Opinion
No. 36891.
May 10, 1948.
1. HOMICIDE.
In murder prosecution, where evidence warranted jury's rejection of theory that shooting of deceased by defendant's companion was justified to prevent deceased from killing defendant and its finding that defendant and such companion were joint actors in seeking out and killing deceased, admission of testimony as to companion's acts on occasion of killing was not error.
2. CRIMINAL LAW.
A statement, dictated into record by defense attorney, that district attorney, in opening address to jury, said it was common for murderer to point a finger at some one else, and that defense attorney objected to district attorney saying that defendant "denied this only indirectly", was insufficient to show trial judge's version of district attorney's language and raise question whether he commented in argument on defendant's failure to testify.
3. CRIMINAL LAW.
In murder prosecution refusal to grant defendant a continuance because of material witness' absence was not reversible error, in absence of affidavit of absent witness or other showing as to what he would have testified to or in what respect his testimony would have supported defense of justifiable homicide.
APPEAL from the Circuit Court of Calhoun County.
W.I. Stone, of Coffeeville, for appellant.
The court erred in overruling the motion for continuance.
The court erred in admitting repeated testimony as to the acts of Frank Criss when it was not shown that there was any conspiracy between Frank Criss and Sam Spearman; and it was admitted that Frank Criss was the man who fired the fatal shot.
The court erred in not sustaining the special bill of exceptions and granting motion for mistrial. The district attorney in more than one instance commented on the defendant's failure to testify.
The court erred in not sustaining the motion for a peremptory instruction for acquittal.
The court erred in not sustaining the motion for a new trial.
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
The court committed no error in overruling the motion for a continuance and in proceeding with the trial, for the reason that the appellant did not comply with the rule of this Court in that on the motion for a new trial he did not have the witness appear or her affidavit or show why the affidavit could not be obtained.
Hinton v. State, 175 Miss. 308, 166 So. 762.
The evidence in this case on the part of the State, which is not denied by the defense, shows that the appellant, Sam Spearman, was looking for the deceased; that he had his shotgun and stopped at the home of his friend, Frank Criss, and asked him to go with him; that they proceeded a distance of three to four miles, walking, looking for deceased; that they stopped at Clark's house and made inquiry for him and proceeded on to Richard Parker's house where they found Dan Gaines, the party they were looking for. The evidence shows without dispute that the appellant, Spearman, knocked on the door, went in the house, caught the deceased by the hand and led him out on the porch, and that in a few seconds the gun fired, killing Dan Gaines, the deceased. The evidence shows on the part of the State, and which was denied by Frank Criss, that after Dan Gaines was mortally wounded he re-entered the home; that the door was closed and locked and that the appellant, Spearman, and Frank Criss wanted to shoot deceased again. This evidence overwhelmingly shows that the appellant, Spearman, was a joint actor in the killing of deceased and it is immaterial under the law as to who did the killing, the appellant or Frank Criss. Each person present, consenting to the commission of an offense, and doing any act which is an ingredient of or immediately connected with it, or leading to its commission, is a principal to the same extent as if he committed the whole crime.
McCoy v. State, 91 Miss. 257, 44 So. 814.
The evidence on the part of the State was ample — in fact, overwhelmingly sufficient — to show that the appellant and Criss were joint actors and the proof of a conspiracy was not necessary.
Adams v. State, 175 Miss. 868, 167 So. 59.
Where on the trial of a defendant for murder there was ample evidence to show he was a joint actor and active participant in the shooting, to make him liable as a joint actor in the killing, regardless of whether or not he fired the fatal shot, in such case proof of a conspiracy was not necessary to convict him.
Sparks v. State, 113 Miss. 266, 74 So. 123.
The argument of the district attorney was not improper nor prejudicial to the rights of the appellant.
Baird v. State, 146 Miss. 547, 112 So. 705; Lambert v. State, 199 Miss. 790, 25 So.2d 477.
The appellant Sam Spearman was jointly indicted with Frank Criss for the murder of one Dan Gaines. They were tried separately and each was convicted and sentenced to the penitentiary for life. The sentence of Frank Criss was affirmed here prior to the trial of the appellant Sam Spearman. Criss v. State, 202 Miss. 184, 30 So.2d 613. The proof on behalf of the State showed that on the evening of the homicide the appellant and Frank Criss were out trying to locate the deceased and that they found him when they visited the second house in their search. The appellant carried a shotgun and when they ascertained the whereabouts of the deceased at the home of one Richard Parker the appellant knocked on the door and when the same was opened he invited the deceased on the outside, saying that he wanted to talk to him. When they got outside the house Frank Criss picked up the shotgun, which the appellant had placed at the edge of the porch, and then immediately shot and killed the said Gaines.
At the trial of the appellant he introduced Frank Criss as the only witness in his behalf. This witness claimed that he shot Gaines to prevent the latter from killing the appellant Spearman when Gaines reached for his pocket as if to draw a weapon. However, the deceased was found to be unarmed and the jury was amply warranted under the testimony in rejecting this theory of justification and in finding that Criss and the appellant Spearman were joint actors in seeking out and killing their victim.
Therefore, no error was committed by the trial court in admitting testimony as to the acts of the said Frank Criss on the occasion in question, as complained of. Moreover, he was introduced by the appellant as a witness to testify as to what had occurred.
Two other errors are assigned which require comment. The first is that the District Attorney is alleged to have commented in his argument to the jury upon the failure of the defendant to testify. This point was raised by defense counsel having dictated into the record that "during the argument of the District Attorney in his opening address to the jury, he spoke of the fact that it was common for a murderer to point a finger at someone else, and I am objecting to his saying the defendant denied this only indirectly, and I am objecting to that and asking the Court to instruct the jury that it is improper and not to consider that. That is; The defendant has denied it only indirectly." Thereupon the District Attorney dictated this response: "The District Attorney insists that what he said was that the word picture we have in this case shows by the testimony for the State, which is denied by the testimony for the defendant only indirectly. That is where I stopped." The Court held that this was not a comment upon the failure of the defendant himself to testify and overruled the motion then made for a mistrial.
The purported bill of exceptions further makes mention of the fact that the district attorney had commented that the proof by witnesses for the State disclosed that the defendant had led the deceased out the door by the hand immediately before the shot was fired, and that "no one denies that." Criss had testified for the defendant and he had not denied it, as the only witness for the defense. However, the statement of the defense attorney into the record as to what was said during an argument to the jury by the district attorney is not sufficient to give us the benefit of the trial judge's version of what language was actually employed by the attorney on the occasion in question, and in the instant case there appears to be some disagreement between counsel as to the purport of what was said, and particularly as to the remarks hereinbefore first set forth. Compare Shaw v. State, 188 Miss. 549, 195 So. 581, and Davis v. State, 203 Miss. ___, 35 So.2d 524.
At any rate, we think that the question thus presented is controlled adversely to the appellant's contention by the decision in Baird v. State, 146 Miss. 547, 112 So. 705, and the cases therein cited.
The other assignment of error is that the Court should have granted the defendant a continuance because of the absence of a material witness, upon whom an attachment had been served but who was physically unable to attend the trial. No affidavit of the absent witness, or other showing, was made on the motion for a new trial as to what the witness would have testified to if present, nor is it otherwise shown by the record what facts the witness would have testified to or in what respect the testimony of such witness would have supported the defense of justifiable homicide.
No reversible error was committed, and the judgment of the trial court must be affirmed.
Affirmed.