Cheatham v. State

• Decision Date: 03 February 1890
• Court: Mississippi Supreme Court
• Parties: M. J. CHEATHAM v. THE STATE

7 So. 204

67 Miss. 335

M. J. CHEATHAM v. THE STATE

Supreme Court of Mississippi

February 3, 1890

FROM the circuit court of Grenada county, HON. C. H. CAMPBELL Judge.

The facts sufficiently appear in the opinion.

Affirmed.

Wm. C McLean, for appellant.

1. It was error to refuse the application for a change of venue. The affidavit of the defendant, supported by the oath of three credible witnesses, made a prima facie case, and to support this several witnesses were introduced and testified in the most unequivocal manner that a fair and impartial trial could not be had. Eleven witnesses thus testified while ten swore that a fair trial could be had, in their opinion. The defendant was entitled at every stage of the case to the benefit of all reasonable doubts, and, if we look alone to the evidence for the state, the record shows that the application should have been granted.

2. The conviction should be set aside because of the action of prosecuting counsel in commenting before the jury upon the fact that Lamons, who had been jointly indicted with appellant, sought safety in flight. There was no evidence of such flight, and if there had been it would have been inadmissible against this defendant. No act, declaration, or confession of an accomplice after the commission of the crime is admissible against the co-conspirator. Wharton on By., § 699; Browning v. The State, 30 Miss. 671.

It is the experience of every lawyer that a fact once before the jury, no matter how it gets there, whether by legal evidence or statement of counsel, is certain to take effect. No ruling of the court can remove the impression. It is high time that this court was putting a stop to the unjust and evil practice of prosecuting counsel making improper statements to the jury, and this can only be done by reversing all cases where counsel have been guilty of such practice. On this subject, see Martin v. The State, 63 Miss. 535; Lamar v. The State, 65 Ib. 93; Lamar v. The State, 64 Ib. 428; Hubbard v. The State, MSS.; 1 Thompson on Trials, §§ 966-972; McDonald v. The People, 9 Am. St. Rep. 559, note. The fact that counsel said to the jury that he would withdraw his remarks did not cure the error. Baker v. Madison, 62 Wis. 137; Brown v. Swineford, 44 Ib. 282; Wolfe v. Minnis, 74 Ala. 386.

3. It was error to refuse the evidence offered to prove that inducements were offered and extended to Lee Ervin and Cornelius Robinson in order to get them to testify in the case, and that members of the coroner's jury said to them, "we have the dead thing on you, it will be better for you to tell the truth about the matter, and if you tell all you know about it you shall not be hurt, but we will protect you and furnish you money to leave the country when the trial is over." The court erred in assuming that a foundation must first be laid, and in regarding these witnesses as any other witnesses. A foundation need not be laid, except when the proffered evidence is collateral to the issue. Here the proffered evidence was an independent fact to be proved like any other fact. See Rapalje, Law of Witnesses, § 202, and cases cited; Wharton Cr. Ev., § 566; Day v. Stickney, 14 Allen, 255; Ford v. Ford, 104 Mass. 206; Rex v. Lord Stafford, 7 How. St. Trials, 400; 1 Greenl. Ev., § 423.

4. While this court has in one or two cases sustained convictions upon the evidence of an accomplice, and has ruled that it is not error to refuse to "instruct" the jury not to convict on the uncorroborated evidence of an accomplice, yet the question in this case is different. Upon an examination of the authorities it will be seen that the court erred in refusing the charge as modified. Wharton Cr. Ev., § 441; Greenl. Ev., § 380; Taylor, Ev., 796; Ray v. The State, 48 Am. Dec. 379, 386, and note; State v. Chyo Chiagk, 4 S.W. 704. While some courts hold that it is the duty of the trial judges to so advise the jury, yet they are not compelled to do so, and for their refusal no error can be assigned. We submit that such a doctrine is not a practical one and should not be adopted in any state. The rule should be uniform, and the only way to secure this is to require that such instructions be granted. See Jones v. The State, 65 Miss. 183; White v. The State, 52 Ib. 216.

5. It was plainly erroneous to instruct the jury for the state that if they "believe that defendant, before the killing, threatened to either kill him or have it done, they may consider such threats along with all the other evidence in the case." This was a charge on the weight of evidence and in direct contravention of legislative direction. Code 1880, § 1740. The test is whether the facts are presumptions of law or of fact. The presumptions from "motives to kill" and from "threats" are presumptions of fact, not of law. Wharton Cr. Ev., § 756; Thompson on Trials, § 2290.

Besides, it was clearly improper to call especial attention to particular facts. The court should not emphasize any part of the state's evidence. French v. Sale, 63 Miss. 387; Ladner v. Ladner, 64 Ib. 368; May & Vaught v. Taylor, 62 Ib. 500; Sackett, Instructions to Juries, §§ 11, 12; Proffat, Jury Trials, §§ 319, 320, 323, 336.

I submit a new trial should be awarded, and a change of venue granted.

Argued orally by Wm. C. McLean, for appellee, and T. M. Miller, attorney-general, for the state.

OPINION

COOPER, J.

Appellant has been convicted of the murder of one Tillman and sentenced to capital punishment. We dispose of the errors assigned in their order.

The first assignment of error is upon the action of the court in refusing a change of venue, and upon this it is sufficient to say that no abuse of judicial discretion appears to have been committed. Upon the motion for the change of venue a number of witnesses were examined, the majority testifying that in their opinion a fair and impartial trial could not be secured in the county. But a number of them declared that no reason existed known to them why an impartial jury might not be secured. Looking to the whole evidence upon this question, it seems to us that many of the witnesses believed a jury could not be secured from that section of the county in which the homicide occurred, and not knowing the public sentiment in other portions of the county, assumed it to be hostile to the defendant, as it was in the section in which they were acquainted. But the question of error or no error in this respect is not determinable alone from the standpoint occupied by the court in passing upon the question before the trial was commenced. On the motion for a new trial the court had before it the whole case as developed, including the examination of the jurors on their voir dire, the selection of the panel, the temper and conduct of the jurors and witnesses, and the evidence of the existence or non-existence of that pervading public sentiment known as undue prejudice in the public mind, which, existing, entitles one accused of crime to a trial in another county. The record discloses that a venire of fifty names was drawn at the instance of the prisoner, and by the bill of exceptions it is certified that, "a jury, twelve lawful men, to wit, Charles Trimble and eleven others, taken from the special venire, the defendant not having exhausted his peremptory challenges," was selected.

The witnesses summoned in defendant's behalf seem to have promptly responded to the processes of the court, and, so far as we can discover, testified fully, freely and without any sort of hesitancy or reserve, in his favor. One witness for the state, having testified to a conversation he claimed to have overheard between the defendant and one of his co-defendants, in effect confessing his guilt, was promptly contradicted by the testimony of the only other man who he stated was present and within hearing. A great number of witnesses, apparently taken from the body of the community in which the homicide occurred, freely attacked the general credibility of the most important witnesses for the state. However honestly the witnesses on the preliminary motion for change of venue may have felt that the accused could not secure an impartial trial in the county of the offense, the trial as surveyed from its conclusion instead of its commencement, impresses us, as it did the court below, as being entirely free from any bias against appellant.

The next assignment of error is upon certain remarks made by counsel aiding the district-attorney, in the course of his argument to the jury. One of the witnesses for the state stated in reply to a question from the defendant's counsel, that some time after the arrest of appellant he [witness] told him [appellant] that Lamons [a defendant jointly indicted with appellant] was gone, and was not at home. It appears that when appellant was informed that suspicion rested upon Lamons, he replied that Lamons could not have committed the murder, for he had slept with appellant the night of the murder. After this, and when appellant was arrested, he stated that he had spent the night of the murder with his mistress [a Miss Robinson]. In his argument the counsel for the state in speaking of these contradictory declarations by defendant as to where he had Spent the night, said: "The reason why defendant changed his tactics was because he had intellect enough to know that the flight of Lamons was a circumstance of guilt and evidence of it, and that neither Cheatham nor Lamons could explain it." Instantly upon this remark being made to the jury counsel for appellant objected to it because there was no evidence of the flight of Lamons and that such evidence if offered would be incompetent as against the appellant. Whereupon the court instructed the jury that it should disregard so much of the argument of counsel as had...