Opinion
No. 36158.
November 11, 1946. Suggestion of Error continued for further consideration December 9, 1946. Suggestion of Error sustained January 27, 1947.
1. CRIMINAL LAW.
Continuance sought because of absence of witness was properly denied, where such witness gave merely cumulative testimony at former trial and there was no showing that she could be produced at subsequent trial, nor of what her testimony would be, nor of impracticability of showing what her testimony would be.
2. WITNESSES.
A character witness, who testified that defendant's general reputation for peace or violence was good, could be cross-examined on defendant's general reputation for getting into shooting scrapes, as bearing on accuracy and credibility of witness.
3. HOMICIDE.
Evidence on issue of self-defense raised jury questions on whether defendant was guilty of murder or manslaughter, or not guilty.
4. HOMICIDE.
Where jury could have returned a verdict of murder, manslaughter, or not guilty under the instructions and evidence, reviewing court could not disturb a conviction of murder, sustained by sufficient evidence.
ON SUGGESTION OF ERROR. (In Banc. Jan. 27, 1947.) [28 So.2d 854. No. 36158.]HOMICIDE.
Evidence was insufficient to sustain conviction of murder with death penalty.
ROBERDS, J., dissenting.
APPEAL from the circuit court of Hinds county, HON. H.B. GILLESPIE, Judge.
M. Ney Williams, of Raymond, for appellant.
The appellant was entitled to have his case continued until the next term of court on account of the absence of Frankie Robinson, a most material witness for appellant, who was temporarily out of the State of Mississippi at the time of the trial.
Caldwell v. State, 85 Miss. 383, 37 So. 816; Childs v. State, 146 Miss. 794, 112 So. 23; Knox v. State, 97 Miss. 523, 52 So. 695; Brooks v. State, 108 Miss. 571, 67 So. 53; Stokes v. State, 172 Miss. 199, 159 So. 294; Cruthirds v. State, 190 Miss. 892, 2 So.2d 145.
The court erred in overruling the objections of appellant to all questions asked by the State of the witness Kitchens as to Sandy Magee being fixed up in other shooting scrapes, and all answers thereto.
Magee v. State, 198 Miss. 642, 22 So.2d 245; Dodds v. State (Miss.), 45 So. 863; Tucker v. Tucker, 74 Miss. 93, 19 So. 955; McMasters v. State, 81 Miss. 374, 33 So. 2; Davis v. State, 87 Miss. 337, 39 So. 522; Starling v. State, 89 Miss. 328, 42 So. 798; Powers v. State, 156 Miss. 316, 126 So. 12; Turberville v. State (Miss.), 179 So. 340; Brown v. State, 72 Miss. 997, 17 So. 278; Martin v. State, 197 Miss. 96, 19 So.2d 488; McLin v. State, 150 Miss. 159, 116 So. 533; Willoughby v. State, 154 Miss. 653, 122 So. 757; Floyd v. State. 166 Miss. 15, 148 So. 226; Kimbrall v. State, 178 Miss. 701, 174 So. 47; Clark v. State, 181 Miss. 455, 180 So. 602; Irby v. State, 186 Miss. 161, 185 So. 812. Leon L. Shelton H.C. Stringer, of Jackson, for appellant.
When a person guilty of no wrong or provocation is attacked by an antagonist with a deadly weapon and instinctively strikes back with a deadly weapon and kills antagonist, offense is mitigated and made manslaughter instead of murder.
Beasley v. State, 64 Miss. 518, 8 So. 234; Jackson v. State, 79 Miss. 42, 30 So. 39; Combs v. State, 175 Miss. 376, 167 So. 54.
Where witnesses for a litigant disagree on material facts, and the litigant permits the same to go in, he is bound thereby.
Fairly v. Fairly, 38 Miss. 280; Moore v. Chicago, St. L. N.O.R. Co., 59 Miss. 243; Dunlap v. Richardson, 63 Miss. 447; Rutland v. State, 170 Miss. 650, 155 So. 681; Manning v. State, 188 Miss. 393, 195 So. 319; American Brick Co. v. Meador, 161 Miss. 549, 137 So. 488; Chism v. State, 70 Miss. 742, 12 So. 852.
The evidence is insufficient to sustain the charge of murder. If the appellant was and is guilty of any crime known to the law, it could be no greater crime than manslaughter.
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, and Ross R. Barnett, of Jackson, for appellee.
We think the motion for a continuance was insufficient to show, taken in connection with the testimony, that there was any probability that the absent witness would return to Mississippi and be present at the next term of court. It devolved upon the movant, where the witness was shown to be a nonresident, to show, by evidence, that she would probably be present at the next term of court, and the testimony here is insufficient to show such probability. Motions for continuances are addressed to the sound discretion of the court, and, unless there is a showing that this discretion has been abused, this court will not reverse for the overruling of a motion for continuance.
Samuels v. State, 153 Miss. 381, 120 So. 920; Hodgkin v. State, 172 Miss. 297, 160 So. 562; Cox v. State, 138 Miss. 370, 103 So. 129; Sanders v. State, 141 Miss. 289, 105 So. 523; Jones v. State, 168 Miss. 702, 152 So. 479; Lamar v. State, 63 Miss. 265; Henderson v. State, 187 Miss. 166, 192 So. 495.
It is permissible on cross-examination, when testing the good faith and credibility of a character witness, to ask if he has not heard rumors or reports in the community of particular acts of violence imputed to the defendant which are inconsistent with the testimony then being given by the witness regarding the good reputation of the accused as to the particular trait of character inquired about and to ask whether or not he has heard of specific charges of misconduct made against the defendant in the community.
Smith v. State, 112 Miss. 802, 73 So. 793; Magee v. State, 198 Miss. 642, 22 So.2d 245.
The fact that witnesses introduced by a party do not agree with each other throughout is not an impeachment. Witnesses on the same side seldom concur as to all details; and that they do not do so is more often than otherwise in favor of the honesty of their independent versions; for if all agreed in everything, the hearers would likely conclude that the story had been collaborated.
Manning v. State, 188 Miss. 393, 195 So. 319; Weathersby v. State, 165 Miss. 207, 147 So. 481.
Where the testimony for the State in a criminal prosecution tends to establish murder and that of the defendant tends to establish self-defense, but the several witnesses testifying contradict each other or give divergent views of what took place, a jury has a right to believe a portion of one witness' testimony and reject another portion, and this is true of all witnesses, and where by so doing a possible finding of manslaughter is justified it cannot be said that the evidence does not support a conviction of manslaughter.
Triplett v. State, 159 Miss. 365, 132 So. 448.
The testimony of a single witness whose testimony is not unreasonable on its face and whose credibility is not successfully impeached will sustain a conviction though there may be more than one witness testifying in opposition to such witness. The credibility of the witnesses and the weight of the evidence is solely for the jury unless the evidence against the verdict is so strong and the evidence sustaining the verdict so weak as to be unreasonable to the extent of indicating passion, prejudice or bias.
Henderson v. State, 187 Miss. 166, 192 So. 495.
Counsel for appellant assigns a number of errors incident to the trial of this case, although he does not cite any authorities to support his contentions. As far as possible, the reasons assigned should be supported by the citation of authorities or they will not be considered, unless it is clearly apparent that they are well taken.
Johnson v. State, 154 Miss. 512, 122 So. 529.
Leon L. Shelton and H.C. Stringer, both of Jackson, and M. Ney Williams, of Raymond, for appellant, on suggestion of error.
When a person guilty of no wrong or provocation is attacked by an antagonist with a deadly weapon and instinctively strikes back with a deadly weapon and kills antagonist, offense is mitigated and made manslaughter instead of murder. This natural and instinctive impulse to immediately strike back is characteristic of almost the entire animal kingdom, so that it is said that even the worm will turn. It is, therefore, out of consideration of this so-called frailty of nature that in such cases the law mitigates and makes it manslaughter instead of murder.
Combs v. State, 175 Miss. 376, 167 So. 54. Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, and Ross R. Barnett, of Jackson, for appellee, on suggestion of error.
The jury, of course, were the triers of fact, charged with the duty of rendering a verdict according to the evidence. They were the sole judges of the weight and credibility of the witnesses. In the exercise of this judgment, they accepted the testimony offered on behalf of the State as presenting the truth of what occurred, and it is not for us to say that their verdict should be set aside unless manifestly wrong and against the overwhelming weight of the testimony. In this case, it might appear that the State's case was substantially based on a discredited witness, but the jury had its responsibility, as stated, and apparently believed him to be telling the truth on this occasion. We cannot measure how much they believed, or how little. Nor can we appraise how little or how much of the evidence on behalf of appellant the jury believed. The jury had the right to believe portions of testimony of witnesses. Even were we able to say that had we been members of the jury we might have returned a different verdict, but to which we do not commit ourselves, an appellate court cannot disturb a verdict of guilty, merely because they would have rendered an opposite verdict had they been sitting in the place of the jury.
Hill v. State, 199 Miss. 254, 24 So.2d 737; Witt v. State, 159 Miss. 478, 132 So. 338; Henderson v. State, 187 Miss. 166, 192 So. 495; Triplett v. State, 159 Miss. 365, 132 So. 448; Jackson v. State, 105 Miss. 782, 63 So. 269.
See also Carter v. State, 199 Miss. 871, 25 So.2d 470; Dean v. State, 173 Miss. 254, 160 So. 584; Wright v. State, 193 Miss. 119, 8 So.2d 455; Shimniok et al. v. State, 197 Miss. 179, 19 So.2d 760.
Argued orally by H.C. Stringer, for appellant, and by Ross R. Barnett, for appellee.
Magee was convicted of the murder of Ernest Conn, sentenced to death, and he appeals.
A former appeal was before this Court, Magee v. State, 198 Miss. 642, 22 So.2d 245.
A motion for continuance because of the absence of Frankie Robinson, a witness, was denied by the lower court. Appellant says that was error. Frankie testified at first trial. The record discloses that her evidence was merely cumulative, and it is not shown that she could be produced at a subsequent trial, and on the motion for a new trial no affidavit of this witness was produced showing what her testimony would be, nor was there any showing that it was impracticable to produce such affidavit. Under these circumstances the Court was correct in overruling the motion. Samuels v. State, 153 Miss. 381, 120 So. 920; Hodgkin v. State, 172 Miss. 297, 160 So. 562; Lamar v. State, 63 Miss. 265; Henderson v. State, 187 Miss. 166, 192 So. 495.
Appellant introduced as a character witness one W.L. Kitchen, who testified that Magee's general reputation for peace or violence was good. In another place he said, "So far as I know it was good." On cross-examination Kitchen was asked, "State whether or not it isn't true that Sandy Magee, this boy sitting right here, had reputation out there, general reputation in the community where he lived for getting into shooting scrapes." Objection to this question was overruled. The witness answered, "I heard of him being in a shooting scrape." Appellant says this action of the court was reversible error. The question and answer were competent here. If Magee had the general reputation of engaging in shooting scrapes, so known to the witness, that fact would bear not only upon the accuracy of the witness's conclusion that his reputation for peace or violence was good, but also upon the witness's credibility in so stating.
In the opinion in the former case [ 198 Miss. 642, 22 So.2d 246], this Court stated that: "It is permissable on cross-examination, when testing the good faith and credibility of a character witness, to ask if he has not heard rumors or reports in the community of particular acts of violence imputed to the defendant which are inconsistent with the testimony then being given by the witness regarding the good reputation of the accused as to the particular trait of character inquired about, * * * and to ask whether or not he had heard of specific charges of misconduct made against the defendant in the community * * *," although it would be error to go into details of the specific incidents. The question and answer under discussion came within the above rule. Smith v. State, 112 Miss. 802, 73 So. 793.
The main contention upon which Magee relies for reversal is that, under the evidence in the case, the jury should not be permitted to find him guilty of any crime, but if so, not a greater crime than manslaughter. He admitted that he shot and killed Conn, but he said he did so in self-defense. Without undertaking to detail the evidence, it is enough to say that the testimony on the part of the State amply supports the verdict of murder; that on the part of Magee would have sustained a conviction of manslaughter or an acquittal. The State obtained an instruction submitting to the jury the question of murder or manslaughter. Defendant's instructions explained the distinction between murder and manslaughter, and asked for an acquittal. Under the instructions and the evidence the jury could have returned a verdict of murder, manslaughter or not guilty. It found appellant guilty of murder, and there being sufficient evidence to sustain that verdict, the contention must be overruled.
The judgment will be affirmed, and Friday, December 20, 1946, is set for the date of execution.
Affirmed. Sydney Smith, C.J., did not participate in this decision.
This case has been under earnest consideration and reconsideration by us since October 28, 1946. On November 11, 1946, the judgment and sentence was affirmed, but with reluctance on the part of the majority of the members of the Court, two of whom expressly voiced that reluctance by a specially concurring opinion. Upon the coming in of the suggestion of error and a reconsideration of the case upon it, that reluctance was found to have grown to something more than reluctance, two of the members, other than the two who expressed themselves in the specially concurring opinion, having come to have some serious doubt whether the charge should be allowed to stand for a higher offense than manslaughter. We thereupon set aside the judgment of affirmance and called for a reply to the suggestion of error, and this having come in, together with appellant's rejoinder to the reply, we have again gone over the case, and have come to the final conclusion that the verdict should be set aside and a new trial awarded.
When the case was first here, Magee v. State, 198 Miss. 642, 22 So.2d 245, it was supposed by us that the death sentence was carried by the verdict because of the erroneous and inflammatory evidence dealt with by the Court on that appeal. It did not occur to us that with that evidence eliminated, any properly selected jury, wholly without bias, would again return a verdict authorizing the infliction of the death penalty. All of us concur that the present record does not justify the death penalty, some of us feeling that the execution of a death sentence under the record in this case would be a reproach upon justice.
This is no case of an assassination, or of a deliberate and premeditated urge to murder, or a homicide committed in the furtherance of another crime, or anything of the like. A considerable number of negroes were gathered together after night in the colored department of the restaurant operated by deceased and some of them were drunk or drinking, among whom was a brother of the appellant. This brother had a pistol of small calibre, and appellant, in order that his brother might do no harm with the weapon, took it from him. Appellant had no purpose, and manifested none, to use the pistol himself nor to engage in any altercation, and he did nothing to provoke any altercation. He had simply taken the pistol and put it in his pocket. But deceased, under a mistaken impression, jumped over the counter armed with a large calibred pistol, and intruded himself into what was going on, with the result that a general melee immediately broke out, with more than ordinary confusion; which progressed in a continuous and unbroken course of events, until within an extremely short time the deceased, the appellant, and others found themselves outside the restaurant on or just beyond the sidewalk, and in semi-darkness.
The version of the appellant, supported by other witnesses, was that at the point last mentioned appellant, as a consequence of the melee, was down on his knees, and that the deceased was standing almost immediately over him, trying to use the large pistol above mentioned, but which, according to the undisputed proof, had become jammed, although this was unknown to appellant, and that from his position on his knees appellant fired three shots from the pistol which he had taken from his brother, as already stated. The conviction, with sentence of death, rests upon the contrary version of Stokes, the only witness for the State who testified to that version, and his story was that appellant was standing when he fired the three shots, first about ten feet from the deceased, the second when appellant had made a nearer approach, and the third and fatal shot when appellant, still standing, had come to a point almost against the body of the deceased.
The State, in its reply to the suggestion of error, in its effort to meet the undisputed physical fact that the bullet causing the fatal wound ranged upward, has been compelled to resort to conjecture, nor has it satisfactorily met the second point mentioned in the specially concurring opinion, besides which there are other discrepancies in Stokes' testimony emphasized in appellant's rejoinder which it seems to the majority of us has not been, and cannot be, adequately met upon the present record, all of which leads us to the stated final conclusion, and after the prolonged reconsideration mentioned, that a death sentence should not be allowed to stand on the doubtful and undependable and unsupported testimony of this witness, Stokes, and that the verdict should be set aside as against the weight of the evidence, and it will be so ordered. We do not pursue the facts in further detail, since the case may be retried.
The suggestion of error is sustained, the verdict and judgment is reversed and the case remanded.
Reversed and remanded.
Sydney Smith, C.J., did not participate in this decision.
The opinion of the Court by Judge Roberds is correct in the statement that, "Under the instructions and the evidence the jury could have returned a verdict of murder, or manslaughter or not guilty," and the main opinion is correct, further, in the conclusion that since there is enough evidence to sustain the conviction of murder, and inasmuch as it cannot be said that the verdict is against the overwhelming weight of the evidence, it is not within our province as an appellate court to interfere.
But to my mind the verdict is against the preponderance of the evidence. There were four eye-witnesses to the actual homicide, and only one of the four witnesses sustains the verdict as rendered, and his version contains two outstanding infirmities. It is undisputed that three shots were fired by appellant, and we may accept the State's theory that it was the third shot that caused death. It is undisputed that this shot ranged upward, striking no bone in its course, and this would force the conclusion that the probabilities were that the shot was fired from a position below the point where the bullet struck the deceased, which would corroborate the testimony of the other three witnesses that appellant was on his knees, with the deceased standing over him, and would thus disprove what Stokes said as to the positions of the parties, and would displace his version as having any great probative force.
Stoke's testimony is also that appellant's brother had hold of the deceased and was struggling with him, when and while all three of the shots were fired by appellant, the first shot, according to Stokes, being made when appellant was ten feet away from the deceased and appellant's brother, and that thereupon appellant closed in, firing the next two shots as he approached the other two men. In other words, it was Stoke's version that in the semi-darkness appellant was firing at the deceased when and while the positions of the deceased and appellant's brother made it of equal likelihood that the shots would strike the brother rather than the deceased, a story which requires the exercise of some considerable fortitude — too much for me — to believe.
There are other discrepancies in the State's case, but what has been said is enough to disclose that, even if a verdict of murder can be squeezed through, it is not a case for the infliction of the death penalty, and to so state ought to be a privilege of the appellate court in the interest of ultimate justice, even if the Court itself cannot directly intervene.
L.A. Smith, Sr., J., concurs in the above.
While I concur in the opinion per curiam this day delivered, it is my judgment that when a jury in a homicide case returns a verdict with the death sentence and that sentence is so grossly unjustifiable under the facts as is the case here, the Court should consider this as all the evidence necessary that the verdict was the product of prejudice or bias or passion or some other inadmissible motive or consideration, contrary to the due process clauses of state and federal constitutions, which require impartiality in judicial tribunals, and that this should be announced as a rule of adjudication applicable to this and to all homicide cases in the future. If this were done in this case, nothing further need be said.
I am naturally averse to balancing my judgment against the collective judgment of my brethren, but intellectual honesty compels me to say, after a review of this record, that I think the guilt or innocence of the defendant herein was a question for the jury.
The testimony of the State showed Magee to be guilty of murder; that of the defendant made a case of self-defense. The State relied mainly upon the testimony of one Stokes. It is not shown that he was in any way biased in favor of the State. In fact, being of the same race as the defendant, presumably he felt kindly towards him, nothing appearing to the contrary. In addition to Stokes' testimony, there were physical facts supporting the contention of the State. However, I deem it unnecessary for me to undertake to detail the testimony. The judgment of a majority of its members is the judgment of the Court.