Opinion
No. 43802.
February 14, 1966.
1. Criminal law — accusatory statements — res gestae — admissible.
Testimony of witness as to accusatory statement made by a victim, shortly after she was burned and before she was taken to hospital, and as to what another witness had heard victim say was admissible in murder trial as part of res gestae.
2. Criminal law — admission of defendant — admissible.
Testimony of witness at murder trial as to defendant's statement that he had set victim afire was admissible.
3. Criminal law — declaration against interest — admissible.
Testimony of witness at murder trial that he heard victim ask defendant why he had burned her up and defendant's response "I don't know" was admissible as declaration against interest.
4. Criminal law — accusatory statements — immediate denial by defendant — inadmissible.
Testimony of witness at murder trial as to accusatory statement made by victim in presence of defendant was not admissible where defendant immediately denied victim's accusation.
5. Murder — setting fire to victim — jury question.
Evidence which disclosed that victim accused defendant, charged with murder, of having set her on fire and that defendant admitted setting victim on fire and then denied it, was for consideration of jury.
6. Murder — setting fire to victim — contradictory statements of victim — admissible.
Testimony of witnesses called by defendant in course of his murder trial, as to statements made by victim who died as result of burns, that she did not know how she was burned was admissible because it was contradictory to testimony of other witnesses as to statements made by victim.
Headnotes as approved by Jones, J.
APPEAL from the Circuit Court of Lauderdale County; ARLO TEMPLE, J.
Wilbourn, Lord Williams, H. Wingfield Glover, Jr., Harry L. Hopkins, Meridian, for appellant.
I. The defendant's constitutional right to counsel has been violated because counsel was not appointed during a critical stage of his case. Crooker v. California, 357 U.S. 433, 2 L.Ed.2d 1448, 78 S.Ct. 1287; Escobedo v. Illinois, 378 U.S. 478, 12 L.Ed.2d 977, 84 S.Ct. 1758; Gibbs v. Burke, 337 U.S. 773; Gideon v. Wainwright, 372 U.S. 342, 9 L.Ed.2d 804, 93 A.L.R. 2d 733; Hamilton v. Alabama, 368 U.S. 52; Powell v. Alabama, 287 U.S. 45; United States Ex Rel. Reid v. Richmond, 295 F.2d 83 cert. den. 368 U.S. 948; Utah v. Sullivan, 227 F.2d 511 cert den. 350 U.S. 973.
II. The State has not proved the corpus delicti of the crime of murder.
A. The State has failed to produce testimonial or documentary evidence to establish the death of Henrietta Smith. Barclay v. Smith (Miss.), 43 So.2d 213; Cockrell v. State, 32 Ala. App. 618, 29 So.2d 152; Jackson v. State, 228 Miss. 604, 89 So.2d 626.
B. The State has not produced evidence to show the efficient proximate cause of death of Henrietta Smith, and expert testimony as to such evidence based on speculation, surmise, conjecture and mere possibilities is insufficient to submit a homicide case to the jury. Buford v. State, 219 Miss. 683, 69 So.2d 826; Schroer v. State, 250 Miss. 84, 160 So.2d 681; Watts v. State, 210 Miss. 236, 49 So.2d 240; Westbrook v. State, 202 Miss. 426, 32 So.2d 251; 20 Am. Jur., Evidence, Sec. 795.
C. The State has not proved the criminal agency of the defendant aliunde alleged admissions of the defendant.
1. The Court erred in allowing testimony of Charlie Clark and T.H. Essix introduced over timely objection of the defendant at the trial of this cause concerning what the deceased said after she was burned. Such evidence was hearsay and not part of the res gestae exception to the hearsay rule. Haney v. State, 129 Miss. 486, 92 So. 627; Kendrick v. State, 55 Miss. 436; King v. State, 65 Miss. 576, 5 So. 97; Mayes v. State, 64 Miss. 329, 1 So. 733, 60 Am. Rep. 58.
2. The Court erred in allowing testimony introduced over timely objection of the defendant at the trial of this cause which concerned what the deceased said, after admission to the hospital, to spectators, in the presence of the defendant, even though same was denied immediately by the defendant. Anderson v. State, 171 Miss. 41, 156 So. 645; Brown v. State, 78 Miss. 637, 29 So. 519; Garner v. State, 120 Miss. 744, 83 So. 83; Johnson v. State, 90 Miss. 317, 43 So. 435; Mitchell v. State, 171 Miss. 4, 156 So. 654; Robinson v. State, 235 Miss. 100, 108 So.2d 583; Stribling v. State, 124 Miss. 141, 86 So. 897; 22 C.J.S., Criminal Law, Sec. 734(a) (1); Wigmore, Evidence, Sec. 1071.
3. The corpus delicti must be proved beyond a reasonable doubt by evidence aliunde extrajudicial admissions. Poole v. State, 246 Miss. 442, 150 So.2d 429; Black's Law Dictionary, word "confession"; Jones, Evidence, Sec. 398.
III. The Court erred in allowing Dr. Holladay to testify from X-Rays and laboratory reports not made by Dr. Holladay, but in fact made by other doctors. Wild v. Bass, 252 Miss. 615, 173 So.2d 647; Wigmore, Evidence (3d ed.), Secs. 650, 654, 657, 688.
IV. The Court erred in refusing to admit the testimony of Susie Glover and Dr. Patino of a statement of Henrietta Smith inconsistent with prior statements in evidence. Patino's evidence should have been admissible also as a statement given by Henrietta Smith, his patient, as history of how she was burned. 20 Am. Jur., Evidence, Sec. 629; Annos. 67 A.L.R. 10, 80 A.L.R. 1527, 130 A.L.R. 977; McCormick, Evidence, Sec. 266.
V. The Court erred in submitting the case to the jury where defendant was the only "surviving witness" to the incident, testified in his own behalf, and his testimony was not refuted by the circumstances or common knowledge. Weathersby v. State, 165 Miss. 207, 147 So. 481; Westbrook v. State, supra.
VI. The State failed to prove malice aforethought or deliberate design. Jordan v. State, 248 Miss. 703, 160 So.2d 926.
VII. The lower court erred in not granting defendants motion for directed verdict, motion for peremptory instruction and motion for new trial. There is no competent evidence on which the jury could base its verdict.
R. Hugo Newcomb, Sr., Asst. Atty. Gen., Jackson, for appellee.
I. Cited and discussed the following authorities: Alexander v. State, 251 Miss. 847, 171 So.2d 517; Barcus v. State, 49 Miss. 17, 19 Am. Rep. 1; Bond v. State, 249 Miss. 352, 162 So.2d 510; Bowman v. State, 141 Miss. 115, 106 So. 264; Bufkin v. State, 134 Miss. 116, 98 So. 455; Cobb v. State, 235 Miss. 57, 108 So.2d 719; Cole v. State, 172 Miss. 19, 159 So. 296; Gangloff v. State, 242 Miss. 168, 134 So.2d 481; Heard v. State, 177 Miss. 661, 171 So. 775; Hill v. State, 199 Miss. 254, 24 So.2d 734; Jackson v. State, 228 Miss. 604, 89 So.2d 626; Martin v. State, 203 Miss. 187, 33 So.2d 825, 2 A.L.R. 2d 640; Matthews v. State, 243 Miss. 568, 139 So.2d 386; Motley v. State, 174 Miss. 568, 165 So. 296; Park v. State, 240 Miss. 774, 128 So.2d 870; Poole v. State, 246 Miss. 442, 150 So.2d 429; Starks v. State, 245 Miss. 238, 147 So.2d 503; Thompson v. State, 220 Miss. 200, 70 So.2d 341; Wallace v. State, 203 Miss. 504, 35 So.2d 703; Sec. 2473, Code 1942; 20 Am. Jur., Evidence, Sec. 822 p. 692; 22 C.J.S., Criminal Law, Secs. 301, 302, 331; 32 C.J.S., Evidence, Sec. 403; Black's Law Dictionary (3d ed.) 328.
This case comes from the Circuit Court of Lauderdale County where appellant was convicted of murder of one Henrietta Smith and was sentenced to life in the State Penitentiary. We are compelled to reverse the case because of errors in admission and exclusion of evidence.
There are other assignments of error, but we consider none of them well-taken other than those herein specifically mentioned.
The appellant and the said Henrietta Smith were living together and occupying one side of a house, the other side of which was occupied by one, Charlie Clark.
On or about January 17, 1965, the said Henrietta Smith was burned to such an extent that she later died. The appellant was charged with setting her on fire allegedly with kerosene. On this particular night, Charlie Clark testified he was asleep and was awakened. He heard Henrietta say, "Don't come in here, you stay in there." He dozed back to sleep and heard a loud noise, and Henrietta say, "I am burnt up", after which he heard Henrietta say, "Walter, you have burned me up. Somebody get me to a doctor. Don't let me die, I am burnt up." Charlie Clark dressed and ran to the next door neighbors' house; and, seeing the smoke coming out the door, he tried to get the fire department. Then he went up the street to call the ambulance. He said he talked to his neighbor awhile and appellant came there and asked the neighbor to carry Henrietta to the doctor. The neighbor said his car was out of order and appellant went to another neighbor's house to call the ambulance.
(Hn 1) T.H. Essix, the neighbor who lived next door testified. After Charlie Clark was there, the defendant came and asked if he would carry Henrietta Smith to the hospital. When asked, "Why?" Walter said, "Well, I done set that mother — afire." Later he heard Henrietta say, "Oh, oh, oh, Walter, why did you burn me up?" Walter said, "I don't know", then he left to call the ambulance. Objection was made to the testimony of Charlie Clark as to what Henrietta Smith said and also as to what T.H. Essix had heard Henrietta say. The objection was that it was not part of the res gestae but hearsay. We hold that Charlie Clark's testimony was admissible, as being part of the res gestae. Thompson v. State, 220 Miss. 200, 70 So.2d 341 (1954); Magee v. State, 145 Miss. 227, 110 So. 500 (1926).
(Hn 2) The testimony of T.H. Essix as to the appellant's statement of what he did was, of course, admissible. (Hn 3) Also, T.H. Essix's testimony as to what he heard Henrietta say and the appellant's response thereto was admissible, as a declaration against interest.
Lavonne Stallings was an attendant of the ambulance service which removed Henrietta from her home to the hospital. At the emergency room of the hospital, in addition to Henrietta, there were several people present — two policemen, Mr. Harry Hughes, some other man with the police department, Walter Gamble, and two or three others. Stallings testified that when Mr. Hughes came in he asked Henrietta what happened and she said that Walter Gamble tried to burn her up. She said he knocked her down, poured kerosene on her, struck a match, stuck the match in her ear, and said, "I am going to see if you will burn now, goddam you." (Hn 4) The witness stated Walter Gamble heard the statement and said he did not do it, and said, "I tried to help you." The witness also testified that Walter Gamble had kerosene on him; it was on his leg from his hip to his knee. The whole front of his pants was wet. That part of the witness' evidence as to Henrietta's accusation should not have been admitted inasmuch as appellant, according to the witness' testimony, denied immediately such accusations. 22A C.J.S. Criminal Law § 734(2) at 1080 (1961); Underhill, Criminal Evidence § 259 at 489 (4th ed. 1935).
Annelle L. Beard, a nurse at the hospital, was introduced and testified to some statement that Henrietta made in the presence of Walter, but she said the only thing she heard Henrietta tell Mr. Hughes was about her side of the story. The nurse also heard Walter Gamble deny it. This testimony as to accusations made by Henrietta and denied by appellant should not have been admitted.
Howard Moore, a policeman, testified about statements by Henrietta at the hospital accusing defendant of pouring kerosene on her and lighting it. He said Walter Gamble was in the room but there is no proof that he heard the statement or whether he denied it. On retrial, if it is not established that defendant heard these statements or was in position where he should have heard them, and did not deny same, this evidence should not be admitted.
(Hn 5) Mr. Harry Hughes, constable, was at the hospital when the statements accusing defendant were made by Henrietta. He said Walter was present, and when witness asked her what happened, her reply was, "Lordy, Mr. Harry, Walter done burned me up." He said he asked her again what happened and she later stated she and Walter had left the house. She gave him some money to get some whiskey and they got the whiskey, but Walter would not pay for it. They got in an argument, or fight, at the house and Walter knocked her down, poured kerosene on her, and said, "Goddam you, let's see if you will burn." And further said that he set a match to her. He testified further that when he was talking to her, Walter was over by the sink. Witness went to him and asked, "What about it, Walter?" He said, "I set her on fire." He then sat around the table with two other officers and asked her to repeat what she had said, which she did. This time the witness went over to Walter Gamble and he said, "Henrietta, when you told Mr. Harry, you didn't tell him the whole truth. I was the one who called the ambulance." The witness testified that later Walter denied that he did it. In view of the statement by the witness that the defendant admitting setting her on fire and then denied it, we hold the evidence was for the consideration of the jury.
(Hn 6) After the state rested, defendant introduced Dr. Gilberto Patino and Susie Glover. Susie Glover was related to appellant, being his aunt and having reared him. She undertook to testify to a visit to see Henrietta Smith in the hospital, where they discussed the cause of the burns. This was objected to; the jury retired, and the defendant offered to show by this witness that Henrietta had told her that she (Henrietta) didn't know how she got burned. The objection to this testimony was sustained.
Dr. Gilberto Patino was also introduced by the defendant. He is employed at the Matty Hersee Hospital and was on call the night Henrietta was admitted. During the admission procedure and subsequent treating of Henrietta Smith, he asked her how she was burned. The state objected to this, and objection was sustained. The witness was also asked about the medical history she gave as to how she was burned. Objection was sustained thereto. Attorneys for defendant offered to prove by this witness that when she was admitted to the hospital, and in the history given, Henrietta told him she did not know she was burned. The history was given after Henrietta had talked to the parties that testified for the state. Objection to this testimony was sustained.
The testimony of Susie Glover and Dr. Patino should have been admitted because it was contradictory to the statements shown by the other witnesses to have been made by Henrietta and was for the consideration of the jury in considering whether the statements were in fact made by Henrietta and, if so, whether true.
For the errors mentioned, this case is reversed and remanded.
Reversed and remanded.
Ethridge, C.J., Gillespie, P.J., and Rodgers and Robertson, JJ., concur.