Opinion
No. 32362.
October 12, 1936. Suggestion of Error Overruled October 26, 1936.
1. HOMICIDE.
Where accused contended deceased was at time of homicide advancing upon accused with knife, threatening his life, and state's witnesses testified that when shot was fired accused was twenty feet away from deceased, issue of self-defense held for jury.
2. CRIMINAL LAW.
Experimental evidence is admissible in homicide prosecution where comparative conditions are such as to be substantially the same in regard to the particular issue involved, affording a fair comparison.
3. CRIMINAL LAW.
Whether circumstances of experiments are identical, or nearly identical, with those with which experiments are to be compared so as to render experimental evidence admissible rests largely within sound discretion of trial judge, and only effect of variation between precise and substantial reproduction is as to weight of experimental evidence rather than admissibility.
4. CRIMINAL LAW.
In homicide prosecution wherein self-defense was issue, admission of experimental evidence to determine distance of accused from deceased when shot was fired held not abuse of discretion under circumstances showing substantially similar conditions existed at time shot was fired and at time of experiments.
APPEAL from circuit court of Forrest county. HON.W.J. PACK, Judge.
Hearst, Pittman Pittman, of Hattiesburg, for appellant.
All we can make of this case is that the state at most made a weak, doubtful, and uncertain prima facie case against the appellant, if in fact it did that much, and after that, the appellant and his witnesses made a complete, full, and sufficient case of self-defense, and this defense is substantially and overwhelmingly proved, and there is not anything in the whole record for the state or for the appellant that denies one single material element of the defense.
Jones v. State, 60 So. 735; Houston v. State, 117 Miss. 311, 78 So. 182; Patty v. State, 126 Miss. 94, 88 So. 498; Walters v. State, 122 So. 189.
The appellant submits that the circuit court committed reversible error in permitting the testimony of a witness with reference to the appellant being near a whiskey still or a place where the whiskey still was found. This testimony was all irrevelant, incompetent, and immaterial. Of course, and this is evident from the record, the only effect such inquiries and answers had on the jury was to prejudice them against the appellant.
The appellant submits that it was reversible error for the court to permit the introduction of the testimony of the sheriff, George W. Boone, with reference to the demonstration which he made with the gun used in the homicide, and the pattern of the shot made by the gun.
Our objection to this testimony is two fold, first, it was immaterial under the evidence in this case exactly how far apart the parties were, and in the second place the demonstration made by the sheriff was not qualified as competent evidence.
And since it came from the sheriff an officer of the court, prominent in the county, and exercising extraordinary influence around the court room, and his exhibition of the gun in illustrating his demonstration, and in the exhibition and introduction of the pattern made by the gun, which was an exceedingly horrifying thing for the jury to see, had powerful prejudicial effect on the trial and undoubtedly operated to the injustice and prejudice of the appellant.
Webb M. Mize, Assistant Attorney-General, for the state.
We submit that a case was made out against the defendant. On motion to exclude and for a peremptory charge evidence tending to prove guilt must be considered most favorably to the state.
Redwine v. State, 149 Miss. 741, 115 So. 889; Pruitt v. State, 163 Miss. 735, 140 So. 683; Chisholm v. State, 168 So. 479; Johnson v. State, 168 So. 479.
Certainly, the testimony for the state could not be unreasonable and if it stood alone, it was sufficient to convict.
Justice v. State, 170 Miss. 96, 154 So. 265.
It was up to the jury to decide what witnesses were testifying truthfully and what parts of the testimony were to be believed. As a verdict on conflicting evidence must stand, this case cannot be reversed.
Evans v. State, 159 Miss. 561, 132 So. 564; Stewart v. State, 154 Miss. 858, 123 So. 891.
It is always permissible to show motive in a homicide case. The case of Murphy v. State, 129 Miss. 634, 92 So. 694, held that in that case evidence that deceased and defendant had been engaged in the unlawful manufacture of liquor was permissible to show motive. In the case at bar, this testimony was admissible as a circumstance in connection with the other defense to show motive and it was properly coupled with other facts which tended to show guilt and was, therefore, admissible.
Morris v. State, 148 Miss. 680, 114 So. 750.
The fourth assignment of error is that the court erred in permitting the introduction of the testimony of the sheriff, George W. Boone, about the demonstration which he testified he made with the gun with which, it is said, deceased was killed and about the pattern he made with the gun and in permitting the pattern itself to be introduced before the jury. This testimony was most competent, as it showed that the deceased was twenty feet away from the defendant at the time the fatal shot was fired. This evidence was very material to show that appellant did not shoot deceased in self defense and to show that appellant was not reasonably apprehensive of death; and also to show that deceased was not near enough to defendant to attempt to cut him with a knife.
LeBarron v. State, 107 Miss. 663, 65 So. 648; Jones v. State, 148 Miss. 531, 114 So. 343.
Appellant admitted that he shot and killed the deceased with a double-barreled shotgun, and defended on the asserted ground that the deceased was advancing upon him with a knife, threatening at the time to kill the appellant. The eye-witnesses introduced on behalf of the state testified that, at the instant the fatal shot was fired, the deceased was approximately twenty feet away from the appellant, and it therefore became a question for the determination of the jury whether the issue of self-defense should be solved in favor of the accused. The jury was fully and correctly instructed as to the law upon that issue, and they decided against the appellant.
As stated, the question of the distance of appellant from the deceased at the moment the shot was fired was a material and perhaps a controlling issue in the case. Appellant testified that soon after the homicide he delivered the gun to his aunt, with directions to deliver it to the sheriff, and she testified that she delivered the gun to the sheriff in the same condition in which she received it — that she put no other shells in the gun, but delivered it to the sheriff exactly as she received it from appellant. The sheriff testified that the gun was loaded, both barrels, when he received it, with Peters high-velocity shells, seven and one-half shot, and that the wadding found at the scene of the homicide showed that the shot was of that size. The sheriff went to a hardware store in the nearest town and procured some additional shells of the same manufacture and of the same kind and size above mentioned; and he exhibited some of the shells to the court and jury. Having heard the testimony of the sheriff, appellant in his own testimony was interrogated about the shells, and admitted, in response, that the shells in the possession of the sheriff and exhibited, appeared to be the same shells as to kind and character which he was using at the time of the homicide, and were bought at the same store.
The sheriff further testified that he received the gun from appellant's aunt on the morning following the homicide on the evening before, and that the right-hand barrel showed signs of having been recently discharged. There was only one shot fired in the killing. Subsequently, the sheriff made tests, firing only the right-hand barrel of the gun, and using the shells aforementioned, upon patterns, these tests being made at distances of fifteen feet, twenty feet, and twenty-five feet from the gun. These patterns were introduced in evidence and the sheriff testified that the pattern which was made at twenty feet corresponded with the pattern upon the body of the deceased of which an examination was made by the sheriff about one hour after the homicide. In this the sheriff was corroborated by the physician who examined the dead body and was shown the patterns at the trial. The clothes worn by the deceased at the time he was shot were also exhibited to the jury, properly identified.
Appellant has vigorously argued that the evidence in respect to the tests was improperly admitted; and the chief ground urged for the objection is that it was not shown with sufficient certainty that the tests were made with shells loaded with the same kind of powder or with the same size load of powder which was in the particular shell with which the deceased was shot, it being admitted in the evidence that different sized loads of powder will make a different pattern in the scattering of small shot, such as were the shots which killed the deceased.
Many courts have shown considerable reluctance in admitting what is called in the books "experimental evidence," and have said that such evidence should be received with great caution. But the modern tendency is to receive such evidence, when the comparative conditions are such as to be substantially the same in regard to the particular issue in question. It is not required that all the conditoins shall be precisely reproduced; but it is sufficient if they are so nearly the same in substantial particulars as to afford a fair comparison in respect to the particular issue to which the tests are directed. As said in Harrison v. Railway Co., 93 Miss. 40, 46 So. 408, the circumstances of the tests or experiments must be (1) identical, or (2) nearly identical, with those with which the experiments are sought to be compared; and all the authorities are to the effect that these questions are largely within the sound discretion of the trial judge, and that the only effect of a variation between a precise and a substantial reproduction is as to the weight of the experimental evidence rather than its admissibility.
It seems to us that the probabilities are so strong in favor of the affirmative that the experiments or tests in this case were made under substantially similar conditions, so far as were material to the particular issue in hand, that the trial judge cannot be held to have abused his discretion in admitting the evidence. If the requirements of the rule were that all conditions must be, without doubt, so perfectly identical that the result would amount to an irrefutable demonstration, it would mean that experimental evidence would largely disappear as a practical method of proof; for it is impossible in most cases to precisely reproduce all conditions or to show with absolute certainty that all conditions have been precisely reproduced. The rule must be allowed an operation within what is reasonably fair and practicably possible according to the probative probabilities, without requiring absolute precision or certainty either as to comparative conditions or the proof thereof.
The other assignments have been considered, and we are of the opinion that no reversible error has been presented.
Affirmed.