Opinion
No. 30443.
May 15, 1933.
CRIMINAL LAW.
Evidence which rested entirely on testimony of two witnesses that they could distinguish difference between report of pistol and shotgun, and that first report came from shotgun, held insufficient to support conviction for murder of plantation manager, who fired pistol, by tenant who claimed he fired shotgun in self-defense.
APPEAL from Circuit Court of Bolivar County.
Hugh F. Causey, and Shands, Elmore Causey, all of Cleveland, for appellant.
Wherever there are eyewitnesses to a killing, or where there are witnesses who could produce the facts as to the origin of the difficulty, or crime, and it is not done, this is a circumstance favorable to the defendant.
Patty v. State, 126 Miss. 94, 98, 88 So. 498.
The identification of a person by his voice is always viewed with suspicion.
14 Enc. of Evidence, page 154.
Identification of a fire arm by its voice should likewise be viewed with suspicion, and when identification is only by sound on the one hand, but on the other hand identification is by sight and by sound, the greater credence should be given to the latter identification.
The affirmative testimony being true, the falsity of the negative testimony is to be attributed to inattention, defective memory, or mistake.
Matthews v. Poythress, 4 Ga. 287, 295.
Man in his uncivilized state recognized the right of self-defense. When man became civilized and began to write codes, he still retained that right to defend self.
30 C.J., page 44, para. 207.
If the defendant's life was in real or apparent danger at the hands of the deceased, and he believed it then he had a right to shoot to kill.
McNeal v. State, 115 Miss. 678, 76 So. 625.
Mere hostile declarations of a deceased toward the accused are not of themselves, sufficient to justify the accused in killing the deceased but where such declarations are accompanied by "something to betoken immediate danger of life or great bodily harm, then the accused is justified in killing the deceased.
Bang v. State, 60 Miss. 571.
If all the testimony in the case whether introduced by the state or by the defendant, leaves the question of the defendant's guilt in reasonable doubt, a judgment of conviction cannot be upheld.
Houston v. State, 117 Miss. 311, 78 So. 182; Fletcher v. State, 129 Miss. 207, 91 So. 338.
Herbert Nunnery, Assistant Attorney-General, for the state.
A careful review of this testimony does not bear out that Mr. Fulcher fired the first shot.
Defendant may have had lively apprehension that life was in danger at time of shooting and believed grounds of his apprehension just and reasonable, and yet he acted at his own peril, and jury must determine the reasonableness of ground on which he acted at time of shooting.
Callas v. State, 118 So. 447.
It was neither necessary to fire at the deceased to stop him or to kill him.
From a second conviction of murder with death sentence, appeal is prosecuted here. The report of the first case is found in 140 So. 532.
We shall not undertake to detail all the facts and circumstances of this case. Appellant was a negro tenant on a delta plantation; the deceased was the white manager thereof. On a certain morning in August, appellant had a truck loaded with his goods, preparing to move from the plantation, when the wife of the deceased drove up and requested the owner of the truck not to move the appellant's household goods until her husband came. Her request was acceded to by the truck owner. She drove away, and Jake Washington went to the truck, took a bundle and his pump shotgun therefrom, and started on the public road toward a small town. He met his brother, and they walked down the road en route back where the truck was loaded; they were overtaken by Fulcher, driving his car. Jake Washington got out of the road and turned south in the cotton patch. Mr. Fulcher, with his pistol in his hand, sprang from the car in which he was riding, and went out of sight of the state's witnesses, following Jake, toward a house some twenty feet from the road where shooting began.
The only evidence of the state as to which shot first was that of two witnesses, one of whom adjudged that the first report he heard was that of a gun, and the other witness thought that the first report came from a gun. The deceased was shot in the hand, arm, shoulders, and chest, evidently by a shotgun. There was an eye witness offered by the defendant who testified that the deceased fired the first shot while in pursuit of Jake Washington; that Jake fell in the cotton field, and, after Fulcher fired upon him, he returned the fire. This evidence was strongly corroborated by another witness.
The only possible theory upon which the appellant could be guilty of murder would be to apply as conclusive this evidence as to the difference between the report of a shotgun and that of a pistol. All the other evidence is not inconsistent with appellant's plea of self-defense. Resting entirely upon the evidence of the two witnesses that they could distinguish the difference between a report of a pistol and a shotgun is too slight evidence upon which to permit a permanent conviction to stand. Even with this evidence the overwhelming weight of the testimony was against the verdict of the jury. Bang v. State, 60 Miss. 571; Jones v. State (Miss.), 60 So. 735; Riley v. State, 109 Miss. 286, 68 So. 250; McNeal v. State, 115 Miss. 678, 76 So. 625; Fletcher v. State, 129 Miss. 207, 91 So. 338.
In view of the very grave uncertainty in this testimony, we have decided that the case should be tried again.
Reversed and remanded.
On the whole evidence in the record, I think the guilt or innocence of the appellant was a question for the determination of the jury, which was submitted to it under instructions properly announcing the controlling legal principles, and that, consequently, the judgment of the court below should be affirmed.
Chief Justice Smith concurs in this view.