Summary
In Herrin v. State, 201 Miss. 595, 29 So.2d 452 (1947), the district attorney stated in his closing argument that the jury could acquit the defendant of the charge and let him go free, and if the jury did so, he may kill another person, and the next time it might not be a colored person.
Summary of this case from Wideman v. StateOpinion
No. 36347.
March 17, 1947. Suggestion of Error Overruled April 28, 1947.
1. HOMICIDE.
In applying rule that, where defendant is only surviving eyewitness of homicide, his version of what occurred must be accepted as true, unless substantially contradicted in material particulars by physical facts or facts of common knowledge to a case in which defendant claims self-defense, jury is not confined to defendant's evidence as to manner in which homicide occurred but may consider all facts and circumstances bearing thereon.
2. HOMICIDE.
Where defendant was only surviving eyewitness of homicide and claimed self-defense, jury could consider the reasonableness of defendant's version of what occurred, evidence of fresh shot marks on a tree tending to contradict his version, and defendant's failure to report homicide or admit that he killed deceased until testifying at trial.
3. CRIMINAL LAW.
Permitting State to cross-examine its own witness who allegedly took district attorney by surprise in testifying contrary to what he had stated to district attorney in witness room was not reversible error.
4. CRIMINAL LAW.
Including in instruction to convict of manslaughter, if jury found stated facts, a direction to so convict even though deceased had made threats against defendant's life and regardless of deceased's general reputation for violence, was not reversible error, where other instructions authorized jury to consider deceased's reputation and threats made by him.
5. CRIMINAL LAW.
District attorney's remark to jury that defendant, if acquitted, might kill again and that next time it might not be a colored person, constituted improper appeal to race prejudice; but, where trial court promptly sustained an objection to such remark, refusal to grant a mistrial was not reversible error.
APPEAL from the circuit court of Jefferson Davis county. HON. J.C. SHIVERS, J.
Martin Farr and Livingston Livingston, all of Prentiss, for appellant.
Where the defendant is the only eyewitness to the killing and his evidence is not disputed and is reasonable and makes out a case of self-defense and is not contradicted in a material way by evidence of the physical facts, the jury has no right to disbelieve defendant and his evidence must be taken as true, and the trial court should have granted the peremptory instruction, and failing to so do, should have overruled the verdict on motion for new trial, and this Court here will overrule it and discharge appellant.
King v. State, 65 Miss. 576, 5 So. 97; Weathersby v. State, 165 Miss. 207, 147 So. 481; Houston v. State, 117 Miss. 311, 78 So. 182; Patty v. State, 126 Miss. 94, 88 So. 498; Wesley v. State, 153 Miss. 357, 120 So. 918; Walters v. State, 153 Miss. 709, 122 So. 189; Gray v. State, 158 Miss. 266, 130 So. 150; Strahan v. State, 143 Miss. 519, 108 So. 502.
The verdict and judgment are contrary to the law and the great and overwhelming weight of the evidence.
Wilburn v. State, 73 Miss. 245, 18 So. 576; Howell v. State, 104 Miss. 295, 61 So. 314; Bangs v. State, 60 Miss. 571; McCrory v. State (Miss.), 25 So. 671; Johnson v. State, 79 Miss. 42, 30 So. 39.
The method adopted by the State, and permitted by the trial court, in the impeachment of the State witness. Sis Myers, was highly prejudicial to the rights of the defendant and constituted reversible error.
Fairly v. Fairly, 38 Miss. 280; Texas Co. v. Jackson, 174 Miss. 737, 165 So. 546; Dunk v. State, 84 Miss. 452, 36 So. 609; Bove v. State, 185 Miss. 547, 188 So. 557; 2 Wigmore on Evidence (2 Ed.), Sec. 907.
The manslaughter instruction given the State was erroneous, misleading, confusing and upon the weight of the evidence, and is reversible error.
King v. State, supra; Sinclair v. State, 87 Miss. 330, 39 So. 522; Moseley v. State, 89 Miss. 802, 41 So. 384; Leverett v. State, 112 Miss. 394, 73 So. 273; Prine v. State, 73 Miss. 838, 19 So. 711; Coleman v. Adair, 75 Miss. 660, 23 So. 369; Kimbrough v. Ragsdale, 69 Miss. 674, 13 So. 830; Cole v. State, 172 Miss. 19, 159 So. 296; Hood v. State, 170 Miss. 530, 155 So. 679; Tidwell v. State, 84 Miss. 475, 36 So. 393; Gordon v. State, 95 Miss. 543, 49 So. 609; Kearney v. State, 68 Miss. 233, 8 So. 292; Lucas v. State, 109 Miss. 82, 67 So. 851.
The court was in error in overruling defendant's motion for a directed verdict.
Newcomb v. State, 37 Miss. 383.
The court erred in overruling an objection to the improper argument made by the district attorney in his closing argument to the jury.
Eaton v. State, 200 Miss. 729, 28 So.2d 230; Holmes v. State, 151 Miss. 702, 118 So. 431; Sykes v. State, 89 Miss. 766, 42 So. 875; Harris v. State, 96 Miss. 379, 50 So. 626; Collins v. State, 100 Miss. 435, 56 So. 527; Garner v. State, 120 Miss. 744, 83 So. 83; Williams v. State, 122 Miss. 151, 433, 84 So. 8; Funchess v. State, 125 Miss. 140, 87 So. 487.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
Where defendant claiming self-defense was only witness to the homicide, the jury is not confined to his evidence as to the manner in which the homicide occurred, but may consider all the facts and circumstances bearing thereon.
McFatter v. State, 147 Miss. 133, 113 So. 187; McGehee v. State, 138 Miss. 822, 104 So. 150; Thornton v. State, 178 Miss. 304, 170 So. 541; Grady v. State, 144 Miss. 778, 110 So. 225.
Where there is a surprise and where the attorney has relied on the statement made to him by the witness, he may impeach his statement on the witness stand on the ground of surprise.
Bove v. State, 185 Miss. 547, 188 So. 557; Dunk v. State, 84 Miss. 452, 36 So. 609; Moore v. Chicago, St. L. N.O.R. Co., 59 Miss. 243; Chism v. State, 70 Miss. 742, 12 So. 852.
It appears that in commenting on the evidence the district attorney in his argument referred to the appellant as a "bushwhacker." There is not enough in the bill of exceptions to show the fair context of the district attorney's argument upon the proposition. What he said in connection with it should have been shown and there should have been a showing that it was used in a derogatory or a denunciatory sense, because the word is an old English word and indicated a person who travels through the bushes rather than a person who travels upon the highways or beaten trails from place to place. It was never considered a word that would detract from a person in its origin at least.
Curry v. Collins, 37 Mo. 324.
The appellant claims that the district attorney in his closing argument stated: "Gentlemen of the Jury, you may acquit the defendant on this charge and let him go free, and if you do he may kill another person and the next time it may not be a colored person." To which the defendant duly objected and which objection the court duly sustained. I do not think that this assignment of error should be seriously considered although the comment was made improperly by the district attorney. The judge sustained the objection at the time it was made, and no request was then made for a mistrial to be entered. The authorities of this State are to the effect that the motion for a mistrial must be promptly made if the defendant desires a mistrial. He cannot play with the proposition and deliberate on it for a long time and then raise it. It should have been promptly made when the judge sustained the objection and should not be considered now.
See Hampton v. State, 88 Miss. 257, 40 So. 545, 117 Am. St. Rep. 740; Moseley v. State, 112 Miss. 854, 73 So. 791; Garner v. State, 120 Miss. 744, 83 So. 83; Story v. State, 133 Miss. 476, 97 So. 806; Walton v. State, 147 Miss. 17, 112 So. 601; Roby v. State, 147 Miss. 575, 113 So. 185; Nelms Blum Co. v. Fink, 159 Miss. 372, 131 So. 817; Collins v. State, 100 Miss. 435, 56 So. 527.
Taking all the facts in the case before us, the defendant was fortunate to escape a conviction of murder. The jury shows by their verdict that the alleged argument did not prejudice them because they could have found him guilty of murder. The sentence also shows that the circuit judge was fair with the appellant, giving him only half the time that he could have sentenced him for manslaughter.
Argued orally by Robert Livingston and G.L. Martin, for appellant, and by Geo. H. Ethridge, for appellee.
The principal defense interposed by the appellant in this homicide case, wherein he was convicted of manslaughter, is that he was entitled to a directed verdict in his favor, because of the fact that he was the only surviving eyewitness to the killing, and that his version of what accurred must be accepted as true, unless substantially contradicted in material particulars by the physical facts, or by the facts of common knowledge, citing Houston v. State, 117 Miss. 311, 78 So. 182, Patty v. State, 126 Miss. 94, 88 So. 498, Wesley v. State, 153 Miss. 357, 120 So. 918, Walters v. State, 153 Miss. 709, 122 So. 189, Gray v. State, 158 Miss. 266, 130 So. 150, and Weathersby v. State, 165 Miss. 207, 147 So. 481.
In the application of the rule announced in the foregoing decisions there must, also, be kept in mind, as consistent therewith, the substance of the holding in the case of Grady v. State, 144 Miss. 778, 110 So. 225, to the effect that where a defendant is claiming self-defense, and is the only eyewitness to the homicide, the jury is not confined to his evidence as to the manner in which the homicide occurred, but may consider all of the facts and circumstances bearing thereon.
The testimony discloses that there was bad feeling between the accused and his victim, Bos Shows, prior to the occasion of the homicide; that they had each made serious threats against the life of the other; that there was a dispute as to whether the accused was getting some cross-ties on his own land, or on that which Bos Shows had in charge for Dr. Izard; that Bos Shows went to where the accused had cut some cross-ties and where he was sawing some wood, to again warn him to stay off the land; that before going to the scene of the killing the said Shows left his own shotgun leaning against a tree some little distance away; but that, according to the testimony of the accused, Shows had an axe in his hand when he arrived and renewed the controversy, and was advancing toward the accused, threatening to kill him; that Shows then threw down the axe, and continued to advance after the accused had taken a shotgun out of his wagon, and after he had warned him three times to stop; that the accused then shot him because of his failure to heed the warning; and that Shows at that time had his hands in his pockets, and was continuing to threaten the life of the accused.
Obviously, in considering the reasonableness of the defendant's version of what occurred, the jury was entitled to consider whether or not it was in accord with human experience and matters of common knowledge that Shows would have continued to advance toward a man who had procured a shotgun, and was holding it in his hand, after Shows had thrown down his axe and was advancing withhis hands in his pockets, in which he had no weapon to protect himself.
Then, too, some of the inquest jurors testified as to the position of some fresh shot signs on a very small hickory tree between the wagon and where Shows fell, which strongly indicated that the accused had not given a true account of what occurred at the time the load of shot was fired in the face of the victim.
Moreover, the accused did not report the homicide, and neither did he admit to the officers that he had done the shooting after the body was found on the next day, but always told them that he didn't have anything to say until he could talk to his lawyer. In fact, the burden of the State's proof at the trial was devoted to an effort to show by circumstantial evidence the identity of the slayer. Then, in his own defense, the accused told his story of self-defense, which he said he was telling for the first time. That was his privilege, but the jury was entitled to consider all of the foregoing facts and circumstances in connection with his own version of what occurred, in determining the application of the rule announced in the cases hereinbefore mentioned.
There are fourteen other assignments of error, but they may be grouped mainly under three points: First, the action of the trial court in permitting the State to cross-examine one of its own witnesses, who allegedly took the district attorney by surprise in testifying contrary to what he had stated to him in the witness room; second, the giving of an instruction for the State, to the effect that if the jury believed from the evidence beyond a reasonably doubt that the accused wilfully, unlawfully and feloniously killed Bos Shows without malice, in the heat of passion, by the use of a dangerous weapon, without authority of law, and not in necessary self-defense, the jury should find the defendant guilty of manslaugter, and that, "This is true even though you may further believe from the evidence that the deceased, Bos Shows, made threats against the life of the defendant," and also regardless of what the jury "may further believe from the evidence as to the general reputation for peace or violence of the deceased;" and, third, that according to a bill of exceptions signed by the Circuit Judge, the district attorney, in his closing remarks to the jury, said: "Gentlemen of the jury you can acquit the defendant on this charge and let him go free, and if you do he may kill another person, and the next time it may not be a colored person," to which the defendant "duly objected, and which objection the court duly sustained."
We are of the opinion that the objections on behalf of the accused, and motions made on his behalf in regard thereto were seasonably taken and made.
But we are of the further opinion that no reversible error was committed in permitting the district attorney to cross-examine the State witness referred to. And we are of the further opinion, although it may have been error to group the quoted language in the instruction hereinbefore mentioned with the remainder thereof, the instructions as a whole did not constitute reversible error, and especially in view of the fact that the defendant obtained instructions authorizing the jury to consider the bad reputation of the deceased for peace and violence, and also any threats that may have been made against him by the deceased, that is to say, when all of the instructions are considered as a whole, they fairly and fully present the law of the case. And finally, we are of the opinion that while the remarks of the district attorney constituted an appeal to race prejudice, and should not have been made, the action of the trial court in promptly sustaining an objection thereto was sufficient to prevent his overruling of the motion for a mistrial from constituting a reversible error, under all the facts and circumstances of this case.
The fact that the defendant was convicted of the crime of manslaughter, instead of murder, would indicate that the jury gave due consideration to the bad reputation of the deceased for peace or violence, and the fact that the deceased had made previous threats against the accused, and had also made such threats on the occasion when the homicide was committed.
The judgment and sentence of the trial court must, therefore, be affirmed.
Affirmed.