Summary
In Micker v. State, 168 Miss. 692, 152 So. 286 (1934), we expressly held the two-theory instruction as phrased in Thompson ("even though the hypothesis of guilt be the more probable") to be an inaccurate statement of law in any case.
Summary of this case from Goff v. StateOpinion
No. 30847.
January 29, 1934.
1. CRIMINAL LAW.
Testimony given at preliminary hearing at which defendant was present could not be relied on motion for new trial as newly discovered evidence.
2. CRIMINAL LAW.
Reviewing court must presume that defendant seeking new trial trial for testimony given at preliminary hearing was present at hearing.
3. CRIMINAL LAW.
Defendant who failed to obtain information at trial as to testimony of witness given at preliminary hearing held not to have exercised due diligence requisite for granting of new trial for newly discovered evidence, where brief transcript of witness' testimony was available at trial and witness was then cross-examined.
4. HOMICIDE.
Evidence held sufficient to sustain conviction for murder.
5. CRIMINAL LAW.
Instruction based upon theory that defendant's witnesses were sole eyewitnesses to homicide held properly rejected, where state offered an eyewitness.
6. CRIMINAL LAW.
Instruction to jury to accept reasonable hypothesis consistent with innocence, though hypothesis of guilt was more probable, held properly refused, where state relied principally on testimony of eyewitness.
APPEAL from Circuit Court of Warren County.
P.C. Canizaro and G.L. Larr, Jr., both of Vicksburg, for appellant.
The weight of authority seems to be in favor of granting a new trial where the newly discovered evidence goes to show that the verdict was based on mistake or perjury; so that because of this, the case has never been tried on its merits and therefore the defendant did not receive the benefit of a fair trial.
Powell v. Com., 33 A.L.R. 553, note; Pettine v. New Mexico, 119 C.C.A. 581, 201 Fed. 489; Bussey v. State, 69 Ark. 545, 64 S.W. 268; State v. Washington, 108 La. 226, 32 So. 396; State v. Myers, 191 N.W. 597; State v. Moberly, 26 S.W. 364; People v. Fridy, 31 N.Y.S. 399; State v. Powell, 98 P. 741; Buckner v. State, 32 So. 920, 81 Miss. 140; Watson v. State, 50 So. 627, 96 Miss. 369; Middleton v. State, 113 So. 625, 22 Ala. App. 146; Inman v. State, 115 So. 704, 22 Ala. App. 344; State v. Glover, 73 So. 843, 140 La. 726; Barrentine v. State, 51 So. 275; 16 C.J. 1205.
The evidence is not sufficient to warrant a conviction.
Taking the state's evidence in this case as being true, we submit that the killing was not a deliberate, malicious, and willful killing such as to come within the above definition, and that the only crime the appellant could possibly be guilty of, would be manslaughter only.
The court erred in refusing the appellant the following instruction: "The court instructs the jury that where two reasonable hypothesis arise from and are supported by the evidence in this case, one consistent with the defendant's innocence, it is your duty to adopt the one consistent with innocence, although the other be the more probable."
Weathersby v. State, 147 So. 481; Thompson v. State, 35 So. 689.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
The motion for a new trial was accompanied by the affidavits of counsel for defendant, but is not supported by the affidavit of the defendant himself. This, or sworn testimony to the same effect, is necessary, or else this court will hold that the trial court committed no error in overruling the motion.
Grady v. State, 158 Miss. 134, 137 So. 117; Salmon v. State, 151 Miss. 539, 118 So. 610; Queen v. State, 152 Miss. 723, 120 So. 838; Lipscomb v. State, 76 Miss. 223, 25 So. 158; Brown v. State, 60 Miss. 447; Harris v. State, 61 Miss. 304; Long v. State, 163 Miss. 535, 141 So. 591; Hilbun v. State, 148 So. 365.
This is not newly discovered evidence. This defendant was present at this preliminary hearing and heard these witnesses testify and he cannot now be heard to say that the testimony given at that time is newly discovered evidence, so far as he is concerned.
Grady v. State, 158 Miss. 134, 137 So. 117.
The details surrounding this homicide are related by eyewitnesses. No circumstantial evidence is relied on to sustain the conviction. In this state of case the instruction which was requested is inapplicable here, — this court having heretofore held that it is only proper to give this instruction in cases where circumstantial evidence is relied on to sustain the conviction.
Williams v. State, 163 Miss. 475, 142 So. 471; Irving v. State, 100 Miss. 208, 56 So. 377; Smith v. State, 101 Miss. 283, 57 So. 913; Simmons v. State, 106 Miss. 732, 64 So. 721; Hogan v. State, 127 Miss. 407, 90 So. 99.
The appellant was convicted in the circuit court of Warren county on a charge of murder, and was sentenced to the state penitentiary for life; and from this conviction and sentence he prosecuted this appeal.
The testimony offered by the state and by the appellant was sharply conflicting. One of the witnesses introduced by the state testified that he came upon the appellant and the deceased, Jeanette Nelson, in the public road where the killing occurred; that as he approached them, and when he was about twenty yards from them, he heard the appellant curse the deceased; that when he was within about twenty feet he saw the appellant strike the woman and knock her down; that when he struck the deceased she was making no demonstration, hostile or otherwise, towards him, and had no weapon in her hand. He further testified that, after she was struck and knocked down, the said Jeanette Nelson got up, called the appellant by his name, and, prefacing the remark with a vile oath, said to him, "I know I am going to kill you now;" that the appellant ran across the road, saying, "Don't let this woman kill me;" that the woman then went in the opposite direction, and, after walking about thirty-five yards, fell to the ground where she died. He further testified that he (the witness) and the appellant went to where the deceased had fallen; that the appellant then had an open pocketknife in his hand, which was bloody; that the appellant took an envelope out of the dead woman's hand, stated that he had killed her, asked how to get out of that county, and immediately left the scene. About a week later he was arrested in Coahoma county, about one hundred fifty miles from the scene of killing. The proof shows that the deceased was stabbed in the chest with some sharp instrument; one of the bones therein being severed.
The appellant admitted that he stabbed the deceased with his pocketknife. He testified that she attacked him with an ice pick, and that he cut her at a time when it appeared to him that it was necessary to do so to avoid losing his own life, or suffering some great bodily harm at her hands. An ice pick was found by the side of the road near the scene of the killing, and there was other testimony to support the appellant's version of the facts.
The appellant first contends that the court below erred in overruling a motion for a new trial which was based upon the ground of newly discovered evidence. This purported newly discovered evidence was contained in a transcript of the stenographic notes of the testimony of Lige Lacey, one of the state's witnesses, given at the preliminary hearing of the cause in the county court, the said transcript being attached to the motion as an exhibit thereto. This transcript showed that the testimony of this witness in the county court was in material respects different from that given by him at the trial of the cause in the circuit court, and it was desired, upon a new trial, to use portions of the transcript to impeach the credibility of the witness. The motion for the new trial was supported by the affidavits of the appellant and his counsel that they had no knowledge of the nature of the testimony set forth in the said transcript before, or at the time of, the trial, and that due diligence was used by each of them in procuring this evidence.
It has been repeatedly held by this court that ordinarily a new trial will not be granted on account of newly discovered evidence which merely impeaches an adverse witness. But, aside from that fact, we think the court below committed no error in refusing to grant a new trial on the ground of newly discovered evidence, for two reasons:
(1) The testimony of this witness as set forth in the aforesaid transcript was in no proper sense newly discovered evidence. It was given in an open hearing in the county court at which the appellant was necessarily present. The preliminary hearing to determine whether the appellant should be held to await the action of a grand jury could not legally have been held without his presence at such hearing, and we must presume that he was present and had full opportunity to hear the testimony of this witness, and therefore he cannot now be heard to say that he had no knowledge of this testimony before his trial in the circuit court.
(2) For the purpose of contradicting, and impeaching the credibility of, another witness, the appellant offered as a witness the official reporter of the county court, who took and transcribed the stenographic notes of the testimony of the several witnesses at the preliminary hearing, and she testified that she then had before her the transcript of the testimony of the said Lige Lacey. This stenographer, with the transcript of her stenographic notes, was later called by the state, in rebuttal, for the purpose of contradicting, and impeaching therewith, one of the appellant's witnesses. The witness Lacey was cross-examined at some length as to whether or not his testimony on the trial of the cause was the same as that given by him at the preliminary hearing. The transcript of his testimony comprised only a few pages, and could have been read in its entirety in a very few minutes. If neither the appellant nor his counsel availed themselves of the opportunity to inform themselves as to his testimony at the committing trial, we do not think it can be said that they exercised due diligence in that respect.
The appellant next contends that the evidence is insufficient to sustain a conviction of murder. There is no merit in this contention. The testimony of the state's witness, Lige Lacey, connected with evidence of previous threats on the part of the appellant to kill the deceased, and other circumstances in evidence, are sufficient to support the verdict; and it was proper to permit the jury to pass upon the controverted evidence in the record.
The appellant next complains that the court erred in refusing the following instruction: "The court instructs the jury for the defendant that where the defendant or defendant's witnesses are the only eyewitnesses to the homicide, his or their version, if reasonable must be accepted as true, unless substantially contradicted in material particulars by credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge."
Assuming that as an abstract proposition of law this instruction is correct, upon the facts in this record it was properly refused. The state offered an eyewitness whose testimony contradicted in many material respects the testimony of the appellant and his witnesses.
The appellant next complains of an instruction reading as follows: "The court instructs the jury that where two reasonable hypotheses arise from and are supported by the evidence in this case, one consistent with the defendant's innocence, and the other inconsistent with the defendant's innocence, it is your duty to adopt the one consistent with innocence, although the other be the more probable."
As drawn, this instruction is an inaccurate statement of law in any case; but, if correctly drawn, it would not be applicable here, where the conviction is based principally upon the evidence of an eyewitness. Williams v. State, 163 Miss. 475, 142 So. 471. We find no reversible error in the record, and therefore the judgment of the court below will be affirmed.
Affirmed.