Summary
In Warren v. State, 183 Miss. 682, 184 So. 324 (1938), the court held that evidence of threats by the defendant against a witness was admissible to show that the defendant was attempting to suppress material evidence.
Summary of this case from Gunn v. StateOpinion
No. 33478.
November 7, 1938.
1. CRIMINAL LAW.
In homicide prosecution, admission of testimony on second trial that after first trial, defendant asked witness if witness would not help defendant, and struck at witness when witness asserted that facts he had stated on first trial were true was not reversible error, since testimony showed intent to suppress material evidence as against contention that testimony related to different offense which had no connection with and was subsequent to the killing.
2. HOMICIDE.
In homicide prosecution, giving of instructions to effect that if there was a conspiracy or agreement between defendant and codefendant to assault deceased, that defendant was guilty even though codefendant inflicted fatal wound was not reversible error where all the proof showed that defendant was the person who inflicted the wounds, since defendant was not injured by the instructions.
3. CRIMINAL LAW.
Conviction for manslaughter could not be reversed because of severity of 12 year sentence imposed by trial court, since fixing of punishment is matter for trial court so long as punishment imposed does not amount to cruel and unusual punishment.
APPEAL from the circuit court of Newton county; HON. D.M. ANDERSON, Judge.
J.B. Hillman, of Philadelphia, and Howie, Howie McGowan, of Jackson, for appellant.
This defendant was being tried solely on the indictment charging him with the murder of Walton Moore. The state offered the witness Rudolph Dallas over the objection of the defendant, who proved an assault on Rudolph Dallas by the defendant subsequent to the alleged homicide. The testimony relating to the commission of any other crime where the same antecedes the crime charged in the indictment, or is subsequent to the indictment, can throw no light on the question of the guilt or innocence of the defendant on any charge. In this case the fact that the defendant committed an assault upon Rudolph Dallas at a time subsequent to the crime charged in the indictment would be most highly prejudicial for the reason that it would tend to show a depraved mind and quarrelsome and vicious disposition on the part of the defendant in relation to a matter wholly disconnected from the matter charged in the indictment.
Collier v. State, 64 So. 373; Raines v. State, 33 So. 19.
This testimony does not come within any of the exceptions of the rule. There is no such connection between this assault and the homicide as would bring the same within any exception to the rule.
Johnson v. State, 95 So. 583; Keel v. State, 97 So. 521; McLin v. State, 116 So. 533; Willoughby v. State, 122 So. 757; Floyd v. State, 148 So. 226.
Instructions Nos. 2 and 4 asked for by the state, and given for the state, are hypothecated upon the theory that the defendant, Jimmie Warren, conspired with or colluded with someone else, evidently Earl Chesney, and that the fatal blow may have been committed by Earl Chesney, and if the fatal blow was committed by Earl Chesney the jury was instructed to convict Warren if they believed that the killing was feloniously done at the instance or with the aid of Warren in conjunction with Chesney or anyone else, if anyone else struck the fatal blow. There is no evidence in any part of this record that shows there was any ill feeling existing between the deceased and Jimmie Warren, appellant, at any time prior to the controversy just prior to the time the fatal blow was struck. On the contrary all the testimony shows there was the friendliest relation existing between all parties there on that occasion.
These instructions for the state in effect told the jury that there was evidence on which they could conclude that Warren and Chesney had conspired together to kill or injure the deceased, and that there was evidence on which they could conclude that even though Chesney struck the fatal blow that they might hold it was at the instance of and at a time when appellant was aiding and abetting. Thereby the court put off from the jury the privilege and right which they had to determine from the evidence as to whether or not the appellant actually struck the fatal blow, and these instructions were given without any testimony whatever or any reason in the record for any such instructions having been given.
These instructions, we think, were highly prejudicial to the defendant in that they put an issue before the jury on which there was no evidence that any such question as contemplated in Instructions Nos. 2 and 4 could be submitted to the jury. These instructions could have no other effect on the jury than to cause great prejudice against the defendant when there was no evidence on which to base it.
There was no justification whatsoever for the instructions Nos. 2 and 4 relative to the theory of "present aiding and abetting." It was highly prejudicial to this defendant to insert the same. There was not a scintilla of evidence to justify the instructions.
Lamar v. State, 1 So. 354, 64 Miss. 428; Aldridge v. State, 59 Miss. 250; Gedine v. State, 2 So. 313, 64 Miss. 798.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
Rudolph Dallas had evidently testified at this former trial. Some three weeks before the day of the trial here involved, Dallas testified that appellant came to him and told him that they had always been friends and that it looked as if he (Dallas) could help him out; that appellant accused him of having told things at the former trial that did not happen. This Dallas denied and when he denied it appellant struck him with his fists and at the time he struck him he had his other hand in his hip pocket. The court, over the general objection of the defendant, allowed this testimony to go to the jury, and such act is assigned here as error.
Preliminarily, it may well be observed that no objection was made in the court below on the ground that such evidence disclosed another and different offense than that for which he was then being tried. The objection, that this testimony shows a different offense, is made in this court for the first time. It is doubtful whether this court has the right to review the ruling of the court, since this precise objection appears not to have been there made.
Jackson v. State, 163 Miss. 235, 140 So. 683.
The decisions of this court indicate that it is always permissible to show that a party has undertaken to suppress testimony, or to cause it to be fabricated.
Dickey v. State, 86 Miss. 525, 38 So. 776.
In Loftin v. State, 1 Miss. Dec. 105, it was held that this type of testimony was not admissible, unless the defendant were shown to have had some connection with it. In that case the testimony showed that two witnesses for the state were shot by unknown parties, some time between the hearing in the magistrate's court and the trial in the circuit court. The inference is that if it were shown that the defendant had shot these two witnesses, or had procured it to be done, such evidence would have been admissible, and this, even though it showed a separate and different offense from that for which he was then being tried.
Sullivan v. State, 155 Miss. 629, 125 So. 115; Jeffries v. State, 89 Miss. 643.
This court has also held that as an exception to the general rule it is permissible to prove a separate and independent offense where it is necessary to show scienter or guilty knowledge. It is not so clear to the writer that this exception would apply to the situation involved in the case at bar, but it appears to be at least persuasive.
Stift v. State, 152 Miss. 246, 119 So. 178.
In the case at bar the evidence clearly shows that appellant had sought out the witness and felt him out with reference to getting him to change his testimony so that it would be favorable to him. When the witness refused, in so many words, to accommodate him in this respect he became enraged and accused the witness of having lied at the previous trial, and upon the denial of the witness, appellant struck him. It being part and parcel of an attempt to fabricate testimony, we submit that it was admissible for the reasons hereinabove set out, even though such testimony would be held as not coming within the exception noted in the Stift case, supra.
Instructions No. 2 and 4 for the state are said to have been erroneously given by the court because they allow the jury to predicate guilt upon aiding and abetting, when it is said that there is no evidence upon which to base such a theory. In this case the testimony for the state shows, without any sort of conflict, that the appellant, no doubt out of resentment for having been charged with the larceny of the beer, struck the deceased the first blow. This blow was struck in the area where it subsequently developed the deceased was stabbed. After appellant and deceased were on the ground Chesney entered into the affray and there is evidence to show that Chesney slashed Moore on the leg with a knife. As the parties were separated, Chesney was shown to have made one or more licks also at or about the point where it later developed deceased had been stabbed. A knife was taken from the hands of appellant after the two parties had been separated on the ground. In other words, there is evidence to show that appellant had a knife, and evidence to indicate that Chesney may have had a knife. At least he had one on the next morning, at the time of his arrest. This cutting and stabbing occurred around ten o'clock on a starlit night and clearly appears to have been the joint handiwork of appellant and Chesney. Under the evidence showing a joint enterprise as between the two, it became immaterial which of the two may have delivered the stab wound which took the life of deceased; and, under such circumstances, it was not necessary for the state to show any conspiracy as between the two parties.
Sparks v. State, 113 Miss. 266, 74 So. 123; Adams v. State, 175 Miss. 868, 167 So. 59.
We submit that there was ample evidence to justify the court in instructing the jury on the theory of aiding and abetting and no error can be predicated upon this action of the court.
The appellant, Jimmie Warren, was indicted for murder for the killing of Walton Moore in Newton county, Mississippi, and on trial was convicted of manslaughter, and sentenced to twelve years in the penitentiary. It appears that on an evening in April, 1937, the appellant and his co-indictee, Earl Chesney, and W.E. Collins, started to a party or dance at the home of Bob Skinner, near Little Rock, Mississippi, driving Jimmie Warren's car, which broke down at Little Rock. Just then the deceased and several others came by, asked them to get in their car, and took them on to Skinner's residence, where some of the party danced for a while, and then went in the car up on the hill above Skinner's residence, where they got out and took several drinks of corn beer from containers in the possession of the Moores. After taking several drinks of this beer, Moore and his companions went back to the car, and the appellant and Chesney started back toward Skinner's house. When the Moores reached their car they decided to return and get the remainder of the beer, which had been left in the woods nearby. Failing to find it, they accused the appellant and Chesney of taking it, which they denied — to which Moore replied that they must have taken it; there was nobody else to get it. The appellant told him that he did not like what he said, and Walton Moore said he did not have to take it; whereupon the appellant struck Moore about the upper part of the shoulder, near the neck. Moore then knocked the appellant down, got on top of him, and according to some of the evidence was beating him, when the appellant cut Moore on the leg twice. Moore hallooed out, "He has a knife and is cutting me!" or words to that effect; Chesney rushed up and tried to strike Moore, but was intercepted by Moore's brothers; and they then pulled Moore off, and took the appellant's knife. After this the appellant and Chesney walked off down the road. Moore died within a few minutes. It was found that he was cut twice in the leg, between the knee and body, and was stabbed about where the shoulder joins the neck. The latter wound bled profusely, resulting in his death in a short while. Moore's companions took him to Union, to get the aid of a physician, hoping to save his life, but when they reached Union he was dead.
The sheriff's office was informed of the killing at about midnight of the evening on which it occurred around 10 o'clock; and the sheriff and deputy sheriff tried to find the appellant and Chesney that night, and throughout the morning hours, finally locating them late in the afternoon of the day following. They were placed under arrest, the appellant admitting that he cut the deceased, and on being informed of his death — which he had not theretofore known — he stated that he did it, that all he wanted was a fair deal.
Beside the appellant and the deceased, there were four parties present throughout the difficulty, who testified substantially to what has already been stated. They could not see the knife in the hands of the appellant, it being, according to the evidence, a moonless or starlit night.
The sheriff, after arresting appellant and Chesney, took possession of the appellant's knife, and on finding that Chesney had a knife, also took it.
It appears that there had been a former trial of the case, on which trial one Rudolph Dallas, one of the parties present at the time of the difficulty, testified as a witness. Shortly before the present trial the appellant went to see Dallas, and according to the latter's testimony, stated that they had always been friends, and asked if he, Dallas, could not help him. Dallas, according to his testimony, replied that if the truth would help him he could; whereupon the appellant told Dallas that on the former trial he had stated as facts that which was not true. Dallas claims to have denied this, whereupon the appellant struck at him, but did not hit him. This evidence was offered by the state when Dallas was on the stand, was objected to, and assigned for error. The state also secured an instruction, which is assigned for error, to the effect that if there was a conspiracy or agreement between the appellant and Chesney to assault the deceased, that the appellant was guilty, even though Chesney should have inflicted the fatal wound, — or to that effect.
In regard to the transaction between Dallas and the appellant, in which the appellant struck at Dallas, and accused him of making statements which were untrue, it is objected that this is a different offense, having no connection with, and subsequent to, the killing; that it was prejudicial, and for that reason the cause should be reversed. It appears to us that the evidence was competent for the purpose of showing that the appellant, an interested party, was trying to prevent Dallas from testifying to what Dallas conceived the truth to be, or from testifying to the facts to which he had testified on the former trial; and that his assault on Dallas was an attempt to intimidate a material witness, and prevent his testifying to his conception of the truth.
We think the dispute and assault came about by reason of the transaction for which the appellant was tried, and was calculated to influence the witness, either by persuasion or coercion, from testifying in the case for which the appellant was shortly to be tried. In other words, it was an attempt to suppress material evidence at the approaching trial, and could be shown as a material fact at that trial. At least, there was no reversible error for which the cause could be reversed.
In regard to the instruction, there is no proof here from which it can be reasonably inferred that Chesney struck the fatal blow. No witness stated that he did, though it was stated that he attempted to strike Moore, which he denied. It appears that the knife with which the wound was inflicted belonged to the appellant, who admitted the cutting, although he denied using the knife prior to the time the deceased knocked him down; and stated that he thought the deceased was cutting him when he cut the deceased.
The appellant was not injured by this instruction, because all the proof shows that he was the person who did the cutting. Consequently, we will not reverse on that account.
On the facts in the record, it appears that the twelve-year sentence was rather severe; but the trial judge, in passing sentence, has the advantage of knowing the situation, being aware of what is called the atmosphere of the case, and the requirements of the community; and the law has committed to him the fixing of the punishment, so long as it does not amount to cruel and unusual punishment.
We are, therefore, unable to reverse the case, and the judgment is affirmed.
Affirmed.