Opinion
No. 35761.
February 12, 1945.
1. HOMICIDE.
Where defendant, charged with murder, claimed that he killed deceased in self-defense, refusal to permit defendant to testify that unnamed persons informed him that deceased had made threats against defendant was not prejudicial error, where evidence if admitted would have been merely cumulative.
2. HOMICIDE.
In murder prosecution, defendant's testimony, offered for purpose of showing the desperate and dangerous character of deceased, that deceased had told defendant that deceased had killed three men, was properly excluded.
3. HOMICIDE.
In homicide prosecution, the desperate and dangerous character of person killed, when otherwise competent, cannot be proved by antecedent acts of violence committed by him, although the defendant has knowledge thereof.
APPEAL from the circuit court of Simpson County, HON.E.L. DENT, Judge.
Edwards Edwards, of Mendenhall, for appellant.
The court erred in excluding the testimony of Martha Mosley. This witness testified on direct examination that she knew the reputation of the deceased for peace or violence and that it was bad. This witness was cross-examined by the attorney for the state and she said she did not know the deceased's reputation except what he said, but she was further examined by attorney for defendant and brought out that the deceased was a dangerous man as to peace or violence. She was asked if she ever knew of the deceased hurting anybody and she answered that she knew what he said, and evidently by this she meant to say and did say indirectly, that the deceased had told her he had hurt somebody. We insist that the evidence was competent to go to the jury in the first instance, even though she might have contradicted her testimony as given on her direct examination, and also we insist that the evidence of this witness is that the deceased was of a dangerous temperament.
Cotton v. State, 31 Miss. 504; 3 Encyclopedia of Evidence 14.
The court erred in sustaining the objection of the state to the testimony of the defendant when testifying in his own behalf as to deceased having made threats against his life at the home of Stella Thompson a short time before the fatal difficulty, and excluding his testimony wherein he said that the parties there at the home of Stella Thompson communicated these threats to him when he returned to the home of the said Stella Thompson.
Cotton v. State, supra; Burks v. State, 101 Miss. 87, 57 So. 367.
The court erred in excluding the testimony of the defendant to the effect that the deceased told him that he had killed two men, one in the Delta and one in Smith county, and that he killed his son-in-law. This was competent to show the bad and dangerous character of the deceased, and justified the defendant in believing that he was likely to carry out his threats made against him; and also competent to show who was likely to have been the aggressor in the fatal encounter, and more especially where the facts were sharply controverted as was in this case.
Cotton v. State, supra; 3 Encyclopedia of Evidence 14.
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
In criminal cases, conviction will not be reversed where straight issue of fact is involved, or facts are conflicting, since, in such cases, question of guilt is exclusively within province of jury, and Supreme Court will not invade province and prerogative of jury.
Evans v. State, 159 Miss. 561, 132 So. 563.
In prosecution for murder defended on ground of self-defense, conflict in testimony as to whether deceased was armed and as to who was the aggressor was for jury.
Mills v. State, 196 Miss. 287, 17 So.2d 215.
The court committed no error in sustaining the objection on the part of the state to evidence of defendant witness, Martha Mosley, with reference to the reputation of deceased for peace or violence. This witness testified on direct examination that she knew the deceased's reputation in the community where he lived for peace and violence and that it was bad. Objection was made to this testimony and it was overruled by the court. Upon cross-examination this witness testified that she had never heard anyone say anything about his reputation. This witness further testified that the deceased himself said that he was not scared of anybody, and witness testified that this was what she was basing her testimony on for his general reputation in the community where he resided. The state renewed its objection to this testimony, which objection was sustained by the court. I submit that the court committed no error in sustaining the state's objection to this testimony for the reason that a person's general reputation in the community in which he resides is not based upon one's personal opinion or what they know personally, but it is based upon what the people or how the people hold him in regard in the community and, according to witness' own testimony, she was basing her testimony upon what the deceased told her. This evidence was clearly inadmissible as one's general reputation cannot be proven this way.
The court committed no error in sustaining the objection of the state to the testimony of the appellant when he was testifying to what the deceased said, when he was basing this on what someone else told him. This evidence was hearsay and clearly inadmissible and the court committed no error in sustaining objection thereto.
It is not permissible for the accused to prove that the deceased had been engaged in frequent fights, in which he used deadly weapons, and had been seen by the witnesses in several fights, in which he made deadly assaults upon his antagonists, and that the accused knew these facts. The character of the deceased cannot be shown by proof of such particular acts of misconduct, but only by evidence of his general reputation.
King v. State, 65 Miss. 576, 5 So. 97; McCoy v. State, 91 Miss. 257, 44 So. 814.
See also Sprinkle v. State, 137 Miss. 731, 102 So. 844; Anderson v. State, 181 Miss. 300, 179 So. 560; Smith v. State, 182 Miss. 890, 183 So. 699.
To make a homicide justifiable on the ground of self-defense, the danger must be either actual, present and urgent, or the slayer must have reasonable ground to apprehend a design, on the part of the deceased, to commit a felony, or to do him some great bodily harm, and that there is imminent danger of such design being accomplished; and hence the mere fear, apprehension, or belief, however sincerely entertained by one person that another designs to take his life, will not justify the former in taking the life of the latter.
Wesley v. State, 37 Miss. 327. Evans v. State, 44 Miss. 762; Harris v. State, 47 Miss. 318; Johnson v. State, 54 Miss. 430; Kendrick v. State, 55 Miss. 436; Scott v. State, 56 Miss. 287; Moriarty v. State, 62 Miss. 654.
The appellant was convicted of murder and sentenced to life imprisonment in the state penitentiary. He claims to have killed the deceased in self-defense, and introduced evidence to that effect. Only two of his assignments of error are of sufficient substance to require an answer thereto.
(1) The Court refused to permit him to testify that unnamed persons told him that the deceased came to a house wherein they were and from which the appellant had just left and said to them, "I am going to kill the son of a bitch," meaning the appellant. None of these persons testified as to the actual making of this threat. It will not be necessary for us to decide whether this evidence was competent for the reason that had it been received it would have been merely cumulative, for numerous similar threats against the appellant by the deceased were introduced in evidence.
(2) While testifying in his own behalf the appellant, in order to "show the desperate and dangerous character of the deceased," offered but was not permitted to say that the deceased had told him that he had killed three men. In a prosecution for homicide the desperate and dangerous character of the person killed, when otherwise competent, can not be proven by antecedent acts of violence committed by him, McCoy v. State, 91 Miss. 257, 44 So. 814, although the defendant has knowledge thereof, King v. State, 65 Miss. 576, 5 So. 97, 7 Am. St. Rep. 681.
Affirmed.