63 Miss. 313 (Miss. 1885), Johnson v. State

Citation:63 Miss. 313
Opinion Judge:ARNOLD, J.
Attorney:J. S. Morris, for the appellant. Claude Pintard, on the same side. T. M. Miller, Attorney General, for the State.
Court:Supreme Court of Mississippi

Page 313

63 Miss. 313 (Miss. 1885)




Supreme Court of Mississippi

October, 1885

Appeal from the Circuit Court of Adams County, Hon. Ralph North, Judge.

Henry Johnson was indicted for the murder of his step-child, a boy aged six years, and was convicted and sentenced to be hanged. The evidence showed that he gave the child a severe beating, and that five days afterward the child died. The beating was given on Sunday. On Monday next following the child went to the house of one Amy Bradley. She was allowed to testify that the child then said to her "that his head was paining him from the beating his papa gave him on the day before." The defendant objected to the admission of this testimony on the ground that he was not present when the statement was made by the child. The mother of the child and the wife of defendant was not called to testify. The ninth instruction for the State was as follows: "The court instructs the jury that under the laws of this State the State cannot in a criminal trial call upon the wife of a man to testify, but that the defendant can call her to testify in his favor."

The defendant appealed.


J. S. Morris, for the appellant.

1. Fatal was the error of the court below in permitting counsel for the State to get their witness, Amy Bradley, to tell the jury what the little boy said at her house on Monday evening about "the beating papa gave him on yesterday." This alleged declaration of the little boy on the next day, when the accused is not shown to have been present, is admissible in evidence upon no principal whatever. It was not res gestae. There is nothing in it of the character of a "dying declaration." It is simple, unadulterated, and unmitigated hearsay, and nothing else.

2. Concerning the State's instruction numbered "9" there is no accident or mistake. In this ninth instruction the jury are informed by the court, in effect, that it is a pregnant and mysterious circumstance against the accused that he could have, but did not, and the State would but could not, make a witness of defendant's wife! The intimation is very clear by the terms of this instruction that, in the judgment of his Honor on the bench, the testimony of the wife would be a good thing for the State, who could not get it, and a bad thing for the defendant, who would not have it. It suggests a suppression of testimony by the...

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