Allen v. State
| Decision Date | 13 May 1889 |
| Citation | 66 Miss. 385,6 So. 242 |
| Court | Mississippi Supreme Court |
| Parties | STEVE ALLEN v. THE STATE |
FROM the circuit court of Lafayette county, HON. W. M. ROGERS Judge.
The opinion recites the facts.
Judgment affirmed.
W. S Chapman, for appellant.
The first instruction having reference to previous threats was plainly erroneous and misleading, and must have been very prejudicial to defendant. There was no proof of any threats by the accused. The only mention of threats in the case was in the testimony of Brown, who was allowed to tell what the witness Sadler had told him. But this was merely for the purpose of impeaching the witness. It could not be used for any other purpose. Yet the court granted an instruction based upon it as being evidence of previous threats by the accused.
It was the duty of the court to have interfered and stopped the district attorney when proceeding to comment upon the matter of previous threats, as being in evidence. Defendant's counsel could not object to such argument, because the court had given the instruction over his objection, and it would have been useless, Cavanah v. The State, 56 Miss 309.
Thus the most prejudicial fact made use of in the case against appellant is not really in evidence, but as a hearsay statement, which could legally be used for only one purpose, viz.: impeachment of the witness.
T. J. Wharton, acting attorney-general, for the state.
The verdict is manifestly correct under the evidence.
The first instruction, which defines malice and its ingredients, follows the standard elementary authorities as to what are the indicia of it, or how it is indexed. Express malice is evidenced, among other things, by previous threats. It was competent for the state to prove threats made by the accused, and to do this by the defendant's own witness was allowable. Such evidence cannot be excluded under the rule that a witness cannot be contradicted or impeached on an immaterial matter.
Upon the whole case the verdict is amply supported by the testimony, and a different verdict would do violence both to the law and the evidence.
For the purpose of considering the principal error assigned, viz.: the perversion by the district attorney of certain testimony, admitted to impeach the credibility of a witness for the defendant, to establish a relevant and highly injurious fact against the accused, it is only necessary to bring into juxtaposition certain portions of the record.
The deceased was a "section boss" on the Illinois Central Railroad, and the accused was one of the hands working under him. On the morning of the killing the deceased had a difficulty with accused and cursed him and exhibited a pistol. The accused left the road and soon afterward the deceased also left, returning in an hour or two with a gun loaded with "buckshot." He walked up the track, looking down on the ground, and while near the laborers engaged in work, and in a deep cut, he was accosted by the accused, who was on the bank some forty feet above him, who said: "Mr. Hadnott, you cursed me this morning and had a pistol and now you have a gun." Deceased immediately turned in the direction of accused and raised his gun, whereupon the accused shot and killed him. No witness for the state or the defendant had given any evidence of threats made by accused at the time he left the road in the morning.
A witness for defendant, Sadler, who had given about the same history of the killing as the witnesses for the state, was asked upon cross-examination by the...
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Lipscomb v. State
... ... appellant to reverse the judgment and award a new ... trial." But the court held that the defendant was guilty ... on his own testimony, and affirmed the judgment, ... notwithstanding these serious errors. Exactly the same point ... is decided the same way in Allen v ... State , 66 Miss. 385, 6 So. 242. These cases go upon ... the ground that this court should affirm the verdict of the ... jury finding a defendant guilty, where this court, passing ... upon the testimony of the defendant himself, sees that it ... makes him guilty. There can be no ... ...
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State v. Short
...a certain matter. To the same effect: Davis v. State, 92 Ala. 20, 28, 9 So. 616; State v. Neeley, 20 Iowa 109, 115; Allen v. State, 66 Miss. 385, 6 So. 242; State v. Crowford, 115 Mo. 620, 22 S.W. Rogers v. State, 95 Tenn. 448, 453, 33 S.W. 563; Johnson v. State, 26 Tex.App. 631, 641, 10 S.......
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Cooper v. State
...intentionally provoked the occasion which produced the killing? If so, there can be no self-defense in this case." In Allen v. State, 66 Miss. 385, 6 So. 242, the stated in the opinion are as follows: "The deceased was a 'section boss' on the Illinois Central Railroad, and the accused was o......
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Woods v. State
...use although it was usable to befuddle the jury in argument. Thomas v. State, 61 Miss. 60; Long v. State, 52 Miss. 23; Allen v. State, 66 Miss. 385, 6 So. 242; Helm State, 67 Miss. 562, 7 So. 487; Ross v. State, 158 Miss. 827, 131 So. 367. A great deal of what we have had to say in referenc......