Allen v. State

• Decision Date: 25 February 1935
• Docket Number: 31327
• Citation: 172 Miss. 472,159 So. 533
• Court: Mississippi Supreme Court
• Parties: ALLEN et al. v. STATE

159 So. 533

172 Miss. 472

ALLEN et al. v. STATE

No. 31327

Supreme Court of Mississippi

February 25, 1935

Division B

Suggestion Of Error Overruled, March 25, 1935.

APPEAL from the circuit court of Kemper county HON. J. I STURDIVANT, Judge.

Oscar Allen and Willie Allen were convicted of manslaughter, and they appeal. Reversed and remanded.

Reversed and remanded.

M. V. B. Miller, of Meridian, and Joe E. Davis and Jno. A. Clark, both of De Kalb, for appellants.

The court erred in not sustaining the motion of appellant Oscar Allen at the close of the state's testimony to exclude all the testimony and peremptorily instruct the jury to return a verdict of not guilty as far as Oscar Allen was concerned.

The essentials of a conspiracy are first a combining of two or more minds; second, the purpose of the combining.

Commonwealth v. Brinstead, 55 S.W. 720, 725, 108 Ky. 59; Pettibone v. U.S. 148 U.S. 197, 37 L.Ed. 419; Conner v. The People, 18 Col. 373, 33 P. 159, 36 Am. St. Rep. 295; Brown v. Evans, 112 N.W. 1079, 149 Mich. 429.

A conspiracy cannot be sustained by evidence which would merely establish separate causes of action against several defendants.

Russell & Sons v. Stampers' & Gold Leaf Local Union, 107 N.Y.S. 303; Levine v. Klien, 120 N.Y.S. 196; Miller v. Mayer, 68 N.W. 869, 94 Wis. 125; U. S. v. Kissell, 31 S.Ct. 124, 126, 218 U.S. 601, 54 L.Ed. 1168; Sullivan v. State, 37 So. 1008, 85 Miss. 149; Brabston v. State, 68 Miss. 219.

The record shows affirmatively that there was no motive for appellants Oscar Allen and Willie Allen to want to kill Mr. Gravette, or see anyone else kill him, but there was a motive for the appellants to want to see Mr. Gravette live.

Hairston v. State, 54 Miss. 689; McGehee v. State, 104 So. 150, 138 Miss. 822; Price v. State, 103 So. 133, 138 Miss. 382; Brown v. State, 115 So. 533, 149 Miss. 239; Harper v. State, 83 Miss. 402, 35 So. 572; Sullivan v. State, 85 Miss. 149, 37 So. 1006; Rich v. State, 86 So. 770, 124 Miss. 272.

The state absolutely failed to show a conspiracy between appellants to injure Mr. Gravette.

Harper v. State, 83 Miss. 415; Powers v. State, 86 So. 863; 124 Miss. 425.

In the record it is shown that the court permitted a witness to testify that the appellant Mr. Oscar Allen, while riding along in the Gravette car, was trying to get Mr. Gravette to go with him to whip a third party, a Mr. Peden, who had no connection with this case. This kind of testimony was most prejudicial.

Walker v. State, 103 So. 479, 140 Miss. 238; Raines v. State, 33 So. 19, 81 Miss. 489; Harper v. State, 83 Miss. 415.

The court committed reversible error in granting instruction No. 1 for the state defining conspiracy, because there is no evidence of conspiracy.

Brown v. State, 115 So. 433, 149 Miss. 239; Rich v. State, 86 So. 700, 124 Miss. 272; Harper v. State, 83 Miss. 414.

The court committed reversible error in overruling appellants' motion for a new trial.

Byrd v. State, 123 So. 869; Brown v. State, 121 So. 297.

Our court has many times said that even judgments in civil cases cannot be based on conjecture.

Tyson v. Utterbach, 122 So. 496, 154 Miss. 381, 63 A.L.R. 1188; Hercules Powder Co. v. Calcoat, 138 So. 583, 161 Miss. 860; Y. & M. V. v. Green, 147 So. 333; Burnside v. Gulf Refining Co., 148 So. 219, 166 Miss. 460; City of Hazlehurst v. Byrd, 57 So. 360.

In the case of Stansberry v. State, 50 So. 783, the court pointed out that the evidence there was consistent with the defendant's innocence, and therefore the court reversed the case.

Gipson v. State, 107 So. 327, 21 Ala.App. 277.

The state's testimony clearly shows up until after the wrestling match between Gravette and Willie Allen that Willie Allen's conduct clearly indicated a feeling of friendship and belies any indication of a murderous intent on his part.

Herman v. State, 75 Miss. 340, 22 So. 873; Harper v. State, 83 Miss. 402, 35 So. 572.

The jury's verdict was the result of coercion.

Wade v. State, 124 So. 805, 155 Miss. 648.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

A conspiracy, like any other controverted fact, may be shown by the acts of the parties, or by circumstances, as well as by their agreement.

Eaton v. State, 163 Miss. 130, 104 So. 729; Street v. State, 43 Miss. 2; Osborne v. State, 99 Miss. 410, 55 So. 52; Pickett v. State, 139 Miss. 529, 104 So. 529; Byrd v. State, 165 Miss. 30, 143 So. 852; Lyon v. State, 129 Miss. 463, 92 So. 581; Spight v. State, 120 Miss. 752, 83 So. 84; Sparks v. State, 113 Miss. 266, 74 So. 123.

Where the evidence shows that another was present and on hand to take part in whatever crime was to be committed, such other person is equally as guilty as the one who actually perpetrated the crime.

Anderson v. State, 156 So. 645; Cody v. State, 167 Miss. 170, 148 So. 627; Clarke v. State, 113 Miss. 201, 74 So. 127; McCoy v. State, 91 Miss. 257, 44 So. 814; Harper v. State, 83 Miss. 402, 35 So. 572.

It might be conceded that some of the questions are possibly leading in their nature. But this, in and of itself, should not work a reversal of this conviction, unless it reasonably appears that thereby appellants had been deprived of some substantial right, or unless it could be shown that such leading questions were calculated to unduly prejudice the defendants.

Comings v. State, 163 Miss. 442, 142 So. 19; Callicoat v. State, 131 Miss. 188, 95 So. 318; Goins v. State, 153 Miss. 662, 124 So. 785; Lott v. State, 152 So. 488.

The events of the day, leading up to the homicide, so far as conversations, arguments, misunderstandings, etc., between Oscar Allen and Gravette, are, we believe, admissible.

Dixon v. State, 154 So. 290; McCormick v. State, 159 Miss. 610, 132 So. 757; Carter v. State, 162 Miss. 263, 139 So. 618.

All of the instructions are to be considered as a whole and one read into the other.

Williams v. State, 160 Miss. 485, 135 So. 210.

Appellants point out certain conflicts in the testimony of the various state witnesses. This was a matter for the jury, since they are the judges of the credibility of witnesses and the weight to be given their testimony. It is the duty of the jury to consider conflicting statements of witnesses in connection with other evidence in arriving at the truth of the matter.

Hartley v. State, 161 Miss. 667, 137 So. 518.

Argued orally by M. V. B. Miller, for appellants.

OPINION

Ethridge, P. J.

Oscar Allen and Willie Allen, father and son, were tried jointly in the circuit court of Kemper county for the killing of Elmer Gravette. The killing was actually done by Willie Allen who claimed self-defense, but the state's theory was that Oscar Allen, the father, and Willie Allen, the son, had entered into a conspiracy, prior to the killing, which resulted in the killing, and that Oscar Allen was present at the killing encouraging, aiding, and abetting his son.

The record is voluminous and the testimony of numerous witnesses is conflicting in many respects, and it is impossible to make an accurate detailed statement of all the material facts. Consequently, it will be deemed sufficient to only state the facts dealing with the assignment of error, which alleges that Oscar Allen should have been granted a peremptory instruction, and that the court erred in submitting the theory of conspiracy to the jury, and in admitting an alleged statement, or request by Oscar Allen to Elmer Gravette, prior to the killing, to go with him (Oscar Allen) to whip one Jess Peden.

On the morning of the killing, Oscar Allen went to the home of his son, Willie Allen, and expressed a desire to go to see Gravette and endeavor to purchase some wheel scrapes, used in road building, from Gravette, he having had a contract to build or repair the De Kalb and Philadelphia highway and having finished the work or lost his job. Oscar Allen desired to purchase these wheel scrapes to secure jobs upon the highway for his sons. Willie Allen, the other appellant desired to carry a car of his to the crossroad garage some ten miles east of Philadelphia to have a hood and radiator repaired, so they decided to make the trip to see Gravette and to the crossroad garage. They claim that Willie Allen had a pistol belonging to Oscar Allen at his home for the purpose of killing hogs, which had been done, and that Oscar Allen expected to kill some hogs as early as the weather permitted, and asked Willie Allen to get the pistol, stating that they would carry it along and he would carry it home. They then proceeded on the De Kalb and Philadelphia road to the place where Gravette lived, inquired for him, and were informed that he and others had gone to Philadelphia, and that the appellants then proceeded to the crossroad garage between Gravette's place and Philadelphia, left the parts to be repaired, and decided to go on to Philadelphia and see Gravette. They then proceeded two and one-half to three miles and met Gravette in company with Clover Davis, Pedro Paine, and Gene George. The Allen car was left at the garage, and Gravette invited Oscar Allen to ride with him which Mr. Allen did. Mr. Gravette gave Oscar Allen a drink of whisky, and the Gravette car then proceeded in the direction of the Gravette home, with the above named, Davis, Paine, George, Gravette, and Oscar Allen, as its occupants. As they proceeded, Oscar Allen was telling of his ability to deal cards in a certain way, and Mr. Gravette called him a liar, and they indulged in some friendly badinage, when one of the other occupants of the car remarked to them that they were friendly, and suggested that they stop cursing, which they did, and presently Oscar Allen uttered some curse words and Gravette told him to hush, Oscar Allen did not hush, and Gravette said if he...