state of the evidence it was certainly competent to show that Jack Dunn left this country right after the killing and had not been heard from since.
The dying declaration of Tom Reid shows that only three men participated in the homicide. If Jack Dunn was one of them then certainly these three defendants are not guilty. Haywood v. State, 90 Miss. 461.
In this case, it is not only shown that the deceased had very recently been in the home of Jack Dunn, but it is in evidence that Jack Dunn was one of the murderers. Had the jury believed that Jack Dunn participated in the homicide under the proof in this case they could not have convicted all three of these defendants. Had testimony of his flight been permitted along with the other evidence connecting him with the crime, we cannot say that the jury would not have arrived at a different verdict.
The proof showed further that the deceased described his murderers as two small men, and one tall one, which description, by the wildest stretch of the imagination, could not be made to fit these defendants, who are respectively six feet, six feet, one inch and five feet, nine inches in height.
J.A. Lauderdale, Assistant Attorney-General, for the state.
In this case the facts have been submitted to the jury, and they have found the testimony for the state to be true.
It appears clearly from this testimony that appellants had a fuss or quarrel with the old man at the home of Arthur Deloach; that he left on account thereof; and they followed him; that they robbed him and then when he attempted to escape, one of them shot him.
Counsel for appellant complain that the court erred in excluding certain testimony with reference to Jack Dunn. Appellants contend that they were trying to prove that Jack Dunn, and not the defendants, committed the crime. Defendants introduced one witness who testified that he heard the dying declaration of Tom Reid and that he stated one of the men was Jack Dunn and another one was Reuben. I call the court's attention to the fact, though, that this evidence was not introduced until after the state had rested. If this testimony had been introduced prior to the time this testimony with reference to Jack Dunn was offered a different case might have been made.
At the time this testimony was offered, there was absolutely nothing in the record to in any way connect Jack Dunn with the commission of the crime. The rule is that where there is no other evidence tending to connect a person other than the defendant with the crime, that proof of flight, or threat, or admissions, or confessions of such other person cannot be proven. Fields et al. v. U.S., 221 Fed. 242, 59 L.Ed. 1501; Ward v. State (Ala.), 72 So. 754; Toles v. State (Ala.), 54 So. 511.
The case of Haywood v. State, 90 Miss. 461, is not in point. That case held that where accused had introduced testimony which would prove an alibi if true, that it was error not to admit evidence to the effect that disreputable characters, in whose company the deceased had been on the night of his death, left the state on the following day. The testimony with reference to Jack Dunn was offered in the case at bar before the proof of an alibi was made by the defendant.
Appellants were indicted and convicted in the circuit court of Alcorn county of the murder of Tom Reid, and sentenced to the penitentiary for the period of their lives, from which judgment they prosecute this appeal.
Appellants are young men. The deceased was an old man. Deceased was a stranger in the neighborhood in which he was killed. He and appellants had never met, so far as the evidence shows, until the day of the murder. The deceased was traveling afoot on a public highway. He was overtaken, robbed of ten dollars, and shot to death. He made a dying declaration, testified to by Arthur Butler and other witnesses, substantially to the following effect: That on the day of the murder he took dinner at the home of Arthur Deloach, where he met the appellants, Reuben Deloach, Bynum Deloach, and Herman Reardon; that appellants took dinner with him at the same place; that while there, deceased accused appellants of stealing a razor from him; that this accusation resulted in a quarrel between the deceased on the one hand and appellants on the other; that, as a result of this altercation, deceased decided to leave on his journey, and did leave, going up the highway north; that the deceased saw indications that appellants were following him, and picked up two rocks as weapons of defense, and put them in a sack which he was carrying; that on his way he sat down to rest under a tree, and that while there appellants came up, two of them taking hold of him, and the third robbing him of ten dollars in money; that he made an effort to jerk loose from them, and one of them, the largest of the three, shot him; that thereupon he went to the house of Maud Butler, near by. It was in this home that he made this dying declaration. Deceased did not know the names of the appellants. He stated that one of them called another one of them "Reuben." (Reuben Deloach is the name of one of the appellants.) The deceased, in his dying declaration, described the place where he took dinner as the third house from the one on the top of the hill. The evidence tended to show that this was the home of Arthur Deloach. In addition to the dying declaration of the deceased, Mrs. Alma Osborn testified that about one o'clock in the afternoon of the day of the murder she saw an old man pass her home; that she did not know him, but saw him after the shooting and identified him as the deceased, Tom Reid; that a few minutes after he passed, appellants, Reuben and Bynum Deloach and Herman Reardon, passed, following the deceased, or at least going in the same direction he was going; that as they passed along in front of her house, she heard Reuben Deloach say that he was going to pull off his shoes and run and watch the deceased; that thereupon appellant Reuben Deloach did pull off his shoes, and proceeded at a rapid rate down the road in the direction the deceased was going; that later the witness went to where he pulled his shoes off and found them, but after the shooting she went back and looked for the shoes and they were gone. Eva Butler and Stella Nichols, ages nine and ten, respectively, testified that they were at Bruce Nichols' barn, about half a mile from the scene of the murder; that they saw an old man pass shortly before the murder, whom they later identified as being the deceased; that, in a few minutes after the deceased passed, three men passed, going in the same direction, two of whom were appellants Reuben Deloach and Herman Reardon; that shortly after they passed the witnesses heard two shots fired. Homer Briggs and Howard testified that they saw appellants, shortly after the murder, not far away from the scene of the murder, near the Dunn place. Coleman, sheriff of Alcorn county, testified that he examined the place of the murder; that he saw tracks which indicated that three men, besides the deceased, were present at the murder, two with shoes on and one barefooted; that he followed these tracks a short distance north of the scene of the crime, and there they turned east, and he could not track them farther.
Appellants' defense was an alibi. They testified that, although they were together at or about the time the murder was committed, they were not at the scene, but elsewhere. Appellants contend that the evidence was insufficient to sustain a verdict of guilty. It is true that the evidence of appellants' guilt is entirely circumstantial, but we think it was sufficient to go to the jury. It made an issue for the jury to determine, not the court.
Mrs. Butler was testifying as a witness for the state. On cross-examination, appellants sought to show by her that one Jack Dunn, who occupied the home on top of the hill, from which Arthur Deloach's home was the third, going north, had fled the country immediately after the murder. The court refused to admit the testimony, which action of the court appellants excepted to and assign and argue as a ground for reversal of the judgment in this case. To sustain their position, appellants rely on the case of Haywood v. State, 90 Miss. 461, 43 So. 614, in which the court held that:
"Where the accused in a prosecution for murder resting entirely on circumstantial evidence has introduced testimony which would prove an alibi, if credited, it is error not to admit evidence to the effect that disreputable characters in whose company the deceased had been on the night of his death left the state on the following day."
At the time appellants sought to prove, on the cross-examination of Mrs. Butler, that Jack Dunn lived in the house on the top of the hill, and had fled the state immediately after the murder, there was no evidence in the case whatever tending to connect Jack Dunn in any manner with the murder. And appellants did not state to the court that they expected to so connect him by testimony to be afterwards offered. The evidence on behalf of the state did not tend to show that Jack Dunn had a hand in the murder. When that fact was developed by appellants' testimony, they should have again offered the testimony, through Mrs. Butler, which the court had ruled out over their objection. This they failed to do. The trial court cannot be put in error without an opportunity to rule. It had only one opportunity of ruling on this question, and, at that time, its ruling was clearly right.
We find no reversible error in the case.
Affirmed.