Opinion
No. 39917.
February 13, 1956.
1. Criminal law — assault with deadly weapon — use of deadly weapon — prima facie evidence of intent.
In prosecution for assault with a deadly weapon where state's proof showed that the defendant committed an assault upon the victim by the use of a deadly weapon such was prima facie evidence of intent to kill.
2. Criminal law — evidence — assault with intent to kill and murder — conviction sustained.
Evidence as a whole sustained conviction for assault with a deadly weapon with intent to kill and murder the victim.
3. Witnesses — evidence — impeachment on collateral matter — reversible error.
In such case, where witness testified on cross-examination that he was not afraid of what had happened, meaning the alleged assault by the defendant on the victim which had occurred in front of witness' house, and that he did not state to victim that defendant had threatened the life of him and his wife, and that he did not ask victim what he could do to protect his home in the event the defendant came to his home that night, testimony in contradiction of the witness by the victim that the defendant had made such statements to victim, was improper as impeachment on a collateral matter, inflaming and highly prejudicial and constituted reversible error.
Headnotes as approved by Holmes, J.
APPEAL from the Circuit Court of Pearl River County; SEBE DALE, Judge.
Wingo Finch, Hattiesburg, for appellant.
I. The Court erred in failing to exclude the testimony of Mr. Osborne Moody. Mr. Moody had been present in the courtroom during the trial of the case and was under the rule, and for this reason his testimony was objectionable.
II. In the examination of the witnesses, the prosecuting attorney repeatedly propounded questions so framed as to impress the jury that the accused was a man of a violent and quarrelsome disposition and that he had committed serious assaults upon other persons on different occasions in the past — and this whether the questions were answered or not. These interrogations were obviously improper under elementary rules of criminal evidence, and the Court repeatedly sustained the objections to them, but the attorney persisted along the same lines until finally the defendant moved for a mistrial, which in view of what had happened the Court should have sustained. Buchanan v. State, 204 Miss. 304, 37 So.2d 318.
III. The State failed to prove intent to kill and murder. Buchanan v. State, supra; Craddock v. State, 204 Miss. 606, 37 So.2d 778; Dickins v. State, 208 Miss. 69, 43 So.2d 366; Smith v. State, 161 Miss. 430, 137 So. 96.
J.R. Griffin, Asst. Atty. Gen., Jackson, for appellee.
I. It was proper for the State to introduce testimony in rebuttal as impeaching testimony to show that the witness had made contradictory statements, particularly when these statements are relative to the facts in issue. Shaw v. State, 136 Miss. 1, 100 So. 519; Steele v. State, 76 Miss. 387, 24 So. 701; Whit v. State, 210 Miss. 817, 50 So.2d 385; Payne v. State, 204 Miss. 455, 37 So.2d 743.
II. When a witness takes the stand, he assumes the incidents and responsibilities of a witness which, of course, includes the possibility of having his testimony impeached.
III. Intent is generally held to be a question for the jury.
IV. The jury here was instructed that to find the appellant guilty they had to find that the appellant had the intent to kill and murder, and that the intent is an essential ingredient of the offense. Therefore, since the jury resolved this question against the appellant, and the appellant has made no motion for a new trial, he is not entitled to a review in this Court. Justice v. State, 170 Miss. 97, 154 So. 265.
V. The unlawful use of a deadly weapon in an assault and battery is prima facie evidence of intent to kill, which will prevail unless rebutted by other testimony. Howard v. State, 212 Miss. 723, 55 So.2d 436.
VI. Appellant refers to the proposition that if the appellant had intended to kill he could have fired other shots than the one which he did fire. The answer to this proposition is to be found in Howard v. State, supra, and Seary v. State, 204 Miss. 299, 37 So.2d 316, where we find the test to be, in such a case as this, whether or not the accused intended to kill and murder at the time he fired the shot, or otherwise inflicted a wound, and not what he might have done earlier or could have done later.
The appellant was convicted of an assault upon Osborne Moody with a deadly weapon, towit: a 22 rifle, with intent to kill and murder him. He was sentenced to two years in the State penitentiary and appeals. He argues two grounds for reversal of the judgment of conviction.
He contends, first, that the evidence of the State is insufficient to prove the intent to kill. The State's proof showed substantially the following:
The difficulty occurred in the White Sand Community, a rural section out from Poplarville. Osborne Moody was a deputy sheriff. He received information that there had been some trouble between the appellant and a man named Kilby, and that the appellant had gone to his home for a gun and had said that he was going to kill Kilby. One of the witnesses for the State testified that the appellant said that he was not going to be arrested. Another testified that the appellant said he was going to kill Osborne Moody. The deputy drove out in his car for the purpose of locating and arresting the appellant. On the way, he saw the appellant approaching him in his car and attempted unsuccessfully to flag him down. When the appellant failed to stop, the deputy turned his car around and pursued him, sounding his siren. The appellant turned off the road and drove down to a branch and stopped his car at a bridge and got out and ran into the woods carrying his rifle. The deputy drove down to the bridge and while there, Benton Burge and Vernon Wheat drove up. After some conversation and after the deputy had removed the ignition key from the appellant's car, he and Vernon Wheat drove on to a point in front of Archie Wheat's house where the shooting is said to have occurred. The deputy and Vernon Wheat got out of the car and were joined by Archie Wheat, who had come out from his home. While the three of them were standing in front of the deputy's car, the appellant appeared from out of the woods about 200 yards away and called to the deputy, "Osborne Moody, damn it, or God damn it, come and get me." One of the witnesses for the state testified that the appellant called the deputy's name and applied to him a vile epithet. The appellant then fired his rifle in the direction of Moody. He shot twice, and the bullets came so close to Moody and Vernon Wheat that they could hear the whistle of the bullets. No one was struck by either of the shots. The deputy removed his shotgun from the back of his car and fired once into the air. The appellant then disappeared. He was later arrested by the deputy and placed in the back seat of the deputy's car. While the deputy and the driver of the car were trying to get the car started, the appellant got out of the car and ran away. The next day, he came to the sheriff's office and surrendered.
The evidence for the appellant showed that he did not point, aim, or fire his rifle at Osborne Moody but fired into the air. The conflicting evidence created an issue for the jury.
(Hn 1) The State's proof showed that the appellant committed an assault upon Osborne Moody by the use of a deadly weapon. This was prima facie evidence of an intent to kill. Jeff v. State, 39 Miss. 593. (Hn 2) The state, however, did not rest its case upon the prima facie showing. Its proof as a whole, as appears from the facts related, amply warranted the jury in finding that the appellant fired his rifle at Osborne Moody with intent to kill and murder him. We, therefore, find no merit in the appellant's contention that the State's proof was insufficient to show the intent to kill.
(Hn 3) It is next contended by the appellant that the trial court erred in permitting the State to show by way of impeachment and contradiction of the appellant's witness Archie Wheat that the said witness had stated to the said Osborne Moody after the shooting, that the appellant had threatened the life of him and his wife, and that he wanted to know what he could do to protect his home in the event the appellant came to his home that night. The witness had testified on cross-examination that he was not afraid because of what had happened, and that he did not state to Moody that the appellant had threatened the life of him and his wife, and that he did not ask Moody what he could do to protect his home in the event the appellant came to his home that night. In rebuttal of this testimony, and by way of contradiction and impeachment of the witness, Archie Wheat, the State introduced as a witness Osborne Moody, whereupon he was asked the following question: "On the afternoon while you were still there at Arch Wheat's place after the shooting occurred, what if anything did Arch Wheat ask you about his rights to defend himself or his home?" To this question, Moody answered: "He said Murph threatened him and his wife and asked what if he comes back here tonight, what can I do?" Moody further testified that he told Arch Wheat that he had a right to protect his home. This evidence was objected to by the appellant, and a motion was made to exclude the evidence and to order a mistrial.
The appellant's objection and motion were overruled. We think this evidence was clearly incompetent and that the court committed error in admitting it. It was not relevant to the issue in the case. The only issue in the case was whether or not the appellant had fired upon Moody with intent to kill and murder him. Whether or not the appellant had threatened Archie Wheat and his wife was not relevant to the issue involved. The rule in the cases of Williams v. State, 73 Miss. 820, and Whitt v. State, 210 Miss. 817, 50 So.2d 385, is stated as follows:
"Whilst the unsworn statement out of court may be used to contradict the sworn statement in court, whether the statement sought to be contradicted is made by the witness on his direct examination or on his cross-examination, in either case the statement in court must be one embodying a fact substantive in its nature and relevant to the issue made in the case. And if such embodied fact be one not in its nature substantive and so relevant to such issue, and therefore one which the cross-examining party could prove as a part of his case, then the unsworn statement out of court cannot be used to contradict the statement in court, though the cross-examining party may ask as to such unsworn statement, being bound by the answer."
The Williams case, supra, also approved the following: "The test of whether a fact inquired of in cross-examination is collateral, is this, would the cross-examining party be entitled to prove it as a part of his case, tending to establish his plea?"
It is clear that the State would not have been entitled to introduce this evidence as a part of its case and it was error to permit its introduction in rebuttal and by way of impeachment of the witness Archie Wheat. We think the evidence was inflaming and prejudicial. Archie Wheat's wife was the sister of appellant. The effect of the evidence was to picture the appellant as a lawless and violent character who would threaten the life of his sister and brother-in-law. It was calculated to influence the jury to the prejudice of the appellant, and we can not say that the jury was not thereby so influenced. We are of the opinion, therefore, that the admission of the evidence constitutes reversible error.
Accordingly the judgment of the court below is reversed and the cause remanded for a new trial.
Reversed and remanded.
McGehee, C.J., and Hall, Lee and Ethridge, JJ., concur.