Opinion
No. 33222.
October 10, 1938.
1. HOMICIDE.
Evidence sustained conviction of manslaughter.
2. CRIMINAL LAW.
Where defendant and his daughter were permitted to testify that deceased had made an unprovoked assault and battery on each of them about three hours prior to defendant's killing deceased, saying that he was going to kill them, refusing to permit defendant to show details of previous difficulty was not error, especially where, when court's ruling was announced, the state's objection to testimony given by defendant and his daughter was promptly withdrawn.
APPEAL from the circuit court of Alcorn county; HON. THOS. H. JOHNSTON, Judge.
Ely B. Mitchell, of Corinth, for appellant.
The testimony with reference to all of the threats and the conduct of the deceased which had a tendency to show the hostile feeling on the part of the deceased toward the appellant was competent, and the trial court committed error in refusing to allow the defendant in the trial of the case to tell the jury what happened at the Chase home. This court has repeatedly held that where there is doubt, confusion, dispute, or conflict as to the origin of the difficulty, or as to who was aggressor in the difficulty which resulted in the death, and when such fact is pivotal one in the case, testimony even of uncommunicated threats and the nature and character of the previous difficulties wantonly provoked by the deceased is admissible, provided the testimony shows some overt act on the part of the deceased at the time of the fatal encounter.
Brown v. State, 88 Miss. 166; Hendrix v. State, 172 Miss. 589.
What evidence is there on which to base a verdict of guilty of manslaughter in this case? The evidence of Curtis Kilcrease is that Joe Little was standing out in the yard doing nothing at the time he was shot, but he tells Dr. Montgomery and Joe Gray that he did not see the killing; he testified he did not know who did the killing, and three witnesses testify that he was in the east room where he could not have seen the killing. Our contention is that the evidence is so overwhelming that there is no testimony upon which a verdict of guilty of manslaughter could possibly stand.
G.C. Moreland, of Corinth, and W.D. Conn, Jr., Assistant Attorney-General, for the State.
It is said that the court erred in refusing to allow the defendant to show the details of the difficulty between deceased and appellant and appellant's daughter during the afternoon preceding the killing.
Mrs. Lena Chase showed that at a certain time and place during the afternoon the deceased had made an unprovoked assault upon her and her father with a claw-hammer and at that time had threatened to kill both of them and get them out of the way. Appellant, himself, was allowed to testify to the same matters and things. Having been allowed to show virtually in detail this previous difficulty, we think appellant got the benefit of all he was entitled to. Generally speaking, the details of a previous difficulty are not admissible.
Hardy v. State, 143 Miss. 352, 108 So. 727; Carter v. State, 167 Miss. 331, 145 So. 739.
In this case, however, the record tends to show that the court admitted practically every detail of the previous difficulty which the appellant offered in evidence.
Where the evidence is sufficient to justify a conviction of murder, a convict cannot complain that he was convicted of manslaughter or that the state procured an instruction which would authorize his conviction of such offense.
Bradford v. State, 161 So. 138.
Argued orally by Ely B. Mitchell, for appellant, and by W.D. Conn, Jr., for the State.
The appellant, having been indicted and tried for the murder of one Joe Little in Alcorn County, was convicted of manslaughter. The proof, on behalf of the State, disclosed that the appellant, upon seeing the deceased coming along the road in front of his home, secured his shotgun, went out of the house and shot the deceased, at a time when he was not armed and was making no demonstration toward the appellant or anyone else, while the testimony offered by the appellant was to the effect that the deceased threatened him and made a demonstration as if he intended to draw a weapon. The jury was amply warranted under the evidence in adopting the theory of the State and rejecting the contention of the appellant.
Several grounds of error are assigned on appeal, the principal ground being that the trial court refused to permit the appellant to show the details of an alleged previous difficulty. The appellant was permitted to show a threat made and an assault and battery committed by the deceased on him and his daughter some three hours prior to the killing; and the only objection interposed by the State to the testimony in regard to this previous difficulty was withdrawn and both the appellant and his daughter were permitted to testify that the deceased had made an unprovoked assault and battery on each of them that afternoon with a claw-hammer, saying that he had "put up with them as long as he was going to, and that he was going to kill them and get them out of the way." Since the appellant was permitted to show that the previous difficulty was unprovoked, and to show what acts were done by the deceased in committing the alleged assault and battery, there was no error committed by the court in stating that the defense would not be permitted to show the details of this previous difficulty. Moreover, when the court announced the ruling, the objection made by the State was promptly withdrawn, as heretofore stated, and no further objection was made to their testimony regarding what had occurred. Neither do we find any merit in any of the other grounds of error assigned.
Affirmed.