Opinion
No. 33205.
October 17, 1938.
1. HOMICIDE.
Evidence held to authorize conviction of manslaughter, committed by cutting deceased with a knife during a scuffle.
2. CRIMINAL LAW.
In prosecution for murder, wherein evidence established that defendant actually stabbed deceased, but defendant alleged that he acted in self-protection, and instruction authorized finding that defendant cut or stabbed the deceased with a knife "as shown by the testimony in this case," use of the quoted words was not reversible error.
3. HOMICIDE.
In prosecution for murder, evidence that, immediately after the fatal cutting, defendant threatened to cut officers if they should approach, was admissible to show defendant's state of mind, especially in connection with evidence that defendant fled from arrest.
4. HOMICIDE.
In prosecution for murder, permitting the state to contradict defendant's testimony that he had been searched a second time was not prejudicial error, where the search was immaterial to and not connected with the homicide.
APPEAL from the circuit court of Jasper county; HON. EDGAR M. LANE, Judge.
Welch Cooper, of Laurel, and J.A. McFarland, of Bay Springs, for appellant.
Assuming that there was testimony tending to show that the appellant stabbed or cut deceased, still under the testimony of the appellant the court had no right to instruct the jury that if it believed beyond a reasonable doubt that appellant "cut or stabbed deceased . . . with a knife as shown by the testimony in the case . . ." This is a clear cut statement from the court that the evidence shows as a fact that appellant stabbed or cut the deceased.
No witness has said that appellant stabbed deceased. No one saw such an action. No one saw anything that appeared to be a thrust or stab. We submit, therefore, that the granting of this instruction was erroneous.
Sec. 989, par. b, Code of 1930.
We submit that the statement of Lester Cooper to the effect that appellant said: "Lester Cooper, don't any of you come down here. If you do I will cut every damn one of you," was made after the fight was over, and was no part of the fight, and its admission was highly prejudicial to appellant. It was no part of the res gestae. It threw no light on the fight. It confessed nothing.
It is elementary that a witness may not be contradicted on a collateral or immaterial matter.
Dunk v. State, 84 Miss. 452, 36 So. 609; Bell v. State, 38 So. 795; Ware v. State, 145 Miss. 247, 110 So. 503.
The evidence shows that the knife entered the upper third of the thigh and ranged upward into the abdomen. It is inconceivable that appellant could have consciously produced such a wound. The knife was above his head, yet the wound was ranging upward from a point lower than the scrotum. Manifestly, the wound was not the result of a stab or thrust on the part of appellant. It resulted from accident and misfortune when the two combatants fell into the gutter. We submit, therefore, that the homicide was excusable under paragraph b of Section 989 of the Mississippi Code of 1930.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
It is said that the instruction complained of nullifies the defendant's given instruction, this instruction giving the jury the right to acquit, if it believed that the defendant killed Paul Cooper as the result of an accident or misfortune while in the heat of passion upon a sudden and sufficient provocation.
It is a familiar rule of law that an instruction will be considered as a whole. Every clause or phrase in the instruction will be considered in connection with the whole instruction. This instruction told the jury that if it believed from the evidence, beyond a reasonable doubt, that the defendant cut or stabbed the deceased with a knife, as shown by the testimony in the case, etc., then it could return a verdict of guilty as to manslaughter.
The defendant's instruction referred to proceeds on the theory that this was an excusable homicide within the provisions of Section 989 of the Code of 1930. However, this court has already said that these provisions, with reference to excusable homicide, can never apply to a case where a deadly weapon figured in the killing.
Wood v. State, 64 Miss. 761, 2 So. 247; Long v. State, 163 Miss. 535, 141 So. 591.
It appears from the testimony of witnesses for the state that immediately after the cutting of Paul Cooper the appellant retired from the scene and stationed himself just a short distance away. The marshal of the town of Heidelberg started toward him and the appellant told him not to come where he was; that "If you do, I will cut every damn one of you." It is insisted that this statement was no part of the res gestae; that it confessed nothing, and that it threw no light on the fight. The acts and conduct of an accused subsequent to a difficulty frequently shed considerable light upon the difficulty itself. Frequently the mental attitude of an accused can be accurately gauged by statements made immediately after a difficulty and his conduct is frequently no less valuable. For instance, it is always competent for the state to show that following a difficulty the accused fled from the scene and evaded arrest. This is permissible, says the court, for the reason that it tends to show guilty knowledge and fear.
Brown v. State, 171 Miss. 157, 157 So. 363.
The appellant, on cross-examination, testified that he did go to the places testified to and admitted that he told the officer not to come where he was, although his testimony does not show that he admitted that he stated that he would cut anyone who came up on him. We submit that, in view of his testimony, error, if any, in the admission of this testimony, was rendered harmless by this character of testimony coming from the lips of the defendant himself.
Millette v. State, 167 Miss. 172, 148 So. 788; Rucker v. State, 152 Miss. 143, 118 So. 716; McPherson v. State, 124 Miss. 361, 86 So. 854.
We understand the rule to be that where a party takes a witness on cross-examination and inquires about collateral and irrelevant matters, such cross-examining party is bound, by the answer, or answers, made by the witness. He cannot later impeach upon these matters. But, in the case at bar, this testimony was not given by the defendant upon his cross-examination, but was brought out on his direct examination and as a part of the whole story of his defense. This testimony dealt with the transactions out of which this difficulty, which resulted in the death of Cooper, arose. This court has frequently said that evidence of events which lead up to and throw light on the main transactions, or is clearly helpful in the understanding of subsequent events, is admissible as a part of the res gestae. If this testimony of the defendant were admissible as a part of the res gestae, it was a material part of the case and as a result, the defendant was subject to impeachment as to all, or any part of his version of the res gestae.
Williams v. State, 73 Miss. 820, 19 So. 826; Walker v. State, 151 Miss. 862, 119 So. 796; Ware v. State, 145 Miss. 247, 110 So. 503.
This court has said that it will not reverse a conviction, unless it appears, after a full and complete trial, that there was error which would probably have influenced the jury.
Lott v. State, 168 Miss. 710, 152 So. 488; Comings v. State, 163 Miss. 442, 142 So. 19; Goins v. State, 155 Miss. 662, 124 So. 785.
On an indictment for murder in the killing of Paul Cooper, Virgil Morris was convicted of manslaughter and sentenced to serve a term of fifteen years in the state penitentiary.
The essential facts of the case are these: Appellant and deceased were sitting together in front of a cafe in the Town of Heidelberg when the deceased twitted Morris about having been searched at a show. This resulted in their engaging in a scuffle, and the deceased, being a man about fifty years of age, weighing in the neighborhood of one hundred and eighty pounds, the appellant about nineteen years of age, weighing about one hundred and thirty to one hundred and thirty-five pounds. In the scuffle, Cooper backed Morris into a stairway, where Morris stumbled and fell, and according to the State's evidence, Cooper retired to the edge of the sidewalk and was arranging his clothing, when Morris, with a butcher knife upraised in his hand, went upon Cooper, they again scuffled and fell into the gutter; the position of the parties in the gutter being uncertain, and in a moment the appellant arose from the gutter, wiping the knife on the curb, and walked away to a shed, about twenty feet from the scene; and one witness for the State testified that he saw him throw the knife away, and later a butcher knife was found about eighteen feet from the difficulty. Cooper was found to have been cut in the upper third of his thigh and thence into the abdominal cavity. The slash or wound was about fifteen inches from end to end, the wound in the abdominal cavity severing an artery; from the effect of which, he subsequently died in a hospital.
The dying declaration of the deceased was to the effect that they engaged in a scuffle and that he, Cooper, only held and pushed the appellant, preventing him doing any harm, and that the appellant "knifed him" while they were in the gutter.
The appellant's version was that when he fell in the stairway, he was mad and he opened his pocketknife and at once prepared the knife to protect himself, that Cooper did not go to the edge of the walk but stood in the doorway and they again grappled and fell in the gutter, with Cooper upon him, and that he did not consciously cut the deceased. He denied that he had a butcher knife in the difficulty. He went to the shed near the point where the butcher knife was found. Other eye-witnesses for the defendant saw no knife during the entire difficulty. Appellant did not know how Cooper came to be stabbed. He went to the shed and there remained until he saw a friend; while the State offered evidence that while standing at the shed, the marshal of the town was proceeding toward him immediately after the stabbing when the appellant said to the marshal: "Lester Cooper, don't any of you come down here. If you do I will cut every dam one of you." This evidence was permitted by the court over the objection of the appellant, but the language attributed to him by the marshal was denied by the appellant.
After appellant saw his friend, he left the Town of Heidelberg, where the homicide occurred, and spent the night at a negro church not far from his home. The next day, he went to Meridian, spent some hours there, and in the afternoon returned to Vossburg and to his home, and subsequently on that date, his mother surrendered him to the sheriff. He had some wounds and bruises on his head, and also scratches.
There was a contradiction offered by the State, to which we will refer specifically in the opinion; likewise, as to some instructions.
(1) It is contended that the court below erred in refusing to grant appellant a peremptory instruction. This case was appealed to this court once before, and report thereof is to be found in 174 So. 562. It was there held that it was a question for the jury on the issues of murder or manslaughter, but that the weight of the evidence made out a case of murder. On the facts here, we think the court did not err in refusing to grant a peremptory instruction.
(2) The State procured the following instruction: "The Court instructs the jury for the state that if you believe from all of the evidence in this case, beyond a reasonable doubt, that the defendant cut or stabbed the deceased, Paul Cooper, with a knife as shown by the testimony in the case, and that said stabbing or cutting was done without malice, and not in necessary self-defense, and without authority of law, and in the heat of passion, then you may find the defendant guilty of manslaughter. And in the event you do so find, the form of your verdict may be: `We, the jury find the defendant guilty of manslaughter.'"
It is complained that the words in the instruction "that the defendant cut or stabbed the deceased, Paul Cooper, with a knife as shown by the testimony in the case," constitutes error, for the reason that the court, by the use of the words, "as shown by the testimony in the case," decided that question of fact, and appellant asserts that there is no evidence in the record that Morris cut or stabbed the deceased, and he says further that this instruction is in direct conflict with an instruction granted the appellant, to the effect that appellant could be acquitted if the jury found that the appellant killed Cooper as a result of an accident or misfortune while in the heat of passion upon a sudden and sufficient provocation. The appellant's instruction was based on Paragraph (b) of Section 989 of the Code of 1930. Whether the appellant was entitled to the instruction under said section or not, we do not think the granting of the instruction was reversible error, for the reason that the only positive evidence in the case is to be found in the dying declaration, wherein the declarant said that appellant "knifed him." The defendant himself swears that while mad, he opened the knife for self-protection, and entered into the second phase of the difficulty with it open. Therefore, we think the appellant, on his own testimony, had the knife open and went into the difficulty armed with it, as he says, to protect himself. The circumstances detailed by the witnesses, in addition to the dying declaration, excludes any idea that the deceased received the fatal stab from any other source than a knife in the hands of the appellant. The court should not have used the expression "as shown by the testimony in the case," but we would not for that reason reverse the case in the state of the record we have set forth.
(3) It is strongly insisted that the evidence of Cooper, the town marshal, detailed in the facts, should not have been admitted, wherein the appellant, immediately after the cutting said to an officer of the law: "Lester Cooper, don't any of you come down here. If you do I will cut every dam one of you." We think this evidence was entirely competent as tending to show the state of mind, in some degree, of the appellant immediately after the homicide. Then too, the evidence was that he fled and went to another county, and the declaration made to an officer of the law was in aid of his design at that time to flee from arrest, and tended to carry out such design to prevent his being arrested, and to aid him in carrying out his purpose in making good his escape. See Brown v. State, 171 Miss. 157, 157 So. 363.
The court below permitted the State to contradict appellant's evidence to the effect that he was searched a second time at the show. He had sworn in his original evidence to that second search as a part of his defense. The fact of that search was a matter wholly immaterial and disconnected from the homicide, and had no bearing whatever thereon, being wholly immaterial and irrelevant. Viewing this trial as a completed trial, the error in admitting this contradiction was not prejudicial, and it is so improbable that it could have affected the jury in its verdict as to render a discussion unnecessary. Lott v. State, 168 Miss. 710, 152 So. 488.
On the whole case, we think the defendant had a fair and impartial trial, and we can find no sound reason for reversing this case.
Affirmed.