Opinion
No. 32212.
November 9, 1936. Suggestion of Error Overruled November 30, 1936.
1. CRIMINAL LAW.
In murder prosecution wherein accused's attorney argued that accomplice had a "trade" with the State and that such "trade" or understanding was to effect that he would testify for State against accused, for which favor accomplice would be given life imprisonment, district attorney's argument "I can tell the jury that Cook did not have any trade with me" held not prejudicial where there was no evidence to justify either statement and, if district attorney was guilty of misconduct, it was brought on by accused's attorney.
2. WITNESSES.
In murder prosecution, cross-examination of accused as to why he did not take his wife and baby with him when he fled and why he did not contact them during time he was a fugitive held not objectionable, on ground that cross-examination amounted to comment on failure of accused's wife to testify in accused's behalf, where such questions were asked for purpose of testing truth of accused's claim of lapse of memory.
3. CRIMINAL LAW.
Instruction in murder prosecution that jury was not impaneled for purpose of convicting defendant "but for purpose of acquitting him" and that jury was not authorized to convict until State had shown beyond every reasonable doubt and to moral certainty guilt of defendant held properly refused and modified by striking out the words "but for the purpose of acquitting him."
4. HOMICIDE.
In murder prosecution wherein accused denied having made statement to deputy sheriff showing accused's guilt, his flight, and accurate memory of all facts, alleged error in admitting in rebuttal deputy sheriff's testimony that accused made voluntary statement admitting murder, his flight, and that accused told accomplice to go back and lay blame on accused, on ground that statement was confession of guilt and could not be offered except in chief, held harmless where there was no conflict in evidence as to accused's guilt.
APPEAL from the circuit court of Yalobusha county. HON. JNO. M. KUYKENDALL, Judge.
Stone Stone, of Coffeeville, for appellant.
The special bill of exceptions was prepared and signed by the presiding judge showing that the district attorney said to the jury, "I can tell the jury that Cook did not have any trade with me."
The circuit judge laboriously puts it in in two or three places that this improper statement by the district attorney was in response to the argument of defendant's counsel; however, we will not admit that this gives a right to the district attorney to testify in a law suit during his argument. The district attorney has no right to openly and flagrantly go beyond his limit in his argument and testify in the law suit and then have the circuit judge certify in the special bill of exceptions that this was in response to an argument of defendant's counsel.
The district attorney in his close examination of Mitchell, the defendant, was allowed, over our objection, to go much too far in his examination concerning the man's association with his family in the interval between the date of the crime and the defendant's apprehension. This was a very clear, though subtle, comment on the failure of defendant to put his wife on the stand, and a very clear holding up to the jury of the fact that the man had not put on, up to that time, his wife and calling attention of the jury to the fact that he was obligated to do so.
Next we take up the exception covering the court's modification of our instruction. Modification is covered by this: "The court instructed the jury for the defendant that you are not impaneled for the purpose of convicting the defendant but for the purpose of acquitting him, and you are not authorized . . .," and the court modified the instruction by striking out "but for the purpose of acquitting him." I am arguing this exception in my brief, but I will confess that I have no case in Mississippi upholding my contention for this clause in the instruction. At the same time I have no case in Mississippi condemning this clause in the instruction. It is true that I defended many men charged with murder before I ever saw this instruction but I know that it is in common use in more than one district of the state of Mississippi, and I desire a decision of the court as to whether or not we are justified in its use.
As to the testimony of Lowrance Walker, I think there is no need of argument to say that this is certainly classed up as a confession. After the jury came back in the box and he had been allowed, over our objection, to say that he asked the defendant, "if A.K. Burt was the man who caught him," and giving defendant's answer, "Hell, no," then we, for the defendant, objected to anything further, and then, over our objection specifically made, they allowed them to ask Walker, "Did Mr. Mitchell make any other statements?," and in answer he said, "I had Jim carry me up near Memphis and I told him to come back and tell them I done it all, lay it all on me. I was informed Jimmy came clear and I began to write back to New Orleans to my folks and if I had known today . . ."
There is no amount of argument that would even tend to convince anyone that this was not a confession, the most damning statement in the nature of confession that could possibly be conceived in the mind of man.
We say on the first part of this argument about Lowrance Walker's testimony, that it never was qualified as a confession, no matter at what stage of the trial it was offered. It was shown to have been in answer to an importunate question by this special officer.
The second phase of the argument on this testimony of Lowrance Walker is that while we do not abandon for one moment our position that it was never qualified as a confession but that allowing for the sake of argument that it was qualified as a confession, it should have been heard in the state's testimony in chief and not in rebuttal.
Hathorne v. State, 138 Miss. 11, 102 So. 771.
Webb M. Mize, Assistant Attorney-General, for the state.
The statement made by the district attorney in his closing argument to the jury was made after the defendant's counsel, in the preceding argument, had stated that the witness, Cook, had a trade with the state on the other charge for killing the other negro that they would not hang him and that was the reason he (Cook) testified for the state. The statement of the district attorney, therefore, was merely in answer to statement made by the defendant's counsel. This argument was entirely legitimate, due to the statement made by the defense counsel in his argument and was necessary in answer to the statement that Cook had made a trade with the state to save his neck on the other murder charge.
Furthermore, if there was any error committed by the court under this assignment of error, it was waived by appellant when he did not make a motion for a mistrial. He cannot take the chance of getting an acquittal by the jury after an objectionable comment has been made, unless he asks for a mistrial immediately upon the court's action on the alleged objectionable matter.
Allen v. State, 148 Miss. 229, 114 So. 352; Cotton v. State, 135 Miss. 792, 100 So. 383.
Appellant says in this court that certain questioning of defendant by state's attorney was a comment on the failure of the defendant to call his wife to testify in his behalf and that, therefore, it constituted reversible error. All of the objections to these questions were made on specific grounds in the court below, but appellant, in his brief, makes his objections on specific grounds, but changes the objections. The rule is that where an objection is made on specific grounds the objection goes to those grounds only and that other reasons for the incompetency of the evidence cannot be assigned and availed of on appeal.
Conwill v. State, 147 Miss. 118, 112 So. 868; Peters v. State, 158 Miss. 530, 130 So. 645; Johnson v. State, 154 Miss. 512, 122 So. 529; Goodyear Yellow Pine Co. v. Lumpkin, 158 Miss. 578, 130 So. 745.
Appellant assigns as error the action of the court below in modifying instruction No. A. Appellant says that he declined to use the instruction after the modification was made by the court. The appellant may have refused to use that particular instruction, but from the record it appears that the instruction was used with the modification.
The instruction, before the modification by the court, as far as I have been able to determine, has never been used by the courts of this state. It does not state a correct principle of law as the jury is never impaneled for the purpose of acquitting, or for the purpose of convicting, but a jury is impaneled for the purpose of hearing the evidence and to acquit, if the facts show the accused not guilty, and to convict if the facts show the accused guilty. There was no error in the court refusing to give the instruction as written.
There were fifteen instructions given at the request of the appellant. These instructions covered every known right that the defendant may have had and where the instructions given amply present the defense disclosed by the evidence, refusal of other instructions requested is not reversible error.
Crawford v. State, 144 Miss. 793, 119 So. 517; Mabry v. State, 71 Miss. 716, 14 So. 267; Dewberry v. State, 168 Miss. 366, 151 So. 479.
The testimony of Lowrance Walker was admissible for several reasons. First, it was admissible to impeach the testimony of defendant. He said he had remembered telling Lowrance Walker that he was caught by an address, when he wrote to some one in New Orleans and he further testified that he did not remember what took place the night before the death of Lewis Bryant or the night of the death of Lewis Bryant. Lowrance Walker's testimony impeached defendant's testimony on this proposition as it shows that defendant told Walker about what happened the night of the death of Lewis Bryant. Second, this testimony was competent to impeach the defense theory of the appellant. Defendant attempted to prove that he had lapses of memory and could not remember things that had happened and particularly could not remember what happened on the night of the homicide. The defendant having told Lowrance Walker what transpired certainly showed that defendant did know what happened on the night of the homicide and showed his participation in same.
Appellant contends that the statement made, if made, (which is a question for the jury) was in the nature of a confession and that it was not shown to be free and voluntary. Defendant's testimony in this regard shows that he talked to several persons on the Thursday preceding the trial and his testimony does not show that the statement, admission or confession was not free and voluntary. The statement made was against his interest. Declarations made by an accused person which are against interest are admissible in evidence and declarations by accused which constitute voluntary confessions are admissible in evidence.
Richberger v. State, 90 Miss. 806, 44 So. 772.
The fact that a confession is made to an officer does not render it inadmissible where it was not shown that threats, inducements or favors were made and an officer to whom the statement is made is not required to tell the defendant that what he tells him will be used against him.
Donahue v. State, 142 Miss. 20, 107 So. 15; Jackson v. State, 163 Miss. 235, 140 So. 683.
The case of Roney v. State, 167 Miss. 827, 150 So. 774, holds that it is within the trial court's discretion to allow substantive evidence to be introduced in rebuttal.
White v. Weitz, 169 Miss. 102, 152 So. 484.
Argued orally by W.I. Stone, for appellant, and by Webb M. Mize, for the state.
Appellant, a white man, was indicted in the circuit court of Yalobusha county for the murder of Lewis Bryant and his son, Coot Bryant, negroes. He was tried for the murder of the former, was convicted, and sentenced to be hung. From that judgment he prosecutes this appeal.
Appellant and Arthur Cook were jointly indicted for the murders. The indictment was returned at the July term, 1932, of the court. The crime was committed during that month. Appellant and Arthur Cook were brothers-in-law, the former having married the latter's sister. A severance was granted and Arthur Cook was tried at that term of the court for the murder of Lewis Bryant. He pleaded guilty and was sentenced to the penitentiary for life. Appellant fled the country and was not apprehended until September, 1935. He was tried, convicted, and sentenced in January of the present year.
There is little, if any, substantial conflict in the evidence. The family of Lewis Bryant consisted of himself, his wife, Missouri, and his son, Coot. They were all three at home when appellant and Cook came to their house about sundown. Appellant and Cook, the former being the leader, robbed Lewis Bryant of something over one hundred dollars, the exact amount not being shown. In the process of the robbery Lewis Bryant and his son Coot were blindfolded, their feet and hands were tied, and they were knocked insensible with a blackjack. While this was going on Missouri made her escape. Kerosene was poured on Lewis Bryant and his son and ignited with a match, which resulted in a fire that burned up their home with them in it. Appellant and Cook fled north that night. Cook took appellant in an automobile to some point near Memphis, Tenn., and left him there. They were aware that the negro family knew them, and they knew that Missouri, having escaped, would tell the story of the awful crime. When Cook left appellant, the latter told him to go back and lay the whole blame on him. Appellant went to Cuba, Mo., and there lived under an assumed name until his arrest in September, 1935.
The principal witnesses against the appellant were Arthur Cook and Missouri Bryant; they made out the case stated above. Appellant testified in his own behalf. He stated that he knew nothing about the crime; that for some years he had been suffering from "lapse of memory;" that he would go for several days at a time not knowing what had taken place; that if he took part in the crime he was unaware of it. Some of the members of his family corroborated his testimony.
One ground urged for reversal is the alleged misconduct of the district attorney in his closing argument to the jury. Appellant's attorney in his argument to the jury stated that Arthur Cook had a "trade" with the State on the charge of the murder of Coot Bryant, and that this trade or understanding was to the effect that he would testify for the State in appellant's case when apprehended and tried, for which he (Cook) would be given life imprisonment. The district attorney in his closing argument in reply thereto stated, "I can tell the jury that Cook did not have any trade with me." Appellant's attorney objected to this statement. The court, in ruling, used this language: "The district attorney will confine himself to the record." There was no evidence to justify either statement. Appellant's contention is without merit. If the district attorney was guilty of any misconduct it was brought on by appellant's attorney. If in making the statement he testified, as argued, appellant's attorney testified first — he provoked it, and brought it into the case. Now appellant will not be heard to complain of it.
On cross-examination of appellant by the district attorney he was asked why he did not take his wife and baby with him when he fled, and why he did not get in touch with them during the time he was a fugitive. He answered that lots of times he did not take his family with him. These questions were objected to upon the ground that they amounted to a comment on the failure of appellant's wife to testify in his behalf. This contention is without merit. Manifestly, these questions were asked for the purpose of testing the truth of appellant's claim of lapse of memory.
The court refused the following instruction as requested by appellant, and modified it as shown:
"The Court instructs the jury for the defendant, that you are not empaneled for the purpose of convicting the defendant (but for the purpose of acquitting him), and you are not authorized to convict him until the State has shown beyond every reasonable doubt and to a moral certainty the guilt of the defendant, and that it is the duty of each and every juror to decide the issue in this cause for himself, and if after hearing the instructions of the Court, and the testimony of the witnesses, and after free consultation with fellow jurors, any juror has a reasonable doubt as to whether the defendant is guilty of the charge or not, it is his duty, under his oath, to stand by his convictions favorable to a verdict of not guilty, even though it may result in a mistrial of this case, and the jury not agree.
"The Court: Modified by striking out the words `but for the purpose of acquitting him.'"
Thereupon the defendant declined to use it. The action of the court in so modifying the instruction is assigned and argued as error. It is not the law that the jury in a criminal case is organized for the purpose of acquitting the defendant. The instruction was erroneous, and the court was justified in modifying it by striking out the words "but for the purpose of acquitting him."
Appellant assigns and argues as error the action of the court in admitting the testimony of Lowrance Walker in rebuttal. Walker was a deputy sheriff. Appellant was asked on cross-examination if at a certain time and place he did not make a statement to Walker showing his guilt, his flight, and an accurate memory of all the facts. He denied making such a statement. Walker was put on the witness stand and testified that the statement was made to him and was voluntary, and that in it appellant admitted, in substance, the murder, his flight with Cook, and that he told the latter to go back and lay it all on him. Appellant argues that, under the decisions of our court, principally Hathorn v. State, 138 Miss. 11, 102 So. 771, this was a confession of guilt and could not be offered except in chief — not in rebuttal. The Hathorn Case should be considered along with Roney v. State, 167 Miss. 827, 150 So. 774. It is not necessary to decide this question because, if error, it was without any harm whatever. There was no real substantial conflict in the evidence as to apellant's guilt. As stated, he did not deny his guilt except to say, in effect, that if he had a hand in the homicides, he did not know it — he had a lapse of memory. The evidence of his guilt was undisputed. In such a case, the question of whether evidence belongs in chief or in rebuttal will not be considered. Comings v. State, 163 Miss. 442, 142 So. 19; Wexler v. State, 167 Miss. 464, 142 So. 501; Patterson v. State, 106 Miss. 338, 63 So. 667.
The judgment of the lower court is affirmed and Friday, December 11, 1936, fixed as date for the execution.
Affirmed.