Opinion
No. 32711.
May 10, 1937.
1. WITNESSES.
Refusal to admit impeaching evidence that eyewitness to homicide had bad reputation for truth in community in which eyewitness formerly lived held reversible error, notwithstanding that impeaching witness did not know eyewitness's reputation in community to which eyewitness subsequently moved.
2. HOMICIDE.
Firing into house in nighttime with knowledge that house was occupied and that persons were sleeping therein was done in commission of act evincing a reckless disregard for human life, and with intent to injure some person therein, and town marshal living in house had such probable cause to believe that person firing gun had committed felony as would warrant marshal in arresting person without warrant (Code 1930, sections 793, 985, 1224, 1227).
3. HOMICIDE.
Instruction that town marshal did an unlawful act when he fired into automobile while attempting to arrest occupants who had immediately prior thereto fired into marshal's house with reckless disregard of human life and with intent to injure some person therein held reversible error, since marshal was warranted in making arrest, under statutes, without warrant (Code 1930, sections 1224, 1227).
4. HOMICIDE.
Evidence that deceased, whom town marshal killed while attempting to arrest deceased without warrant immediately after deceased fired into town marshal's house in nighttime, had stated some six months before, that deceased would be tried for killing marshal and not for possessing intoxicating liquor if liquor prosecution were deferred, was relevant as indicating hostile state of mind and furnishing motive on part of deceased to kill marshal.
APPEAL from the circuit court of Calhoun county. HON. T.H. McELROY, Judge.
Patterson Patterson, of Calhoun City, and Creekmore, Creekmore Capers, of Jackson, for appellant.
In support of appellant's contention that he was in his home asleep when someone fired into it, he offered the testimony of himself, his son and his daughter-in-law, all interested witnesses. The testimony showed that Mrs. Ellenberg, a disinterested party, was in the home at the time. What would be the natural effect of her failure to testify on the jury? Certainly, the jury, as reasoning men, would naturally conclude that Mrs. Ellenberg's testimony would not support the appellant, or he would have offered it; or that she knew nothing that would throw any light on the situation. She testified out of the hearing of the jury, on objection of the state, strongly corroborative of the appellant's contention, and of his testimony and that of his son and daughter-in-law, as to all that occurred until the appellant had left the room the second time with a shot gun and flashlight, and until she heard appellant say, "Halt, Sledge," followed by two shots. She did not see what occurred out in the highway when the killing took place as she remained in the bedroom. After she had testified at length before the court, the court excluded her testimony, saying: "The court will rule this way: So far as this witness' testimony goes that it shows there was a misdemeanor committed, but it does not show that there was any knowledge who committed the misdemeanor. Therefore, I will sustain the objection." In this ruling we respectfully insist the court was in grave error in two particulars. First, in excluding the testimony, and second, in ruling that the testimony showed there was a misdemeanor, only, committed.
Brown v. State, 88 Miss. 167, 40 So. 737; Marley v. State, 109 Miss. 717; McCormack v. State, 159 Miss. 610, 132 So. 757; Cartee v. State, 162 Miss. 263, 139 So. 618; Carr v. State, 157 Miss. 102, 166 So. 363.
It was error to give the instruction as follows: "The court charges the jury for the State that even though you may believe that the deceased shot into the house of the defendant some few minutes before the fatal shooting, the court now says to you that that of itself is no justification or authority for the defendant, even though he was an officer of the law, to shoot at the car or casing of the deceased as it passed the defendant or to kill deceased, and that when the defendant so shot at the car or casing he was then and there doing an unlawful act although he only intended to bring the car to a halt and arrest the deceased."
Cartee v. State, 162 Miss. 263; Section 988, Code of 1930.
The lower court ruled, early in the progress of the trial, that the shooting into the house of appellant was only a misdemeanor and the entire trial was conducted in obedience to this ruling and the instruction complained of was given on that theory. Then the question arises: Was the act of the deceased in firing into the home of appellant a misdemeanor or a felony? Or, to state it another way, if the shot fired into the window casing had gone a few feet further north and killed Lantrip, would the one who fired the shots from the highway into the house have been guilty of murder? If so, the fact that Lantrip was not killed operates only to reduce the offense from murder to assault and battery with intent to murder.
Section 985, par. B, Code of 1930; Talbert v. State, 172 Miss. 243, 159 So. 549; White v. State, 169 Miss. 332, 153 So. 387; Banks v. Texas, 211 S.W. 217.
In the case of Washington v. State, 60 Ala. 10, the court held that if a person intentionally discharged a firearm into a dwelling house in which he has reason to believe there are people living, thereby killing a person therein, he is guilty of murder though he had no intention to kill or injure anyone.
State v. Capps, 134 N.C. 622.
The instruction was in the teeth of section 1227, Code of 1930, wherein it is provided that any person may arrest anyone without warrant when such one has committed a felony though not in his presence.
The instruction complained of gave undue prominence to the particular facts stated therein.
64 C.J. 682; Prine v. State, 73 Miss. 838; Gordon v. State, 95 Miss. 543, 49 So. 609; Potera v. Brookhaven, 95 Miss. 774, 49 So. 617; Moorehead v. Gilmer, 153 Miss. 467, 121 So. 143; Gurley v. Tucker, 170 Miss. 569, 155 So. 189.
The court below was in grave error in excluding testimony of R.A. Stafford.
This witness definitely and positively testified that he knew the general reputation of the witness Kincaid in the community where he lived; that it was bad and therefore he would not believe the witness on oath.
It is too well settled in Mississippi that a witness may be impeached by his general reputation for truth and veracity for it to be necessary to cite authority. It was certainly a question for the jury to determine on the testimony of the witness whether he, in fact, had sufficient knowledge of the reputation of the witness to testify and it was not permissible for the court, as a matter of law, to say that the testimony was of no probative value nor can it be said that the exclusion of the testimony was error without injury, for the State's whole case depended on the testimony of the witness Kincaid.
Norwood v. Andrews, 71 Miss. 641.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
It is well enough at this point to refer to the rule of this court that a trial court's ruling will be upheld if the right result has been reached, even though a wrong, insufficient or no reason has been given for such ruling.
Carter v. State, 167 Miss. 311, 145 So. 739; Tucker v. State, 103 Miss. 117, 60 So. 65; Mott v. State, 123 Miss. 729, 86 So. 514.
When Mrs. Ellenberg's testimony was offered there was no testimony to show that deceased had made any act of aggression and consequently the state of mind of the parties toward each other was not relevant. Her testimony might have been competent later, but it was not when it was offered and it was never re-offered after the aggressor was in issue.
It is a familiar rule of law that one, even though he be an officer, has no right to arrest a party for a misdemeanor unless the misdemeanor is committed in his presence or he has a warrant of arrest.
One may not use firearms to effect the arrest of a misdemeanant, even though fleeing from arrest, or to re-take him after he has been arrested.
Brown v. Weaver, 76 Miss. 7, 23 So. 388; Kelly v. State, 156 Miss. 535, 126 So. 194.
The instruction complained of merely advises the jury of this rule of law. It certainly cannot be distorted into a charge on the weight of the evidence. Assuming that deceased was the one who shot the house of appellant and assuming that appellant knew that deceased was the one who did it, he still would have had no right to resort to the use of firearms to effect his arrest, unless such act constituted a felony.
Faulkner v. State, 170 Miss. 195, 154 So. 338; Sections 789 and 862, Code of 1930.
We submit that the trial court was not in error in assuming the position it did, nor was the instruction erroneous insofar as it undertook to present to the jury the proposition that such an act was a misdemeanor and that appellant had no right, under the law, to shoot the deceased, or to shoot at him in order to effect his arrest though he had known that deceased was the one who shot his house.
In connection with this instruction, appellant argues that it is erroneous in the further respect that it singles out a part of the evidence and charges on the weight of it. If the alleged act of deceased in shooting the house did, in fact, constitute, at most, a misdemeanor, then it must be conceded that the instruction states a correct rule of law. To refuse this instruction for the State and thus, by implication, say to the jury that the defendant had the right to use firearms, under such circumstances, would have the effect of discarding old and well established rules of law and at the same time allow this defendant the right to use his unlawful act as a defense to the crime charged against him. To refuse this instruction would be tantamount to making new law for the benefit of this defendant. We do not doubt that the law applies to all alike. If such a defense is unavailable generally it was unavailable to this defendant and he had no right to expect the jury to release him from liability resulting from his unlawful act. And since the instruction, as we see it, states a correct rule of law, it cannot be said to charge on the weight of the evidence.
Argued orally by H.H. Creekmore, for appellant, and by W.D. Conn, Jr., for the State.
Appellant, J.L. Lee, jointly with John Lantrip, was indicted in the circuit court of Calhoun county on a charge of murdering one Ellis Sledge. Upon a separate trial, Lee was convicted and sentenced to serve a life term in the State Penitentiary, from which he prosecutes this appeal.
The testimony is voluminous, and will not be set out in detail. The killing of Ellis Sledge by J.L. Lee occurred at night on September 13, 1935, about 2:30 or 3 A.M. The testimony is conflicting, that in support of the State's theory being to the effect that a number of witnesses heard a series of shots in rapid succession near the Lee home in the town of Bruce, and one witness, Prentiss Kincaid, claimed to have been an eyewitness, testified that he was traveling along the highway from Calhoun City through Bruce, and saw two men shooting into a car occupied by Ellis Sledge; that he recognized Lee, but did not know the other party. This witness was contradicted both by statements made outside the court, and by the impeachment of his character for truth and veracity.
The testimony for the appellant is substantially as follows: At about 2:30 or 3 at night two shots were fired from a shotgun into the home of J.L. Lee, one striking near a window in a room occupied that night by John Lantrip. The appellant, his wife, daughter, and another lady, were occupying rooms back of the room shot into. Immediately upon the shooting, Lee arose, took his pistol and went out in front, saw a car proceeding north which he recognized, and which stopped in front of Sledge's home, which was near Lee's home. Lee's son and daughter-in-law lived nearby; heard the shooting; got up and saw this car proceeding north and saw it stop at the home of Sledge. Lee then went into his home, put on his clothes, loaded his gun with buckshot, and took it and a flashlight and went out into the road, and asked his son to keep an eye on the car then in front of Sledge's home. Presently the car was turned and came back South. In the meantime, Lee had crossed the highway in front of his house, and as the car approached he flagged it with his flash-light, but instead of stopping, the car was speeded up, and Lee called out, "Stop Sledge," and as the car was not stopped, Lee fired into the casing on the wheel puncturing it and causing the car to stop. Thereupon, Lee went to the right-hand side of the car, and saw Sledge therein armed with a shotgun, which he drew, and Lee pushed this shotgun to one side and it was discharged, and Lee fired several shots into Sledge's body. Lee, who was a marshall of the town of Bruce, then sent for the mayor, who came to the scene, as did several other parties, and an ambulance was sent for to take Sledge to a hospital, but he died before reaching it. The mayor took charge and refused to let the car be moved. It was examined the following morning, and it was shown that the casing on the rear wheel was punctured, and there were bullet holes in the front of the car, just below the windshield.
A physician sent for immediately after the shooting, testified that there were wounds on deceased's arm and breast, and also in his side just above his hip. There was also testimony to the effect that the forehead of the deceased was bruised, but the undertaker said there were no wounds nor bruises on his head.
The lady who was in Lee's home, Mrs. Ellender, was offered as a witness, but her testimony was excluded. It was to the effect that she heard the shots fired into Lee's home; that Lee ran out with his pistol, and afterwards returned to the house, put on his clothes, took his flash-light and gun and went out again; that she heard Lee call to Sledge to stop, and heard the shots, but she did not see any of the shooting.
The appellant offered Drew Cannon as a witness, and he testified that prior to the killing which occurred in September, 1935, he and Lee served a search warrant on Sledge, and that during the progress of the search he had a pump gun in his hand which the witness took from him, and that Sledge, with a vile epithet, said that, "if Lon Lee pokes his head around here I intend to kill him — I intend to shoot his head off." On objection, this statement was excluded as being too remote, and because it was not communicated to the appellant.
Appellant then offered Jess Collins, who testified that in the spring of 1935, he went to Sledge with a purpose of trying to sell him a ham, and heard him say that if he could get Lee killed for $100 he would pay $25 on it, This testimony was excluded by the court on the State's objection that there was no threat on the part of the deceased and was too remote.
Another witness testified that he had a talk with Sledge at his café in February or March, 1935, and that Sledge asked this witness, since he had been boosting for the new judge, if he would go to court and try to get the judge to hold up Sledge's fine. This witness told Sledge that he would be glad to do so, but that Morris was the man to do that, and that Sledge then said, "He stuck me once and I have no confidence in him. . . . If I can get it held up for six months they may be prosecuting me for killing Lon Lee, and will not be prosecuting me for having a liquor joint." This witness said that he later told appellant what Sledge had said. This testimony was given out of the hearing of the jury, and on objection, the court held that only the threat was competent.
The appellant sought to impeach the witness, Kincaid, by the testimony of R.A. Stafford, a deputy sheriff, who said he lived 15 miles northwest of Pontotoc; that he knew, and had known for about eight years, the witness, Prentiss Kincaid, and that his reputation for truth and veracity was bad, and that he would not believe him on oath. On cross-examination he testified that it had been two or three months since he had heard Kincaid's reputation for truth and veracity discussed. This testimony was, by the court, ruled out, because the witness did not know Kincaid's reputation in the community to which he went after leaving the community where he was known by Stafford.
The testimony as to the witness, Kincaid, is vital, he having claimed to be an eyewitness to the killing, and if the impeaching evidence was believed by the jury, there might have been a different verdict. We think the court below should have permitted this impeaching evidence to go to the jury, although the witness was unable to say what Kincaid's reputation was in the community into which he had moved, some six months before. In Norwood Butterfield Co. v. Andrews, 71 Miss. 641, 16 So. 262, it was held that it is competent to show the bad character of a witness for truth and veracity in a neighborhood where he had lived for many years, and from which he had moved two years before. That was a much longer period than the one in the case at bar, as Kincaid, as stated, had been away from the community in which he had lived for some time only about six months.
For the State, the court below granted the following instruction: "The court charges the jury, for the State, that even though you may believe that the deceased shot into the house of the defendant some few minutes before the fatal shooting, the court now says to you that that of itself is no justification or authority for the defendant, even though he was an officer of the law, to shoot at the car or casing of the deceased as it passed the defendant, or to kill deceased, and that when the defendant so shot at the car or casing, he was then and there doing an unlawful act, although he only intended to bring the car to a halt and arrest the deceased." The giving of this instruction is assigned as error.
The evidence for the defendant, if believed by the jury, is sufficient to warrant a finding that Sledge shot into Lee's home twice, at night, at a time when the house was occupied, and that it was competent to show the state of Sledge's mind and his probable intent in thus shooting into Lee's house. It is difficult to see upon what theory the court held, under the circumstances disclosed by the record, as it did in this case. If the shot fired into the room where Lantrip was sleeping had killed him, it could hardly be doubted that it would constitute murder. Section 985, Code 1930, defines murder as the killing of a human being without the authority of law, when done "in the commission of an act eminently dangerous to others, and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual."
Taking the fact that Sledge lived near Lee, knew the situation of the house and that it was occupied, his firing into the house was done in the commission of an act which evinced a reckless disregard for human life. Under section 793, Code 1930, it is provided that every person who shall design and endeavor to commit a crime and does any overt act towards its commission, but fails, shall on conviction, where no provision is made by law, be punished as follows: If the offense be capital, by imprisonment not exceeding ten years; if the offense attempted to be committed be punishable by imprisonment, or by fine and imprisonment, then the attempt to commit such crime shall be punishable for a period, or a fine, not greater than is prescribed for the actual commission of the attempted offense. It thus clearly appears that there was a high degree of probability that Sledge fired into Lee's house with a reckless disregard of human life and with the intent to injure some person therein.
Under section 1224, Code 1930, arrests for crimes may be made by the sheriff, his deputy, or by any constable or conservator of the peace in his county, or by any marshal or policeman of a city, town, or village, or by private persons. Section 1227 provides that such officers may arrest without warrants, for indictable offenses or breaches of the peace, or where a felony has been committed, and such officer has reasonable ground to suspect some person of having committed it, he may arrest such person. The evidence shows that the gun of the deceased had one empty and one loaded shell, and that there were two empty shells of the same caliber as this gun on the seat of the car.
These facts, if believed by the jury, would certainly constitute probable cause for believing that the deceased committed a felony such as would warrant the appellant in making an arrest without a warrant, consequently it was error for the court to instruct the jury that the appellant was doing an unlawful act when he fired into the car occupied by Sledge. Certainly any person or officer would reasonably believe that a person who fired into a house, where persons were sleeping, at night, was committing a felony and intended to kill somebody. As stated, the intent of Sledge's mind was a material part of the evidence in this case. Under the circumstances of this case, could a reasonable man believe other than that the deceased's mind was fatally bent on mischief?
In Stephens "Digest of the Law of Evidence," Fourth Edition, as reported in American and English Encyc. of Law, volume 7, page 42, et seq., it is said that "Evidence may be given in any proceeding of any fact in issue, and of any fact relevant to any fact in issue, unless it is hereinafter declared to be irrelevant, etc. . . . Where there is a question whether any act was done by any person, the following facts are deemed to be relevant, that is to say, Any fact which supplies a motive for such an act, or which constitutes preparation for it."
It appears from the evidence that, when the premises of Sledge were searched in December, intoxicating liquor was found, for which he had been convicted in a justice of the peace court and had appealed to the circuit court. As stated, it was attempted to be shown that he was trying to arrange to have his prosecution deferred, and stated that he would be tried, if his prosecution was deferred, for killing Lee, and not for having intoxicating liquor in possession. This certainly indicated a hostile state of mind; furnished a motive on the part of Sledge to kill Lee, and was relevant to the issue. In Lee v. State, 160 Miss. 618, 134 So. 185, 191, this court, quoting from 6 Encyc. of Evidence, page 744, said that "It is competent for the defendant to show any previous or concurrent facts and circumstances which reasonably tend to increase or intensify a recent provocation. Previous insults and provoking facts, although not of themselves competent, may be admissible after the insult immediately causing the homicide has been proved, as giving character to the last insult, and showing the state of the accused's mind."
See further as illustrating these principles, the cases of Brown v. State, 88 Miss. 166, 40 So. 737; Marley v. State, 109 Miss. 717, 69 So. 210, and McCormick v. State, 159 Miss. 610, 132 So. 757. See, also, 6 Encyc. Evidence, pp. 765, 766.
We think the court below erred in the respects indicated, and that justice requires that a new trial be had. Of course, the proof for the State, if believed by the jury, is sufficient to convict, but we are satisfied that the appellant's rights were violated, and that on a new trial a different verdict may be reached.
Reversed and remanded.