Opinion
No. 36140.
May 13, 1946.
1. CRIMINAL LAW.
In prosecution for aiming pistol at woman, refusal to permit defendant to prove theft of pistol by woman's son was not reversible error as denying defendant the right to show the son's malice, where the evidence, if competent to show malice, would have been merely cumulative.
2. CRIMINAL LAW.
A verdict finding defendant guilty of aiming pistol at woman would not be disturbed on appeal where the evidence was conflicting, and the verdict was not manifestly wrong or against the overwhelming weight of the testimony.
3. CRIMINAL LAW.
In prosecution for aiming pistol at woman whose son was claimed to have shot at defendant a bullet which went through the top of defendant's hat, argument of state's attorney that son did not shoot at defendant and his statement that defendant's hat had no holes in the lining and his exhibition of hat to jury for their examination was not improper where defendant's counsel during introduction of evidence likewise exhibited hat to jury.
APPEAL from the circuit court of Hinds county, HON. H.B. GILLESPIE, Judge.
H.C. Stringer, of Jackson, for appellant.
The character of heart hate O'Flarity had for the accused at the time he was testifying on the trial of this case would be persuasive if not sufficient to justify the court in concluding that this witness would willingly swear to any state of facts which might bring about a conviction of the appellant. For a long time he had objected to his mother keeping company with the appellant even before he went into the armed services. After his return from the army he renewed his old grudge and initiated new and more dangerous efforts to break up the courtship of the accused and his mother. Several days before he made out the affidavit against the appellant charging him with aiming a pistol at and towards his mother O'Flarity shot at the accused. Prior to that he made what proved to be a fictitious affidavit against the appellant for kidnapping his mother and caused him to be incarcerated in jail, where he remained several days. Mrs. O'Flarity was not present and did not testify on the hearing. As against this heart hate and highly interested witness, the accused denied the charge and told a straight-forward story. He had nothing against the boy. His desire was only to be left alone. We contend that it was error for the court below to overrule the motion for a directed verdict after the State had rested its case.
The court erred in permitting the prosecution to testify before the jury. On the trial a hat was introduced by the appellant to show that the accusing witness had shot at the appellant. This evidence was available to the prosecution to be physically modified as it might see fit to set up and until the case closed. It never exercised this right. In the opening argument for the State the State's attorney exhibited the hat to the jury and in his argument stated, "Gentlemen of the jury, I want to show you that O'Flarity did not shoot at Franks, as he testified in this case." He then reached inside the hat on exhibit, caught hold of the inside lining, pulled same out, and said: "There are no holes in the lining," tendered the exhibit to the jury, and called upon them to examine it for themselves. We contend that the prosecution should have brought this evidence out on cross-examination and not for the first time before the jury.
The court should have permitted the appellant to prove theft of the pistol by the accusing witness from the appellant, such evidence being competent to show malice.
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
Counsel for appellant argues that the verdict of the jury should not stand for the reason that the prosecuting witness, James P. O'Flarity, did not like the appellant Franks, and for the further reason that the said prosecuting witness objected to appellant going with his mother, and that he hated the appellant and was highly interested in the case. This is no way disqualified the witness and would only go to is credibility.
Code of 1942, Sec. 1688.
The evidence was conflicting as to the guilt or innocence of appellant on this charge and was a question to be determined by the jury.
Evans v. State, 159 Miss. 561, 132 So. 563.
The credibility of the witnesses and the weight to be given their testimony is within the province of the jury.
Ells v. State, 159 Miss. 567, 132 So. 572; Hinton v. State, 175 Miss. 308, 166 So. 762.
There was nothing improper in the argument of the State's attorney with reference to the hat or in the examination of the lining by the jurors because counsel for appellant introduced the hat and asked that it be passed to the jurors for their examination. Certainly, he could not be heard to object to a close examination of his own exhibit.
Counsel for appellant argues that the court erred in not permitting the appellant to show that the prosecuting witness, O'Flarity, had stolen a pistol from the appellant. I am unable to see where this evidence would be relevant to the guilt or innocence of the appellant charged with pointing and aiming a pistol.
The evidence is ample to support the verdict of the jury and the judgment of the lower court should be affirmed.
Argued orally by H.C. Stringer, for appellant, and by R.O. Arrington, for appellee.
Appellant was convicted of aiming a pistol at and toward Mrs. J.E. O'Flarity (Section 2013, Code 1942) and sentenced to pay a fine, and to serve a term on the county farm.
He was "keeping company" with the lady, who was married but separated from her husband, and her grown son objected. She worked in appellant's store, and he would drive by her home and transport her to and from there, a distance of some three miles. On Sunday preceding the Saturday of the offense, the son of Mrs. O'Flarity is claimed to have shot at appellant. This, the son denied. The bullet, it was claimed, missed him, but went through the top of his hat, which he exhibited to the jury, and which was inspected by each juror on the trial.
The appellant, at the time he is charged with pointing the pistol at Mrs. O'Flarity, had it on the seat of his truck by his side, as a measure of protection against further attack by her son, he testified. He denied, however, pointing the pistol at her.
The contention of the State is that he used the pistol to coerce her into getting into his truck and going with him. The appellant interposed a denial of the charge. Mrs. O'Flarity was out of the State at the time of the trial and did not testify. The son was the chief witness for the State, and the appellant for himself. Among other things, appellant introduced in evidence certain instances of what he terms "heart hate" of the son toward him, including the shooting episode. He also was permitted to require the son on the witness stand to admit that while appellant was in jail, the son went to appellant's store and picked up appellant's pistol behind the counter. But he was refused permission to ask the son whether or not he put it in his pocket and carried it away. Appellant argues that this was error, because the excluded part showed malice.
The son testified that at the time of the alleged pistol pointing, he and his mother had started to town, and appellant pulled up in front of their home in his truck, pointed a gun out the window, and told her to get in the truck, or he would shoot her. They were on the porch of their home, about fifty feet away, and the pistol was held on her until she got in the truck. As stated, appellant entered a denial, claiming that the case was a "frame up," growing out of the son's malice toward him.
The objection of appellant to the court's refusal to permit him to prove theft of the pistol, as denying him the right to show the son's malice, is not well-taken, as it had been shown in other instances. Even if theft be competent to show malice (which we do not decide), this evidence would have been merely cumulative, and even if error, not reversible error.
The evidence was conflicting as shown supra, and the jury decided this plain issue of fact against appellant. Since we cannot say the verdict was manifestly wrong, against the overwhelming weight of testimony, we will not invade the province and prerogative of the jury by disturbing it. Evans v. State, 159 Miss. 561, 132 So. 563; Ells v. State, 159 Miss. 567, 132 So. 572.
It is assigned as error here that "prosecuting counsel testified before the jury, instead of arguing the case, as reflected by the special Bill of Exceptions." This special exception recites certain remarks of the State's Attorney, and describes what he did, as follows: "`Gentlemen of the jury, I want to show you that O'Flarity did not shoot at Franks, as he testified in this case.' He then reached inside the hat on exhibition, caught hold of the inside lining, pulled same out, and said: `There are no holes in the lining.' Tendered the exhibit to the jury, and called upon them to examine it for themselves." Objection was made and exception taken as stated, and motion made for a mistrial, and all overruled.
On the trial, during the introduction of evidence, appellant's counsel likewise exhibited the same hat to the jury, saying then: "I am going to let the jurors take and look at it." He then passed the hat among the jurors. There was nothing improper in the argument to the jury about the hole in the hat, and its absence from the lining; neither was there anything improper in the hat being again passed among the jurors, during the argument by the State's Attorney. There is no merit in this assignment of error, as it attacks what was merely legitimate argument.
Appellant was not entitled to a directed verdict. There is no merit in this, and other assignments of error.
The judgment of the trial court is affirmed.
Affirmed.