Summary
In Hendrix v. State, 172 Miss. 589, 161 So. 151, the state of enmity on the part of deceased toward defendant had existed for "some months."
Summary of this case from Washington v. StateOpinion
No. 31425.
May 6, 1935.
1. HOMICIDE.
In murder prosecution, refusal to admit all threats and previous manifestations of hostility by deceased against accused held error, where there was recent declaration of reformation by deceased and it became material point for decision whether that declaration of reformation was in good faith, and whether accused would be justified in disbelief of good faith thereof.
2. HOMICIDE.
Wherever there is doubt, confusion, dispute, or conflict as to origin of difficulty, or as to who was aggressor in difficulty which resulted in death, and when such fact is pivotal one in case, testimony of uncommunicated threats, and nature and character of previous difficulties, wantonly provoked by deceased, is admissible, provided testimony shows some overt act on part of deceased at time of fatal encounter.
APPEAL from the circuit court of Chickasaw county.
HON. T.E. PEGRAM, Judge.
Otis Hendrix was convicted of manslaughter, and he appeals. Reversed and remanded.
Rush H. Knox, of Jackson, for appellant.
The testimony with reference to all of the threats and conduct of the deceased which had a tendency to show the hostile feeling on the part of the deceased toward the appellant was competent, and the trial court committed error in refusing to allow the defendant in the trial of this case to tell the jury what happened in the poolroom the night before the killing the next day, as well as the hostile demonstrations on the part of the deceased the day before the killing when deceased came to Wofford's store looking for the appellant, armed with a shot gun; and what the deceased said when he came in Wofford's store armed with a shotgun at the time appellant was in hiding, and what the deceased said then and there to Wofford with reference to this appellant was also competent; the court holding that the fact that the deceased, armed with a shotgun, went to Wofford's store looking for the deceased was incompetent, and in his ruling held that all this evidence was incompetent and stated that he was so holding in order that the defendant could get the benefit of the adverse ruling.
Brown v. State, 88 Miss. 166, 40 So. 737; Lee v. State, 160 Miss. 618.
The court erred in refusing to allow the appellant to explain to the jury just why he shot and killed the deceased.
It is true that the jury are to determine all issues of fact, but they should be given the advantage of all available evidence as to the facts in order that they may justly and rightfully decide the issue.
Underhill on Criminal Evidence (2 Ed.), section 59.
Certainly the accused should have been permitted on a direct-examination to explain his conduct, and to state to the jury why he killed the deceased, and he should have been permitted to "fully unfold and explain his actions and state the motives which he claims prompted them." He knew better than anyone else what intention was present in his mind when he fired the fatal shot.
Hester v. State, decided by this court on April first, No. 31608; Underhill on Criminal Evidence (2 Ed.), section 59.
Wm. H. Maynard, Assistant Attorney-General, for the state.
The lower court's ruling with reference to the admissibility of testimony as to threats was proper.
We are well aware of the rule laid down by previous decisions of this court that merely because a threat may be conditional is not sufficient reason to exclude it. However, an examination of these cases, shows that the condition laid down in the threat was later met.
Echols v. State, 99 Miss. 683, 55 So. 485; Clark v. State, 123 Miss. 147, 85 So. 188.
If the court considers the action of the circuit judge in refusing to allow this alleged threat to be introduced erroneous, this erroneous action would not be sufficient to require a reversal of this case. At various other places in the record the circuit judge allowed appellant to introduce four other distinct threats made by deceased against appellant.
Powell v. State, 145 Miss. 252, 110 So. 515; Richards v. State, 155 So. 429.
Appellant's seventh assignment of error is that the court erred in refusing to allow appellant to explain to the jury why he shot and killed the deceased, the testimony upon this point being where appellant was asked: "Explain to the jury why you shot him?" The lower court ruled this question out on the ground that this was for the jury to determine. Admitting, for the sake of argument, that the court should have allowed this question to be answered by appellant, we cannot see how it would be reversible error, as previous to this question appellant was allowed to give a full explanation of why he had shot the deceased.
Argued orally by Rush H. Knox, for appellant, and by Wm. H. Maynard, for the state.
Appellant, the defendant, was indicted for murder, and on the trial was convicted of manslaughter. He assigns as error, among other assignments, that the court excluded from the jury much of the material evidence offered by defendant of previous threats and assaults and other hostile maneuvers by deceased against the defendant, all unprovoked by the defendant.
In reviewing that assignment we must take the case as made by the undisputed proof, plus the evidence introduced by the defendant, plus the evidence offered by the defendant but excluded by the court. The case thus considered is this:
There had been an enmity on the part of the deceased towards the defendant for some months, the exact time not being disclosed by the record, characterized by wanton insults, abuses, and assaults by deceased upon the defendant. For instance, on one occasion some time before the homicide, the deceased had taken some money from the defendant in a neighborhood store, and upon protests by the defendant, the deceased kicked him around, stating at the time that if the defendant did not like it he would kill him. About two weeks before the homicide, the defendant had informed the officers that the deceased was in possession of intoxicating liquors, which the officers destroyed. When the deceased learned of the defendant's part in this matter, the deceased met him in Paine's store, and cursed him most bitterly and uttered the most vicious threats against him. In the early afternoon of the day before the killing the defendant went to the light plant which was being operated by the deceased to see a negro there employed, and the deceased repeated his abuses and threats, and, with a knife, ran the defendant away. Some short time thereafter, and on the same afternoon, the deceased, with a shotgun, appeared in the village to which defendant had gone, and the deceased inquired at Stevenson's filling station, which defendant sometimes visited, whether the defendant had been there, and being informed that defendant had gone up the street deceased followed in that direction. The defendant had gone into Wofford's store, and soon the information came to those therein that the deceased was in pursuit of the defendant and was armed with a shotgun, and the storekeeper hid the defendant. In a short while the deceased came into the store inquiring for the defendant, and the storekeeper contrived to persuade the deceased to leave. In about fifteen minutes the defendant came out of his hiding place and started to Crawford's store, when he discovered that the deceased was following him. The deceased called to the defendant to stop, but the defendant failed to stop, whereupon the deceased shouted to him: "You red-necked son of a bitch, I will kill you before Saturday night." The defendant succeeded in getting into Crawford's store, which apparently was a place friendly to the defendant, and the deceased, after passing there in a threatening manner, temporarily departed. At Crawford's store the defendant saw a shotgun, which he procured that night after the pool room incident, hereafter to be mentioned. During the course of the same afternoon, a neighbor named Darby saw the deceased and undertook to persuade him to drop the trouble, whereupon the deceased pronounced curses against the defendant, charged him with larceny, and declared that he was determined to stop him.
That night the defendant and several others were playing pool in a pool room in the village, when suddenly the deceased appeared with a shotgun which he drew on the defendant telling him to get out into the street, that he expected to kill him when he reached the street, and by punching the defendant in the back with the gun he drove the defendant to the door, when the defendant ran and escaped, followed by the same character of threats of death which the deceased had continuously before been uttering. The defendant then went to the store and procured the shotgun mentioned in the next preceding paragraph.
On the following morning defendant bought some shells for the gun, and, armed with it, he went to a filling station to catch a conveyance to go to the county seat to see the sheriff to seek some sort of protection. After waiting there awhile and failing to see a conveyance going to the courthouse town, he went across the street to Darby's store, where he was told by a messenger from the mayor that the deceased had just been interviewed by the mayor and had promised the mayor that he would cease his conduct towards the defendant and would drop the matter. The defendant thereupon took the shotgun and started to Crawford's store, from which he had taken the gun, in order to return it.
As the defendant was proceeding down the street towards the store last mentioned, and on the same side of the street with the store, he saw the deceased and a brother of the deceased standing at the intersection of the streets not far from the store. As defendant neared the store the deceased and his brother approached him, and when they had approached within a few feet of him, he stopped and ordered the deceased to stop, remarking to the deceased and his brother, "Boys, I have done run from you all long enough and will not go backward another step;" to which the deceased replied, "You will run or I will kill you," and the deceased and his brother continued to advance in a threatening manner, whereupon when they had arrived within eight or ten feet from the defendant, he shot and killed the deceased, and the brother of deceased immediately abandoned the encounter.
In view particularly of the assurance given by the deceased on that morning to the mayor, which information had been communicated to the defendant a few minutes before the homicide, to the effect that the deceased would cease his pursuit of, and change his attitude towards, the defendant, it was of vital importance, in justice to the defendant, that all the facts above set forth and which were either produced in evidence or offered to be proved by the defendant should be allowed to be fully shown by him. If the court had so fully allowed, the jury would have been justified in concluding that the assurance given by the deceased to the mayor was not given in good faith, that the deceased had not in actual fact abandoned his previous attitude and disposition, and that his purpose in company with his brother, in approaching the defendant on the immediate occasion of the homicide, was to get close enough to the defendant to take the gun away from the defendant, and thereupon to carry out his previous deadly maneuvers and threats. Or if the jury did not so conclude, then they might well have concluded, putting themselves in the place of the defendant, that the defendant, in view of all that had previously transpired, was well justified in anticipating, and in acting upon the anticipation, that the actual attitude and purpose of the deceased, so accompanied, was as last above stated.
But the court refused to admit in evidence before the jury all the threats and previous manifestations of hostility by the deceased against the defendant, and, by its rulings, literally cut to pieces the evidence offered by the defendant of those matters, and while admitting some of them excluded others of distinctly material importance. It has long been settled in this state, and we quote here from Brown v. State, 88 Miss. 166, 171, 172, 40 So. 737, "that wherever there is doubt, confusion, dispute, or conflict as to the origin of the difficulty, or as to who was the aggressor in the difficulty, which resulted in the death, and when such fact is the pivotal one in the case, testimony of uncommunicated threats, and the nature and character of previous difficulties, wantonly provoked by the deceased, is always admissible, provided the testimony shows some overt act on the part of the deceased at the time of the fatal encounter. . . . We would reverse the case upon this ground alone, even if it were the sole error in the record. Courts should not attempt to whittle away the rights of defendants upon trial for their lives. Every ruling should resolve any doubt in favor of the accused."
It is no sufficient compliance with the above rule that some of the threats or some of the previous hostile maneuvers by the deceased shall be allowed to be shown; but all of them should be received, especially in a case such as this, where there has been a recent declaration of reformation by the deceased, and it becomes therefore a material point for decision whether that declaration was in good faith, and whether the defendant would be justified in disbelief of the good faith thereof. And in such a case evidence of impositions upon and open hostility towards the defendant by the deceased going back over a continuous course, although of considerable time, would be admissible as logically and rationally pertinent to the inquiry whether an enmity and hostile purpose so long and so persistently maintained and openly demonstrated by the deceased would probably be, in the light of human experience and observation, so suddenly abandoned, as was asserted as a material part of the state's case here. 6 Ency. Ev., p. 646; 30 C.J., p. 197, sec. 425; 2 Wharton Crim. Ev. (10 Ed.), p. 1726.
Reversed and remanded.