Summary
In Thompson v. State, 220 Miss. 200, 70 So.2d 341 (1954), which involved a conflict of medical opinion as to whether the decedent's death was caused by a stab wound and subsequent hemorrhage therefrom or other causes, this Court held that it was within the province of the jury to determine the cause of death.
Summary of this case from Cowan v. StateOpinion
No. 39011.
February 22, 1954.
1. Homicide — independent cause of death.
If a wound, received at the hands of the accused, is not mortal in nature, and death results from an entirely independent cause, accused is not criminally responsible for the death.
2. Homicide — cause of victim's death — jury question.
In murder prosecution, where medical evidence as to cause of death is conflicting, it was for jury to determine as to whether death of victim resulted from stabbing by defendant or other causes.
3. Criminal law — evidence — introduction of death certificate — harmless error.
In murder prosecution, wherein there was a controversy as to whether death of victim resulted from stabbing by defendant or from other causes, it was error to admit death certificate showing that death was result of homicide, but where doctor who had made out the certificate had testified that death resulted from a stab wound, such error was rendered harmless. Sec. 7064, Code 1942.
4. Criminal law — res gestae — contemporaneous statement of deceased.
Admission of testimony as to statement of deceased, contemporaneous with the stabbing, that defendant, naming him, "done cut me" was not error, since statement was a part of the res gestae.
5. Criminal law — improper argument — how objection made — point preserved.
Argument of prosecuting attorney which was improper or prejudicial should have been objected to, and after ruling of trial court on such objection, if objector was of opinion that the improper or prejudicial argument had not been eradicated from the minds of the jury, he should have moved for a mistrial.
6. Criminal law — appeal — affidavit appended to brief — not considered as part of record.
Affidavit of counsel as to what occurred with respect to objection to alleged improper argument of prosecuting attorney, when not in record, but appended to appellant's brief, cannot be considered a part of record. Sec. 1533, Code 1942.
Headnotes as approved by Lee, J.
APPEAL from the circuit court of Adams County; JAMES A. TORREY, Judge.
Riley Johnson, M. Brandt Collins, Natchez, for appellant.
I. A directed verdict should have been entered by the trial court at the conclusion of the testimony of both sides on the ground of insufficiency of the evidence. Algheri v. State, 25 Miss. 584; Benson v. State, 209 Miss. 624, 48 So.2d 119; Bourn v. State, 66 Miss. 46, 5 So. 626; Boutwell v. State, 181 Miss. 509, 178 So. 585; Bumpus v. State, 166 Miss. 276, 144 So. 877; Carter v. State, 199 Miss. 871, 21 So.2d 470; Conner v. State, 179 Miss. 795, 177 So. 46; Crum v. State, 64 Miss. 1, 1 So. 1; Cumberland v. State, 110 Miss. 521, 70 So. 695; Dean v. State, 173 Miss. 254, 160 So. 584; Dobbs v. State, 200 Miss. 595, 29 So.2d 84; Dunbar v. State, 159 Miss. 603, 132 So. 748; Ewing v. State (Miss.), 9 So.2d 679; Idaho v. Sullivan, 199 P. 647, 17 A.L.R. 902; Jeffcoat v. State (Miss.), 21 So.2d 8; Johnson v. State (Miss.), 198 So. 554; Loggins v. State, 161 Miss. 272, 136 So. 922; Miller v. State, 198 Miss. 277, 22 So.2d 164; Moore v. State, 188 Miss. 546, 195 So. 695; McBeth v. State, 50 Miss. 81; Pitts v. State, 43 Miss. 472; Quinn v. State, 106 Miss. 844, 64 So. 738; State v. Graffam, 202 La. 869, 13 So.2d 249; Stubbs v. State, 200 Miss. 485, 40 So.2d 256; Watts v. State, 210 Miss. 236, 49 So. 240; Westbrook v. State, 202 Miss. 426, 32 So.2d 251; Williams v. State (Miss.), 17 So.2d 213; 14 Am. Jur., Sec. 6; 20 Am. Jur., Evidence, Secs. 149, 151, 1085, 1217, 1232; 26 Am. Jur., Homicide, Secs. 285, 288, 290, 326, 481; 53 Am. Jur., Sec. 420; Annos. 8 A.L.R. 516; 17 A.L.R. 905; 39 A.L.R. 1268; 126 A.L.R. 918; L.R.A. 1915F, 608; 68 L.R.A. 33; 22 L.R.A. (N.S.) 841; 28 L.R.A. (N.S.) 655; 49 L.R.A. (N.S.) 913.
II. The Court erred in admitting the death certificate as an exhibit to the testimony of Dr. E.L. McAmis. Blackwell v. State, 166 Miss. 524, 146 So. 628; Hunter v. Hunter, 127 Miss. 683, 90 So. 440; Massachusetts Protective Assn. v. Cranford, 137 Miss. 876, 102 So. 171; Sec. 7064, Code 1942; Annos. 17 A.L.R. 359; 42 A.L.R. 1454; 96 A.L.R. 324.
III. The Court erred in not granting a mistrial for remarks made by the State's attorney during oral argument before the jury. Augustine v. State, 201 Miss. 277, 28 So.2d 243; Henley v. State, 202 Miss. 37, 30 So.2d 423; Herman v. State, 75 Miss. 340, 22 So. 873; Hill v. State, 196 Miss. 503, 16 So.2d 626; Johnson v. State, 88 Fla. 461, 102 So. 549; Moorman v. State, 109 Miss. 848, 69 So. 1000; Roney v. State, 153 Miss. 290, 120 So. 445; Smith v. State, 141 Miss. 772, 105 So. 758.
IV. The Court erred in admitting into evidence the hearsay statements of the deceased. Haney v. State, 129 Miss. 486, 92 So. 627; Russell v. State, 185 Miss. 464, 189 So. 90; Wells v. State, 110 Miss. 400, 70 So. 452; Williams v. State (Miss.), 92 So. 557.
John E. Stone, Asst. Atty. Gen., Jackson, for appellee.
I. The evidence was sufficient to support the verdict of the jury. Benson v. State (Miss.), 48 So.2d 119; Bourn v. State, 66 Miss. 46, 5 So. 626; Brice v. State, 167 Miss. 255, 259, 148 So. 348; Bumpus v. State, 166 Miss. 276, 144 So. 897, 898; Evans v. State, 159 Miss. 561, 566, 132 So. 563; Ivy v. State, 206 Miss. 734, 752, 40 So.2d 609; Quinn v. State, 106 Miss. 844, 64 So. 738; Watts v. State, 210 Miss. 236, 238, 49 So.2d 240; Wiggins v. State, 199 Miss. 114, 23 So.2d 691; Wiley v. State, 197 Miss. 21, 25, 19 So.2d 696.
II. Introduction of the death certificate did not constitute error. Massachusetts Protective Assn. v. Cranford, 137 Miss. 876, 102 So. 171; Secs. 2218-9, 7064, Code 1942.
III. The record does not show reversible error in the conduct of State's attorney during oral argument. Aldridge v. State, 108 Miss. 452, 455, 177 So. 765; Blackwell v. State, 161 Miss. 587, 135 So. 192; Bustin v. State, 184 Miss. 1, 185 So. 259; Holmes v. State, 151 Miss. 702, 710, 118 So. 431; Matthews v. State, 148 Miss. 696, 114 So. 816; Woods v. State (Miss.), 37 So.2d 319.
IV. Deceased's outcry at time of stabbing competent as part of res gestae. Cole v. State, 173 Miss. 19, 159 So. 297; Haney v. State, 129 Miss. 486, 92 So. 627; McCoy v. State, 91 Miss. 257, 44 So. 814; Magee v. State, 145 Miss. 227, 110 So. 500; Meek v. Perry, 36 Miss. 190.
J.C. Thompson was indicted for the murder of Berthone Weir. The jury found him guilty of manslaughter and the court sentenced him to serve a term of ten years in the state penitentiary. From the judgment entered thereon he appeals.
On a Saturday night in May 1952, several Negroes, including Weir, the deceased, and J.W. Thompson, a brother of the appellant, were engaged in a crap game at Stigler Gray's place. A dispute arose between Weir and Thompson and they had a fight. When a state witness undertook to separate the combatants, Thompson cut Weir on the jaw and the witness on the shoulder. About that time, according to two other state witnesses, J.C. Thompson came up behind Weir, who was stooping over to keep the blood off his clothes, and, with a knife, stabbed him in the left side. One of these witnesses also testified that Weir immediately turned around and exclaimed, "J.C. done cut me," and that J.C. hurried away.
Appellant, testifying for himself, said that he took the knife from his brother, J.W., and struck Weir in the face in self-defense, as the deceased was advancing upon him. He denied that he stabbed Weir in the side.
The wounded man was taken to the hospital where Dr. J.B. Loe made an examination. The doctor found no fluid in the chest and considered the wound of a minor nature. After a day or two, the patient was discharged. Subsequently he was readmitted, at which time Dr. E.L. McAmis, the superintendent, attended him. At that time, there was fluid in his chest and he was in severe respiratory distress. Eight or nine days elapsed between the first admission and his death. No autopsy was performed. It was the opinion of Dr. McAmis that the stab wound in the chest, with hemorrhage therefrom, was the cause of death. On the contrary, Dr. Loe expressed doubt as to the correctness of that conclusion.
(Hn 1) Appellant contends that his requested peremptory instruction should have been granted because the State's proof was insufficient to show with reasonable certainty that Weir died as a result of the stab wound.
Of course, if a wound, not mortal in nature, is received, and death results from an entirely independent cause, the assailant who inflicted the wound is not responsible for the death. Quinn v. State, 106 Miss. 844, 64 So. 738. (Hn 2) The medical evidence as to the cause of death was conflicting. Hence it was the province of the jury to determine whether the stabbing of the deceased by the appellant was the cause. In passing on this question, the jury could accept the one and reject the other. Ivey v. State, 206 Miss. 734, 40 So.2d 609; Woodward v. State, 180 Miss. 571, 177 So. 531; Watts v. State, 210 Miss. 236, 49 So.2d 240. In the recent case of Buford v. State, No. 38,973, decided by this Court on January 25, 1954, where the confession had shown that the killing was effected with a pistol, but in the opinion of the surgeon, who had performed an autopsy, the death was caused by a sharp object and not a gun, it was held that this was one of the issues of fact for the determination of the jury on the question of Buford's guilt or innocence, inasmuch as the jury was warranted in believing from the evidence that the bullet had been coughed up with blood from the lungs. Consequently the peremptory instruction was properly refused.
Appellant complains that the court erred in admitting the death certificate, particularly as it showed the death as the result of homicide.
In Mass. Protective Assn. v. Cranford, 137 Miss. 876, 102 So. 171, where the certificate stated the cause of death as suicide, in construing Section 7064, Code of 1942, which provides for the admission in all courts of a certified copy of the record of death, this Court said: "* * * (Hn 3) We do not think the statute was intended to authorize certificates to be introduced as prima-facie evidence except as to the prime physical cause of death * * *". It was pointed out that, under the authorized purpose, the certificate should have shown the cause of death as gunshot wound, "and not whether the wound was inflicted by any certain person, by assassination, by accident, or by intentional self destruction." Consequently, the objection should have been sustained. But, in view of the fact that Dr. McAmis, who made out the original certificate as to the cause of death, testified that death resulted from a stab wound, it follows that no harm could have resulted from the admission of the certificate.
(Hn 4) The answer to appellant's contention that the statement of the deceased, namely, "J.C. done cut me," was erroneously admitted, is that the statement was contemporaneous with the stabbing, and was a part of the res gestae. Meek and Thornton v. Perry, 36 Miss. 190; McCoy v. State, 91 Miss. 257, 44 So. 814; Magee v. State, 145 Miss. 227, 110 So. 500; Cole v. State, 172 Miss. 19, 159 So. 296.
Appellant further contends that the court erred in not declaring a mistrial during the argument of the State's attorney. He obtained a special bill of exceptions, signed by the trial judge, which says that the State's attorney, during the argument, demonstrated with a large knife which had been exhibited before the jury, but which had not been introduced in evidence, and said that the defendant used it. The bill of exceptions does not show that objection was made to this argument, or that a mistrial was asked for. It is only shown therein that exceptions were taken and filed.
(Hn 5) Where the argument is improper or prejudicial it should be objected to. The trial judge must be afforded an opportunity to pass on the matter. After a ruling, if an objector is of the opinion that the improper or prejudicial argument has not been eradicated from the minds of the jury, he should move for a mistrial. Matthews v. State, 148 Miss. 696, 114 So. 816; Holmes v. State, 151 Miss. 702, 118 So. 431; Wells v. State, 162 Miss. 617, 139 So. 859. The point was preserved in Smith v. State, 141 Miss. 772, 105 So. 758; Roney v. State, 153 Miss. 290, 120 So. 445; Hill v. State, 196 Miss. 503, 16 So.2d 626; Augustine v. State, 201 Miss. 277, 28 So.2d 243.
(Hn 6) The affidavit of counsel, of date of January 27, 1954, as to what occurred in this respect at the trial in March 1953, not in the record of the trial, but appended to appellant's brief, can not, under Section 1533, Code of 1942, be considered a part of the record.
No reversible error appears in the record, and the cause is therefore affirmed.
Affirmed.
McGehee, C.J., and Hall, Holmes, and Ethridge, JJ., concur.