Opinion
No. 36482.
May 12, 1947.
CRIMINAL LAW.
In prosecution for assault and battery with intent to kill, introduction of a large stick in evidence, in absence of showing that such particular stick was used in the assault and battery, was reversible error.
APPEAL from the circuit court of Calhoun county. HON. T.H. McELROY, Judge.
Kermit R. Cofer, of Water Valley, for appellant.
The State failed to prove the defendant guilty of the crime charged in the indictment, beyond a reasonable doubt and to a moral certainty and to the exclusion of every other reasonable hypothesis consistent with innocence.
Murphree v. State, 201 Miss. 34, 28 So.2d 238; City of Hazlehurst v. Byrd, 101 Miss. 57, 57 So. 360; Moore v. State, 188 Miss. 546, 195 So. 695; Harris v. State, 71 Miss. 462, 14 So. 266; Griffin v. State, 196 Miss. 528, 18 So.2d 437; Toler v. State, 143 Miss. 96, 108 So. 443; Anderson v. State, 168 Miss. 424, 151 So. 558; Johnson v. State (Miss.), 198 So. 554.
The court committed reversible error in admitting evidence and exhibit of the large stick said to have been found at the scene of the alleged crime on the day after it was said to have been committed.
Bouchillon v. State, 151 Miss. 752, 118 So. 726.
It was reversible error, and highly prejudicial to defendant, for the court to admit testimony of Jim Wright that his billfold was taken from him.
Tate v. State, 193 Miss. 386, 387, 9 So.2d 788; State v. Buchanan, 75 Miss. 349, 22 So. 875; Code of 1942, Secs. 2011, 2036.
The trial court's sentence was so excessive as to be unreasonable in the light of the proof and the only proof which the court had before it.
Code of 1942, Sec. 2011.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
After the State rested the defendant made a motion to exclude the evidence and to direct a verdict for the defendant, which motion was overruled. The defendant did not offer any testimony in his behalf and it is argued here that there is not sufficient evidence to show the guilt of the appellant. This assignment of error is without merit because the testimony of Wright clearly shows that he was struck by appellant with a stick and rendered unconscious, and that when he came to, his money was gone.
Appellant contends that the court committed an error in admitting as evidence the stick that was found by the officers at the crap ground where appellant struck Wright. Massey, Thomas and the appellant did not testify or deny Wright's testimony that he was struck with a stick. The things testified to by the officers as to the stick and conditions found at the crap ground show the stick was a deadly weapon within the purview of the statute and was admissable and sufficient to show to the exclusion of every reasonable hypothesis that the appellant struck Wright with the stick intending to kill him. The indictment alleged that the deadly weapon was a stick and no one could doubt that a stick of the character and size of that introduced was the deadly weapon. At all events, the jury are the judge of whether it was a deadly weapon.
The defendant contends that it was an error to admit the testimony of Wright that his billfold was taken from him, same having in it $150. This evidence was competent to show a motive for the assault, and the intent to kill and murder to get the money and to suppress Wright's testimony by killing him. All the circumstances are admissable to show motive for the striking of Wright and of the intent to kill Wright
The sentence was in the limits fixed by statute and the horrible beating of Wright warrants a severe sentence.
Code of 1942, Sec. 2011; Constitution of 1890, Sec. 28.
Argued orally by Kermit Cofer, for appellant.
Henley was indicted for, and convicted of, assault and battery upon Jim Wright with intent to kill him by the use of "a large stick." On the trial of the case a large stick was introduced in evidence. On this appeal, Henley contends, among other things, that the admission of this stick in evidence was error, and that he was greatly prejudiced thereby.
There is no evidence whatever in this record that this particular stick was used in the assault and battery upon Wright. Wright was the only eye-witness who testified. He said that on the day of the assault, which was Saturday, September 22, 1945, he met in the Town of Bruce, Mississippi, a man by the name of Massey, with whom he was acquainted, and he and Massey ate lunch together. He loaned to Massey $1; that "something after one o'clock" he and Massey met Henley, the appellant, and a man by the name of Thomas; one of the three suggested that they take a ride out of the Town of Bruce in Thomas' car. This they did; Thomas driving. A short distance out, all of them except Thomas took a drink of whiskey, and a short distance further Henley and Massey took another drink of whiskey. Wright said they drove directly to a spot about one and one-half or two miles a little east of north of Bruce, where the car stopped. This particular spot appears to have been generally used as a place for gambling, especially shooting dice. The four parties got out of the automobile and the dice game immediately started, but Wright did not engage therein. What then happened can best be told in the words of Wright:
"Q. When they got out and said they were going to shoot some craps, what happened then? A. They all got on their knees and Massey to my left, and Henley here, (indicating), and Thomas over here, (indicating), and they went to shooting, and Massey lost I suppose.
"Q. What were you doing? A. Sitting down there looking at them, and he went broke and he wanted to borrow some money from me, and I told him: I let you have a dollar in town and I don't intend to let you have any money to shoot dice with. I don't gamble.
"Q. Did you have any money on you at that time? A. Yes, sir, I had $150.00 in a bill fold and seventy-five cents in my pocket.
"Q. And they got in a crap game and Massey wanted to borrow from you, what happened then? A. He held the dice up and Henley said: Hell, let me have them you will not not shoot them and he come around like he was coming in between me and Massey, and when he did that he hit me up above the ear on the left side, and that is all I know."
And, he said this blow made no scar on his head. This is all of the evidence as to what happened at the scene. Wright further said that he became conscious late in the afternoon, and it appears that he was then some distance from the gambling scene, and he had been badly beaten and bruised by some one. He testified, however, that he knew nothing after being hit on the side of his head.
Mr. Guy Taylor, the marshal of the Town of Bruce, testified that he and a deputy sheriff went to the gambling scene that Saturday afternoon about 3 o'clock. They had not then heard of the assault upon Wright. They knew this place was used generally for gambling purposes and they were watching it, and they went for the purpose of detecting any one who might be there engaged in gambling. They found there three men whose names do not appear from the evidence. However, they did not find there any one of the four persons who were present when the assault in question was made. Nor did Taylor or the deputy sheriff testify to finding at the scene any stick on Saturday afternoon. Mr. Taylor further testified that he and the sheriff went back to what he called the "same crap ground" the next morning, which was Sunday. His description of finding the stick which was introduced in evidence is in these words: "Yes, sir, going on down there on the right hand side of the road before we got to the place where they had been shooting craps, I seen a dogwood bush cut down and we went on down and the sheriff looked on the right hand side of the road and I on the left-hand side there was a little red oak tree and I picked up the dogwood brush." He said the stick was about three feet long, and at its largest end was about the size of his forearm; that "it was just to the left of" the "crap ground;" that there was no blood on the stick. One other witness testified that about dark on Saturday afternoon, at a community called Banner, which appears to be a short distance from the scene of the assault, he saw Henley and that he "noticed a little blood on his shirt" and asked him what was the matter, and "the best I remember he said he just beat a fellow up."
Thus, it is seen that there is no evidence whatever that Henley used the stick which was introduced in evidence. Wright's testimony shows that Henley did not have a stick when he assaulted Wright. The officer's evidence shows the stick was cut from a tree located some distance from the "crap shooting ground." Wright's testimony is to the effect that immediately on arriving at the scene, the party got out of the automobile and engaged in the crap game. Wright's testimony negatives the idea that any one, before the assault, cut a stick from a tree and used that stick in the assault. It may be that Henley, or some one else, did use this particular stick, but there is no evidence whatever that it was so used. It is shown that this was the general gambling place for gamblers, and that at least three persons were there on Saturday afternoon after this unfortunate affair took place. The stick was not found until Sunday morning. There is no evidence when or how the stick came to be at the scene. The introduction of the stick before the jury, and the assumption of its use by Henley upon Wright, must have had much weight with the jury. Wright was badly injured, and it is unfortunate that all of the facts could not be developed and the guilty party convicted and punished, whether such party be Henley or some one else. It may be this can be done on another trial. However, under the foregoing circumstances, the stick was not competent evidence and we are compelled to reverse and remand the case.
Reversed and remanded.