Opinion
No. 40140.
May 28, 1956.
1. Criminal law — photographs — admissible — on showing that they accurately depict object or scene purported to be photographed.
In murder prosecution, photographs were admissible on a showing that they accurately depicted object or scene purported to be portrayed, and it was not necessary that the photographs be testified to by photographer, nor that there be testimony as to the kind or condition of camera.
2. Criminal law — photographs — authenticated how — by whom.
Proposition that a photograph accurately represents the place or subject it purports to represent may be shown by any competent witness whose view of actual scene at pertinent time enables him to testify that picture accurately represents the scene.
3. Murder — photographs — body of victim — relevant — admissible.
In murder prosecution, wherein evidence showed that accused shot victim in night club, and that victim ran from building, and victim's body was found next morning across highway from building, admission of photographs, wherein was body of victim, which showed building where shooting took place and its relation to highway and place where body was found, and showing wound where bullet entered the body, were pertinent and relevant to the inquiry, and were admissible.
4. Criminal law — evidence — weapon admissible — as murder weapon.
Where evidence disclosed that murder weapon had been purchased by defendant's companion and that defendant had given weapon to another to keep, weapon was admissible.
5. Homicide — murder weapon — evidence.
Where alleged murder weapon was admitted and evidence disclosed that one shot had been fired from weapon at time victim was killed, it was not error to permit policeman to testify that gun contained five cartridges and one empty shell.
6. Criminal law — accusatory statements made against defendant — undenied — in reconstructing events at scene of crime — admissible in evidence.
Where the day after the killing police took defendant and eyewitness to scene of shooting, and eyewitness in defendant's presence, reconstructed events and defendant, upon being asked if witness' demonstration and statements were correct, said, "I just don't remember", permitting policeman to relate before jury the foregoing events and quote words used by eyewitness in reconstructing events, and defendants quoted reply, was not error, but was admissible as an implied confession.
7. Criminal law — accusatory statements — undenied — admissibility in evidence — generally.
Where accusatory statements are made against a party within his presence and hearing, and are understood by accused, and circumstances are such that it is proper and natural for accused to deny accusations, and he has a fair opportunity to reply, a total or partial failure to reply or an evasive answer is admissible in evidence as an admission of truth of the accusatory statements.
8. Murder — evidence — sustained conviction.
Evidence sustained conviction for murder.
Headnotes as approved by Gillespie. J.
APPEAL from the Circuit Court of Hinds County; M.M. McGOWAN, Judge.
W.W. Pierce, Jackson, for appellant.
I. The Trial Court erred in admitting in evidence, over the objections of the defendant, photographs of the deceased, to the testimony of L.C. Bennett. Brett v. State, 94 Miss. 669, 47 So. 781; Fore v. State, 75 Miss. 738, 23 So. 712; Sims v. State, 209 Miss. 545, 47 So.2d 849; Willette v. State, 224 Miss. 829, 80 So.2d 836.
II. The Trial Court erred in permitting the introduction of the gun in evidence which was said to be delivered to L.C. Bennett by a man by the name of Bullock, and in permitting L.C. Bennett to testify with reference to the gun and the rounds of ammunition and empty shell in the gun delivered to the witness Bennett. Herman v. State, 75 Miss. 340, 22 So. 873; Henley v. State, 202 Miss. 37, 30 So.2d 423.
III. The Trial Court erred in permitting the State witness L.C. Bennett to testify before the jury what the State witness, Dorothy Williamson, stated had occurred at the time the deceased was shot. Boyd v. State, 84 Miss. 414, 36 So. 525; Field v. State, 57 Miss. 474; Jeffcoat v. State, 108 Miss. 585, 67 So. 56.
IV. The Trial Court erred in permitting the witnesses Dorothy Williamson, Rufus Stacy, and M.B. Pierce to testify in rebuttal, over the objections of the defendant, to immaterial and collateral matters. Bell v. State (Miss.), 38 So. 795; Garmon v. State, 66 Miss. 196, 5 So. 385; Davis v. State, 85 Miss. 416, 37 So. 1018; Magness v. State, 106 Miss. 195, 63 So. 352; Butler v. State, 179 Miss. 865, 176 So. 589; Whitt v. State, 210 Miss. 817, 50 So.2d 385.
V. The Trial Court erred in refusing defendant's requested instruction, which is as follows: "The Court instructs the jury for the defendant that every reasonable doubt with reference to any matter connected with this case, which is submitted to the jury for decision, should be resolved by the jury in favor of the defendant and against the State." Hosey v. State, 136 Miss. 5, 100 So. 577.
J.R. Griffin, Asst. Atty. Gen., Jackson, for appellee.
I. The Trial Court did not err in admitting in evidence, over the objection of the appellant, photographs of the deceased, exhibits to the testimony of L.C. Bennett. Hancock v. State, 209 Miss. 523, 47 So.2d 833; Price v. State (Miss.), 54 So.2d 667; Sullivan v. State, 213 Miss. 14, 56 So.2d 93; Wheeler v. State, 219 Miss. 129, 63 So.2d 517.
II. The Trial Court did not err in permitting the introduction of the gun in evidence which was said to be delivered to L.C. Bennett by a man named Bullock, and permitting L.C. Bennett to testify with reference to the gun and rounds of ammunition and empty shell in the gun delivered to the witness Bennett.
III. The Trial Court did not err in permitting the State witness, L.C. Bennett, to testify before the jury and relate what the State witness, Dorothy Williamson, stated had occurred at the time the deceased was shot. Thurmond v. State, 212 Miss. 37, 53 So.2d 44.
IV. The Trial Court did not err in permitting witnesses Dorothy Williamson, Rufus Stacy, and M.B. Pierce to testify in rebuttal, over the objection of the defendant, to immaterial and collateral matters. Holden v. State, 226 Miss. 726, 85 So.2d 208.
V. The Trial Court did not err in refusing defendant's requested instruction. Carr v. State, 192 Miss. 153, 4 So.2d 887.
Upon conflicting testimony, the jury found appellant guilty of murder. The punishment was life imprisonment.
Appellant had some difficulty with the deceased some five years before the homicide. On Friday night before his death on Sunday night, Yates, the deceased, visited the Aragon, a night club operated by appellant and Louise Edwards, and to the rear of which appellant and Louise Edwards lived. On this visit, Louise flirted with Yates, which information was conveyed to appellant on Saturday. Yates again visited the Aragon on Sunday afternoon and again that night. On the latter visit to the Aragon, Yates ordered a beer and later sat down at a table across from appellant. Louise Edwards and Dorothy Williamson were also sitting at the table. Yates told appellant that he understood appellant had been looking for him. When appellant asked who told him, Yates said that he was asked not to tell and that when he made a promise, he kept his word. Appellant then moved his chair backward, pulled a pistol, and shot under the table. Yates arose and ran from the Aragon. The next morning, Yates' body was found across the highway from the Aragon. He had been shot just above the belt line a little to his lift side. The bullet ranged downward and lodged in his right hip.
Appellant and his witnesses gave a different version of the killing, but the jury was fully justified in rejecting that version.
(Hn 1) Appellant complains of the admission in evidence of three photographs. One ground of objection was that the person who made the picture was not introduced and it was not shown that the photographs were made with a standard camera in good condition. It was shown in each instance that the photograph accurately depicted the object or scene purported to be portrayed. It is not necessary to have present the photographer to introduce a photograph, nor to show the kind or condition of the camera. (Hn 2) The inquiry in this respect is whether the photograph accurately represents the place or subject it purports to represent, and this may be shown by any competent witness whose view of the actual scene at the pertinent time enables him to testify that the picture accurately represents the scene.
(Hn 3) But appellant contends that the admission of the photographs was calculated to prejudice the jury and was not pertinent or relevant to the inquiry whether deceased produced the gun and tried to shoot appellant or whether appellant produced the gun and shot the deceased when the latter was unarmed and not attempting to harm appellant. One photograph shows the deceased lying in the grass across the highway from the Aragon, and also shows where the deceased lay with reference to the highway and the Aragon. One is a close view showing a small plot of ground and the body of deceased. The third photograph shows the body of deceased on a table with his clothing removed to show the wound made by the bullet. The first two photographs show the building wherein the shooting took place and its relation to the highway and the place where the body was found. The third showed the place where the bullet entered the body. These facts were pertinent to the inquiry, and were admissible. We find no error in their admission. Cf. Wheeler v. State, 219 Miss. 129, 63 So.2d 517; Price v. State, 54 So.2d 667; Seals v. State, 208 Miss. 236, 44 So.2d 61; Hancock v. State, 209 Miss. 523, 47 So.2d 838; Willette v. State, 80 So.2d 836.
(Hn 4) Appellant assigns as error the admission in evidence of a pistol. Appellant admits he had possession of the gun when the shooting was over, his contention being that he took the gun away from the deceased, and in so doing, the gun fired after appellant had turned the gun in the hands of the deceased. Appellant said he laid it on the counter; that he did not have a gun in the place prior to the arrival of Yates. Witnesses testified that the gun was taken to a rear building at the instance of one Tingle. It was shown the gun was subsequently given Tingle and appellant told him to take it and keep it. Tingle took the gun to a neighbor. Later Tingle went to the neighbor and told him to get the gun, and the neighbor did so and gave it to a policeman who was with Tingle. Tingle said the gun introduced was the gun brought by appellant to the counter after the shooting. It was later shown that the exact gun bearing the same serial number was sold to Louise Edwards a few months earlier, and that the written record of the sale showed Louise Edwards, personally known to the seller, used the name of Mrs. C.B. Jones. The serial number on the gun introduced was the same as the serial number on the sales slip made at the time of the sale to Louise Edwards. Under the circumstances, the gun was admissible. (Hn 5) Nor was it error for the policeman to testify that the gun contained five cartridges and one empty shell. The proof shows one shot was fired at the time Yates was killed.
(Hn 6) The day after the killing, the police took appellant and witness Dorothy Williamson to the scene of the shooting. Dorothy Williamson, the principal witness for the state, in the presence of appellant and several police officers, reconstructed the events immediately before and at the time of the killing, and told what was said and done immediately before, at the time, and immediately after the shooting of Yates. One of the policemen was permitted to relate this to the jury and quoted the words used by Dorothy Williamson when she reconstructed the events and told what had happened the night before when the killing took place. The policeman then testified that upon the conclusion of witness Williamson's demonstration and statements, the appellant was asked if that was correct and if he had anything to say, and that appellant tucked his head and said, "I just don't remember." The admission of the policeman's testimony is assigned as error.
The circumstances were such that the failure of the appellant to deny the accusations made the testimony admissible as an implied confession. (Hn 7) Where accusatory statements are made against a party within his presence and hearing, and which are understood by the accused, and the circumstances are such that it is proper and natural for the accused to deny the accusations, and he has a fair opportunity to reply, a total or partial failure to reply or an evasive answer is admissible in evidence as an admission of the truth of the accusatory statements. This is an exception to the hearsay rule. Thurmond v. State, 212 Miss. 37, 53 So.2d 44; Page v. State, 208 Miss. 347, 44 So.2d 459.
(Hn 8) Other contentions are made, but none of sufficient importance to justify discussion. A review of the entire record reveals ample basis for the jury's verdict. Appellant was ably represented. We find no reversible error.
Affirmed.
McGehee, C.J., and Hall, Lee and Ethridge, JJ., concur.