Opinion
No. 42161.
May 21, 1962.
1. Criminal law — evidence of other crimes admissible where part of res gestae.
Testimony that bullet that killed deceased also struck and injured one-year-old baby deceased was holding in her arms when shot, was admissible as part of the res gestae.
2. Criminal law — same.
Evidence that defendant was engaged in selling liquor, that he shot baby deceased was holding in her arm when she was fatally shot, and that he was apparently living in adultery with deceased, was admissible as part of the res gestae where facts concerning the shooting could not have been properly related without bringing out such matters.
3. Witnesses — surprise — refusal of right of cross-examination not error where defendant did not follow up request.
Court would be considered to have erred in refusing to allow defendant to cross-examine a witness, where defendant called the witness as his own witness after the witness had testified for the State, and then stated to the Court that he was surprised and would like to cross-examine the witness, but did not show how or why he was surprised, and did not make any showing of what he intended to accomplish by cross-examination.
4. Homicide — evidence — murder conviction sustained.
Evidence was sufficient to sustain murder conviction.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Amite County; JAMES A. TORREY, J.
Lowrey Stratton, Liberty, for appellant.
I. Evidence of the shooting of Lex Williams, a nursling child, should not have been admitted as it had no relation to the case at bar, and it prejudiced and inflamed the minds of the jurors. Augustine v. State, 201 Miss. 277, 28 So.2d 243; Crafton v. State, 200 Miss. 10, 26 So.2d 502; King v. State, 66 Miss. 502, 6 So. 188; Walker v. State, 201 Miss. 780, 30 So.2d 239.
II. The Court should have granted instruction number 7 of the defendant which requested a not guilty verdict if the jury believed from the evidence that Arie Mae Williams was killed by accident or misfortune, in the heat of passion and on sudden and sufficient provocation.
III. The Court should have granted the peremptory instruction as the State did not prove its case.
IV. The verdict was contrary to the weight of the evidence as the jury was confronted with inuendo, suspicion, evidence of other crimes, inflammatory matters, relations between the white and colored race and other conditions that caused repugnance in the minds of the jury to such an extent that the case could not be tried and weighed solely within the limits of evidence supporting the crime stated in the indictment. Hartfield v. State, 186 Miss. 75, 189 So. 530; People v. Gougas, 410 Ill. 235, 102 N.E. 152, 28 A.L.R. 852; People v. Lewis, 261 Ill. 11, 103 N.E. 589; People v. Wilson, 400 Ill. 461, 81 N.E.2d 211; Sec. 1532, Code 1942.
V. No greater offense than manslaughter was proven by the State if a crime at all was proven. Gaddis v. State, 207 Miss. 508, 42 So.2d 724.
VI. Defense counsel should have been allowed to plead surprise and given latitude in questioning a hostile witness. Dink v. State, 84 Miss. 452, 36 So. 609; Rutland v. State, 170 Miss. 650, 155 So. 681; Hutton, Summary Statement of the Law of Evidence in Mississippi 2d, Secs. 15-20 p. 402.
G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. The evidence as to the shooting of Lex Williams, the child being held by the deceased, was admissible. Mattox v. State, 243 Miss. 402, 137 So.2d 920; Smith v. State, (Miss.), 137 So.2d 172.
II. The Court did not err in refusing the instruction requested by appellant. Matthews v. State, 240 Miss. 189, 126 So.2d 245; Park v. State, 240 Miss. 774, 128 So.2d 870; Scott v. State, 185 Miss. 454, 188 So. 546.
III. The verdict of the jury was not contrary to the weight of the evidence and was not based on inuendo and other incompetent and inflammatory matters. Shortridge v. State, 243 Miss. 710, 140 So.2d 89.
IV. The proof shows murder, not manslaughter.
V. Appellant complains that he was not allowed enough latitude in questioning the witness Felder who had been previously on the stand as a State witness but later called as a defense witness. Appellant chose to call Felder as his own witness and is bound thereby. If the trial court's action was error this writer fails to see any prejudice. Furthermore, it would have been within the sound discretion of the trial court to allow appellant to call the witness Felder for further cross-examination, rather than putting him on as his own witness. Since this alternative was not availed of, appellant cannot then complain when he makes Felder his witness.
Appellant was indicted, tried and convicted of the murder of Airie Mae Williams and sentenced to life imprisonment.
Appellant and several other men were drinking and shooting dice in the home of deceased. An automobile drove up in front of the house and, at appellant's direction, deceased gave appellant his pistol. Appellant went to the door with the pistol in his hand to see who was in the automobile. The automobile drove away and appellant handed the gun to Jim Felder. The deceased got the gun from Felder and gave it to J.T. Travis, and told Travis to hide it, but he laid the gun on the bed near where appellant and others were shooting dice. The deceased picked up the gun from the bed and started to a back room and was followed by appellant who demanded deceased to give him his gun, cursing her at the same time. Appellant took hold of the stock of the gun and the deceased was holding onto the barrel with her left hand and holding her one-year old baby in her right arm. Appellant slapped deceased with his right hand and told her he was going to kill her because she was helping those who were gambling with him. Deceased cried out several times, "Don't do that," and about that time the gun fired, striking deceased's child and entering deceased's stomach. She collapsed and died within a short time.
(Hn 1) Appellant first assigns as error the admission of testimony that the bullet that killed deceased also struck and injured the one-year old baby deceased was holding in her arms when she was shot. In the first place, most of this evidence concerning the shooting of the child went into evidence without objection, but it was not error to admit this evidence because it was part of the res gestae. The same bullet that killed deceased also struck the child she was holding in her arms. Walker v. State, 201 Miss. 780, 30 So.2d 239.
Appellant assigns as error the refusal of the court to grant two instructions, but after a careful examination we find there was no error committed in this regard.
(Hn 2) Appellant also contends that evidence of other crimes and inflammatory matters were admitted in evidence to the prejudice of appellant, and for that reason he did not receive a fair trial. The record does not reveal any error in admitting evidence that the defendant was engaged in selling liquor, that he shot the baby, or that he was apparently living in adultery with deceased. All these matters were admitted as part of the res gestae and the facts could not have been properly related without bringing out these matters.
(Hn 3) Appellant assigns as error the fact that the court did not allow him to cross examine witness E.F. Felder. This witness had testified for the State and appellant was entitled to cross-examine him, but instead, called him as his own witness. He then stated to the court that he was surprised and would like to cross-examine the witness. The court refused and appellant did not follow up this request. He did not show how or why he was surprised, nor did he show or attempt to show what he intended to accomplish by a cross-examination. Under these circumstances, appellant is in no position to complain.
(Hn 4) Finally, appellant contends that the evidence did not justify a verdict of murder, but only manslaughter. We hold that the jury could properly have found appellant guilty of either murder or manslaughter under the evidence, but that there was ample evidence that the killing was premeditated.
A careful review of the entire record reveals that appellant received a fair and impartial trial and we find no reversible error.
Affirmed.
Lee, P.J., and Kyle, McElroy and Rodgers, JJ., concur.