Opinion
No. 33271.
October 17, 1938.
1. HOMICIDE.
In homicide prosecution, whether defendant had reasonable ground to apprehend danger to his life or limb or great bodily harm at the hands of decedent at time of killing was for jury under evidence that decedent chased defendant to his aunt's house and there threatened to choke him to death, pursued him to the wall, threw him on the bed, and had him down on the bed when defendant shot decedent with a pistol, and that decedent was very strong and weighed 45 pounds more than defendant.
2. HOMICIDE.
In homicide prosecution defended on ground of self-defense, defendant was not confined in proof of decedent's bad reputation for peace and violence to community in which homicide occurred or to time immediately preceding homicide, but evidence of his bad reputation in community from which decedent had removed a few weeks before homicide was competent to show whether defendant had reasonable ground to apprehend that he would suffer death or great bodily harm from decedent at the moment he fired the gun, where counsel stated and defendant swore that defendant knew decedent's reputation at time of homicide.
3. HOMICIDE.
In homicide prosecution defended on ground of self-defense, the reputation of the deceased person concerning traits of character such as peace or violence, good or bad, or such traits as are not easily changed, and remoteness of reputation from time of killing, are for jury.
APPEAL from the circuit court of Simpson county; HON. EDGAR M. LANE, Judge.
J.P. A.K. Edwards, of Mendenhall, for appellant.
The court erred in excluding from the jury the evidence offered by Houston Williams, Monroe Taylor and Justice of the Peace Slay to show the bad reputation of the deceased generally for violence. The court restricted this evidence to the short time the deceased came back into the county, a period of about two months, and the lower court in sustaining the objection of the State to the evidence of these witnesses to show the general reputation of the deceased for peace or violence over a period of several years committed great prejudicial error, since the jury under the law must place the appellant in his true condition and judge from the facts whether or not the appellant situated as he was was really in danger of suffering some great bodily harm at the hands of the deceased, and in considering this part of the evidence the jury did not have the benefit of the deceased's reputation for peace or violence and could not know as the appellant knew that his life was in imminent and impending danger at the hands of the deceased.
King v. State, 5 So. 97; Moriarty v. State, 62 Miss. 654; Smith v. State, 75 Miss. 555, 23 So. 260; Sprinkle v. State, 102 So. 844.
The lower court erred in admitting the evidence of the witness Belding as to the range of the bullet. This was prejudicial error and was condemned by this court in Temple v. State, 62 So. 429, and Foster v. State, 12 So. 822.
The court erred in refusing to discharge the jury and enter a mistrial on motion of the defendant at the close of the evidence for the state. The district attorney so framed his question to the defendant as to state a fact that the defendant was then under indictment pending at that term of the court on a charge for shooting another negro by the name of Bill Walker. The good character and reputation of the defendant was not in issue. His character was illegally put in issue which was highly prejudicial and influenced the minds of the jury against him.
The court erred in refusing the defendant the peremptory instruction requested as shown by the record for the reason the evidence is uncontradicted that the defendant shot the deceased in self defense.
Houston v. State, 78 So. 182.
The verdict of the jury and judgment of the court are contrary to the law and evidence in the case.
Anderson v. State, 179 So. 560; Cotton v. State, 31 Miss. 504; Scott v. State, 56 Miss. 287; Spivy v. State, 58 Miss. 858.
In the case of Patty v. State, 88 So. 498, we have a case similar to the case at bar. In this case the court held that the prima facie evidence of guilt arising from the use of a deadly weapon yields to the evidence and the defendant is presumed to be innocent of the crime charged.
Hawthorne v. State, 58 Miss. 778; Bedwell v. State, 94 So. 220.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
The evidence showed that the deceased, Joe Drummond, had left that community some six years before the killing and had gone up into the Mississippi delta. He had been back from the delta only a few weeks when he was killed. The defendant offered to prove his reputation for violence prior to his departure to the delta. The appellant complains here that the trial court improperly restricted his proof in this respect to the few weeks immediately preceding the homicide. Testimony must relate to the time of the homicide and such period of time prior thereto as that it may have some bearing in determining possibly the question of aggression, as well as the act of the defendant in killing the deceased. We submit that six years prior to the killing is too remote in point of time to be of value as evidence in this case in the respects just mentioned. On the other hand, this character of evidence is not competent and admissible, unless and until it is shown, prior to its being offered, that such reputation was actually known to the defendant himself.
Sprinkle v. State, 137 Miss. 731, 102 So. 844; Smith v. State, 75 Miss. 542, 23 So. 260; Spivy v. State, 58 Miss. 858; Anderson v. State, 179 So. 560; Carter v. State, 167 Miss. 331, 145 So. 739; Tucker v. State, 103 Miss. 117, 60 So. 65; Lott v. State, 168 Miss. 710, 152 So. 488.
When the embalmer was testifying as to the location of the wound on the body of deceased, he was asked if he had made an examination sufficient to enable him to state whether the bullet entered the body at an angle, or whether it went straight in. It will also be recalled that the embalmer only probed into the wound a couple of inches and stuffed the wound with cotton so as to stop the blood. He stated, however, that the bullet had gone straight in. We may as well concede at the outset that the rule is against this character of testimony under the circumstances shown.
Temple v. State, 105 Miss. 449, 62 So. 429; Pope v. State, 105 Miss. 133, 62 So. 10.
If the testimony has no material bearing upon the issues in the case, the admission of such testimony, even though improperly admitted, will not result in a reversal of a conviction for such admission.
LeBarron v. State, 107 Miss. 663, 65 So. 648.
It appears that such testimony, not being in conflict with the defendant's version of the killing, the admission of this non-expert testimony, that the bullet went straight in, ought to be treated by this court just as was the testimony dealt with in the LeBarron case.
The first question asked by the District Attorney of the defendant on cross-examination was whether or not he was then under indictment for the shooting of another negro by the name of Bill Walker. When the defendant objected to this question on cross-examination, the court sustained it and he thus, at that time, got the benefit of everything he had requested.
Brown v. State, 173 Miss. 542, 158 So. 339.
We, of course, concede that the question propounded to the witness was improper and the court properly sustained the objection made to it. But, we submit that the motion for a mistrial was not timely. We think that it was the duty of the defendant to then and there, upon the sustaining of the objection, to have moved for a mistrial if he were of the opinion then that the ruling of the court was insufficient to remove the prejudicial effect of this question.
Williams v. State, 171 Miss. 324, 157 So. 717; Allen v. State, 148 Miss. 229, 114 So. 352; Holmes v. State, 151 Miss. 702, 118 So. 431.
There was much evidence concerning the age, weight and size of the deceased as compared to the same characteristics of the defendant. We submit that it was a matter for the jury to determine whether this was a necessary or an unnecessary killing. It cannot be said, as a matter of law, that the defendant in this case, under the circumstances shown by the record, was entitled to justifiably use a deadly weapon in repelling the assault made on him by the deceased. That was a question of fact and the jury is the trier of facts.
Appellant was convicted of manslaughter in the Circuit Court of Simpson County, and sentenced to serve a term of three years in the state penitentiary.
The evidence tended to show that Joe Drummond, the deceased, weighed about one hundred and seventy-five pounds, the defendant, about one hundred and thirty pounds, and the evidence tended to show that the deceased was a very strong man, that he could take the defendant by the ears and throw him over on the ground. At about three o'clock in the morning, appellant claims that he had fled from deceased at Belpine, some miles, to the home of his aunt and had been there about forty minutes when the deceased came into the house and said to appellant "You s____ of a b____, I'm still on your trail." The man of the house stopped any altercation at that time, and the people there went to sleep, and so far as the State is concerned, no evidence was offered by any eye-witnesses as to the details of the homicide. The appellant's evidence was to the effect that the deceased had, in effect, threatened to choke him (appellant) to death, and had pursued him to the wall, threw him on the bed and had him down on the bed when he shot the deceased with a pistol. The appellant's version of the details of the difficulty on the bed at the time of the shooting was supported by the owner of the home. The State contented itself with evidence that the deceased was killed by the appellant by being shot with a pistol, a deadly weapon, and some contradictory statements of that of the appellant to the effect that he had shot the deceased in resistance of an attack with a knife. On the trial, however, the main defense was that because of the great superiority of strength and age of the deceased, that appellant shot in self-defense
We think the evidence was sufficient to go to the jury, and will not disturb the verdict on the ground that it was against the overwhelming weight of the evidence. Second, it is insisted that the trial court improperly restricted the evidence as to the bad reputation of deceased and limited the proof thereof to a period of about the three to eight weeks in and around Braxton, Mississippi.
It was a material question in the light of defense as to the general reputation in the community for peace and violence of the deceased. On this point, the appellant offered several witnesses who testified, out of the presence of the jury, that they had known deceased all his life, that they knew his general reputation for peace and violence and that it was bad, that he had lived in a community in Simpson County sixteen or eighteen miles from Braxton until a period of three to six years before this homicide, that he removed from that community and had lived in the Delta and in Jackson, and just a few weeks before this homicide had returned to Braxton, near which place the homicide occurred. The court, on the objection of the State, limited the proof to his reputation for the few weeks the deceased had lived near Braxton. After the court had excluded the evidence of a witness on the above ground, the appellant's counsel stated to the court that he would be able to prove that the defendant had knowledge of the general reputation of the deceased for peace and violence at the time of the homicide, and before this evidence was offered, the defendant had shown the details of the homicide and position of the bodies by the only other eyewitness.
In excluding the evidence of the appellant on the point of general reputation, we think the court below erred. In this case, it was a question for the jury whether or not the appellant had reasonable ground to apprehend danger to his life or limb at the time of the killing, or great bodily harm at the hands of the deceased. Evidence of the reputation of the deceased for peace or violence was competent and shed light upon the actions of the appellant and deceased at the time of the homicide, if that reputation was known to the accused. See Wesley v. State, 37 Miss. 347; Moriarty v. State, 62 Miss. 654; King v. State, 65 Miss. 576, 5 So. 97, and Sprinkle v. State, 137 Miss. 731, 734, 102 So. 844. It will be observed that the deceased had only resided in the community where the homicide occurred a few weeks, and that the appellant offered evidence of his bad reputation in the community from which he had removed three years before and offered to connect it with the same reputation acquired after his removal to the Delta. This evidence was offered at a time when, according to the eye-witness, the accused and deceased were in a difficulty, appellant was held upon the bed by the deceased; and counsel stated that appellant knew the general reputation of the deceased for peace and violence as bad at the time of the homicide. To the same effect, the appellant swore, as a witness for himself.
We think, under the weight of authority, this evidence was competent as tending to shed light upon the action of the appellant at the time of the homicide, and as to who was the aggressor, and as to whether or not, as a reasonable man, he had reason to apprehend that he would suffer death or great bodily harm from the deceased at the moment he fired the gun. The appellant, in this state of the case, was not confined in such proof to the community in which the homicide occurred, or to the time immediately preceding the homicide. See Eng. Ency. of Law, Vol. 3, Page 30, and Note 91.
This court, in a civil case, Norwood Co. v. Andrews, 71 Miss. 641, 16 So. 262, held that it was competent to show the bad character of a witness for truth in a neighborhood where he had lived many years and from which he had moved two years before. In that case the court, after announcing the ruling, said: "If there was nothing in the books in support of this view, we would not hesitate to announce one so obviously just. To hold otherwise would preclude the possibility of impeaching the character of one who had changed his residence, in many cases. The rule must work both ways, and, under the rule we condemn, one who had maintained an unblemished reputation through a long life, in case of removal and occasion in his new home to prove his good character where he had spent his life, would be denied the right to call witnesses who had known him at his former residence, because not acquainted with his reputation at his new place of abode. And one who had not lived long enough at a place to become known there would not be able to prove reputation at all. The true inquiry is as to one's reputation, — the estimation of those who know him. Generally they are his neighbors, but circumstances alter cases, and the law conforms reasonably to altered circumstances, in order to accomplish its objects."
The reputation of a person as to traits of character such as peace or violence and truth and veracity, either good or bad, or such as are not easily changed, and the remoteness in time is ordinarily in such cases for the jury.
This is a very close case on the facts, and the State's case is not a strong one.
Other errors are assigned which do not call for comment from us.
Reversed and remanded.