Opinion
No. 39370.
December 6, 1954.
1. Criminal law — admissions — self-serving declarations.
In murder prosecution, wherein constable who took accused into custody after killing testified that accused admitted at scene of killing that he did the shooting of deceased but contended he did it in self-defense, Court did not err in excluding additional testimony to the effect that while constable was taking accused to jail accused kept maintaining that the shooting was in self-defense, as such latter statements made away from the scene of the killing were self-serving and not admissible.
2. Criminal law — evidence — unlawful search of third party's premises — defendant cannot object.
In prosecution for murder of deceased who was shot on premises of third person, objection by defendant to introduction of empty shotgun shells found by officer on such premises, on ground that officer had no search warrant was properly overruled where defendant was not in possession of the premises, for third person was the only one who could have taken advantage of a search of the premises without a warrant therefor.
3. Criminal law — manslaughter — unlawful acts — intimately connected with the whole act.
In such case, wherein evidence disclosed that six shots in rapid succession were fired from shotgun by defendant, and that two shots took effect in body of deceased, evidence that in addition to shooting deceased the defendant shot and killed a hog and fired a shot into third party's home, which deceased was about to enter when shot by defendant, was properly admitted, over objection that evidence tended to show commission of other offenses, since the firing of the six shots, in addition to showing malice, were so intimately connected with the whole act that it would be difficult to separate them.
4. Criminal law — witnesses — cross-examination of defendant — not prejudicial.
Action of trial court in overruling motion for mistrial made at conclusion of cross-examination to which defendant was subjected by the district attorney, where such cross-examination, though vigorous, was not abusive or prejudicial to the defendant.
5. Criminal law — witnesses — severe cross-examination.
Where a witness voluntarily takes the stand and testifies, he is subject to cross-examination and so long as there is no abuse of the privilege of cross-examination and no prejudice results therefrom except such prejudice as might arise from disclosing the truth, the severity of the cross-examination is no ground for reversal.
6. Criminal law — defendant's request to confer with State's witnesses — examine confession — substantially complied with.
Where defendant, while jury was being selected, made motion to be permitted to confer with State's witnesses and to see confession, which he had signed, and trial court permitted defendant to confer with all the State's witnesses as soon as selection of jury was completed and, when State offered confession in evidence, it was first tendered to counsel for defendant, and confession was not admitted until Court first made a preliminary inquiry into its admissibility, there was no prejudicial error. Sec. 1659, Code 1942.
7. Criminal law — instructions — manslaughter — refusal not error.
Under facts of case, Court did not err in refusing to give instruction that jury could convict defendant of manslaughter.
Headnotes as revised by Hall, J.
APPEAL from the circuit court of Jasper County; HOMER CURRIE, Judge.
J.M. Travis, Heidelberg, for appellant.
I. Where a confession is introduced by the State, the accused has a right to require the whole of the statement, or conversation containing it, go to the jury. It is permissible for the State to prove the entire confession and the conversation containing it, but where it puts in evidence a confession which is part of the conversation, accused is entitled to prove as part of this case the entire conversation. 16 C.J. 1481.
II. The Court erred in admitting the shotgun shells.
III. On a prosecution for a particular crime, evidence which in any manner shows or tends to show that accused has committed another crime solely independent from that for which he is on trial, even though it is a crime of the same sort, is irrelevant and inadmissible. The rule extends to proof of an accusation of another crime, as well as evidence of the actual commission. 16 C.J. 1132.
IV. The cross-examination of the appellant by the District Attorney was unfair, insinuating and incriminating, and constituted reversible error; and a mistrial should have been entered in this case.
V. The Court erred in overruling motion of the appellant requesting the right to confer with witnesses for the State and for permission to examine into and see the written confession of appellant before the trial of this case.
VI. The Court erred in refusing manslaughter instructions requested by the appellant.
Joe T. Patterson, Asst. Atty. Gen., Jackson, for appellee.
I. The Court properly permitted the appellant to show that at the time he admitted shooting the deceased that he shot him in self-defense, and properly sustained the objection of the State to appellant's self-serving declarations made to the officer while en route to the jail. Fortner v. State (Miss.), 56 So.2d 17.
II. The Trial Court committed no error in permitting the witness, Thatch, to testify as to the shotgun shells found on the premises by him. The proof clearly shows that the homicide occurred on the premises of Annie Sanders. Therefore, the premises not being the premises of the appellant, but being the premises of another, appellant cannot complain of any search thereof, even though the search be unlawful, which we do not concede. Brooks v. State (Miss.), 52 So.2d 609.
III. The Trial Court committed no error in admitting in evidence proof that the appellant, after firing the shots that killed deceased, fired several more shots, one of which struck the window of the cafe of Annie Sanders and another which killed a hog in a pen a short distance from where appellant fired the shots. Collier v. State, 106 Miss. 613, 64 So. 373; Raines v. State, 81 Miss. 489, 33 So. 19; Stone v. State, 210 Miss. 218, 49 So.2d 263.
IV. This record discloses a most vigorous cross-examination of the appellant by the District Attorney, but we submit that in the light of this record as a whole, such cross-examination was justified.
V. The Court properly sustained that part of appellant's motion with reference to permitting counsel for the defendant to confer with any and all witnesses, "regardless of whether they are designated as State witnesses or defense witnesses," and properly declined to compel the State to deliver to counsel for the appellant the alleged confession in its possession. Counsel for the appellant was not privileged to see this evidence in possession of the State's Attorney until such time as same was offered in evidence. This record clearly shows that the District Attorney, before offering the statement made by the appellant in evidence, tendered the statement to counsel for the defendant for his examination of same prior to offering it in evidence, and that counsel for the appellant declined to accept and examine same.
VI. While Trial Court should determine prior to permitting confession to go to jury, whether it was or was not voluntary, admitting confession in evidence is not error when it purports to have been made voluntarily, without first hearing testimony to support the objection of involuntariness, in absence of an offer by defendant to prove the involuntary nature of the confession, or a request for a preliminary investigation of the matter. Stone v. State, supra.
VII. The State's evidence shows without contradiction that the confession was freely and voluntarily made. The record also shows that when counsel for appellant objected to introduction of the statement in evidence, the Trial Judge of his own motion excluded the jury and extended to appellant full opportunity to offer proof in support of his objection, and to offer any proof that he may have to show that the statement was not freely and voluntarily made, all of which counsel for appellant declined to do.
VIII. The record clearly shows that the Trial Court properly refused to grant the requested manslaughter instructions. The evidence herein clearly shows that there was no element of manslaughter in the case. This appellant either went to the home of his uncle, obtained his uncle's shotgun and six shells and returned to the cafe for the deliberate purpose of killing the deceased, or he killed the deceased in self-defense as contended by him. Newell v. State, 209 Miss. 653, 48 So.2d 332.
Appellant was convicted of the murder of Will Roy Carter and, on the verdict of the jury, was sentenced to the penitentiary for life, from which he appeals.
The killing occurred on a Saturday night at the dwelling house of Annie Sanders about two miles east of Heidelberg and near Highway No. 11. On the same premises where the killing occurred and about 45 feet from her dwelling house Annie operated a cafe wherein there was a music machine and floor space for dancing. The appellant went to this cafe before midnight and was there when Will Roy Carter came in in company with Albert Robinson and two women. They played the music machine and danced and after a while the appellant and Will Roy Carter had a scuffle and appellant threw Will Roy to the floor. Annie came out of the kitchen and separated them. In a few minutes they had another scuffle in which Will Roy threw appellant to the floor and Annie again separated them and told the appellant to leave. Just prior to this Albert Robinson took the two women in his car and left. Appellant went to the home of his wife's grandfather, about one-fourth of a mile away, and obtained a 12-gauge pump gun with six shells after which he returned to the cafe. Will Roy Carter had gone out of the cafe toward Annie's home and as he was going up the steps appellant shot him twice in the back, one shot taking effect in the center of the back of his head and neck and the other taking effect on the side of the neck to the rear. Appellant claims self-defense. The officers found four empty shotgun shells within a radius of 18 inches of each other at a distance of 32 feet from the steps and appellant himself admitted, while claiming self-defense, that he was about 30 feet from Will Roy Carter when the shooting occurred. Carter was unarmed but a search of his body disclosed a knife in his pocket which had not been opened.
(Hn 1) After the shooting appellant carried the shotgun back to the place where he had obtained it and then returned to the cafe. In the meantime a constable had been called who came shortly and he testified that appellant admitted doing the shooting but said that he did it in self-defense. This constable was asked whether on the way to the jail the appellant kept maintaining that the shooting was in self-defense and this evidence was excluded on objection by the State, which action is the basis of one of the assignments of error. The appellant got the benefit of his first statement to the constable that he killed the deceased but did it in self-defense. We do not think there was any error in excluding the other statements as to self-defense which occurred after appellant had left the scene in the custody of the officer. Fortner v. State, 56 So.2d 17, not reported in the State Reports, and Lewis v. State, 173 Miss. 821, 163 So. 387, hold that such statements were self-serving and not admissible.
(Hn 2) Appellant objected to the introduction of the shotgun shells found on the premises by the officer on the ground that the officer had no search warrant for the premises. The objection would have been well taken if appellant had been in possession of the premises, but he is in no position to complain here because Annie Sanders and her family were the only ones who could have taken advantage of a search of the premises without a warrant therefor. Brooks v. State, 52 So.2d 609, not reported in the State Reports. McLemore v. State, 178 Miss. 525, 172 So. 139.
(Hn 3) The evidence disclosed that in addition to the two shots which took effect in the body of the deceased he also fired a shot into the home of Annie Sanders and another into the cafe and also that he shot and killed a hog to the rear of the building and in addition fired one other shot. All of these six shots were in rapid succession. But appellant contends that testimony as to all the shots except those which struck the deceased was incompetent because it showed the commission of some crime other than murder. We do not agree with that position. In the case of Stone v. State, 210 Miss. 218, 49 So.2d 263, we said, after citing and reviewing numerous authorities, "In the case at bar there was no prejudicial error in admitting that part of the statement where appellant admitted the larceny of the pistol for it not only identified the instrument with which deceased was slain but it further presented to the jury for their consideration the fact that appellant deliberately armed himself with a deadly weapon which fact has a bearing on his motive and premeditated design to effect the death of deceased." In the Stone case we quoted as follows from Collier v. State, 106 Miss. 613, 64 So. 373: "Upon the trial of an indictment, a previous crime committed by defendant can be provided only: (a) Where it is connected with the one charged in the indictment, and sheds light upon the motive of defendant; or (b) where it forms a part of a chain of facts so intimately connected that the whole must be heard in order to interpret its several parts; * * *"
As we have pointed out, the six shots were fired in rapid succession and were so intimately connected with the whole act that it would be difficult to separate them. Moreover, the fact that the appellant was shooting into the houses and killed a hog on the same occasion and within a few seconds of each other was admissible to show malice on the part of the appellant. It discloses that he was on a wild shooting spree with little regard as to the consequences.
(Hn 4) Appellant further complains that the trial court should have sustained his motion for a mistrial at the conclusion of the cross-examination to which appellant was subjected by the district attorney. The fact is that appellant was subjected to a vigorous cross-examination but we find nothing abusive or prejudicial in any of the questions which were propounded to him. He made a full and complete written confession under oath on the day following the killing and admitted his guilt freely and voluntarily. He testified that the statement was free and voluntary, that no threats were made against him and no promises of reward held out to him in order to induce him to make the confession. He further testified that all the officers were nice to him and, yet, on the witness stand he undertook to repudiate the confession on the sole ground that because they were officers he was afraid, though at the same time admitting that none of them had put him in fear in connection with the confession. (Hn 5) When a witness voluntarily takes the stand and testifies, he is subject to cross-examination and so long as there is no abuse of the privilege of cross-examination and no prejudice results therefrom except such prejudice as might arise from disclosing the truth, the severity of the cross-examination is no ground for a reversal.
(Hn 6) Appellant, while the jury was being selected, made a motion to be permitted to confer with the State's witnesses and to see the confession which he had signed. The trial court permitted him to confer with all the State's witnesses as soon as selection of the jury was completed and, when the State offered the confession in evidence, it was first tendered to counsel for appellant. Moreover, the confession was not admitted until the court first made a preliminary inquiry into its admissibility. Under Section 1659, Code of 1942, appellant was probably entitled to have his motion for production of the confession sustained, but according to the record here, the written statement was tendered to counsel for appellant before it was offered and apparently in a relatively short time after the beginning of the trial, and he was in no manner prejudiced by the course which was taken by the lower court.
(Hn 7) Appellant finally contends that he was entitled to an instruction to the effect that the jury could convict him of manslaughter. In this case the appellant was guilty of a brutal murder and offered no excuse and no reasonable justification for it. He is fortunate, indeed, that the jury did not inflict the death sentence upon him. What we said in Newell v. State, 209 Miss, 653, 667, 48 So.2d 332, is particularly applicable here. See also Adams v. State, 175 Miss. 868, 874, 167 So. 59, 60, as well as numerous other authorities cited in the Newell case.
Finding no error, the judgment of the lower court is affirmed.
Affirmed.
Roberds, P.J., and Kyle, Arrington and Gillespie, JJ., concur.