Anderson v. State

Citation45 So. 359,91 Miss. 407
Decision Date27 January 1908
Docket Number12853
CourtMississippi Supreme Court
PartiesDAVID ANDERSON v. STATE OF MISSISSIPPI

FROM the circuit court of Jefferson county, HON. MOYSE H WILKINSON, Judge.

Anderson appellant, and another were jointly indicted for the murder of Samuel Libowitz. A severance being granted, appellant was tried convicted, sentenced to suffer death and appealed to the supreme court.

The appellant, a negro, was convicted on circumstantial evidence and admissions made by him shortly after the homicide; he did not testify in the case. Two witnesses for the state, Horace Payne and Henry King, over the objection of appellant, were permitted to testify touching the details of a previous difficulty between deceased and appellant, occurring two or three months before the killing, each, however, admitted that he did not know whether the appellant and deceased continued on bad terms from the time of the former difficulty to the date of the killing. After another witness had testified for the state and after the state had rested its case, but before defendant offered any evidence, the trial court, on motion of appellant, ruled out the testimony of Payne and King.

Reversed and remanded.

R. S Dorsey, N. R. Allen, and R. L. Corbin, for appellant.

The court below erred in not excluding the testimony of Payne and King, witnesses for the state, when the appellant first objected to their testifying as to a previous difficulty between appellant and deceased some two or three months before the homicide. It is only in exceptional cases that the evidence of a previous difficulty is admissible. All doubts in favor of the accused in murder trials should be resolved in favor of the accused. In Daniel v. State, 103 Ga. 202; 29 S.E. 767, it is stated that "repeated quarrels may be shown between the parties to establish the feelings of the parties; but one cannot go back to a remote period to prove a particular quarrel or grudge unless it be followed up by proof of a continuous difference following from such course." Now, in the case at bar, there was no proof of a continuing difficulty between the appellant and the deceased, but instead only a remote quarrel some months prior to the murder. The quarrel is nowhere connected with the killing. That evidence of a former difficulty is inadmissible, see Hawthorn v. State, 61 Miss. 749; Guice v. State, 60 Miss. 714; Holly v. State, 58 Miss. 864; Foster v. State, 70 Miss. 755; Brown v. State, 88 Miss. 166; Daniel v. State, 103 Ga. 202; State v. Westfall, 49 Ia. 328; Wigmore on Evidence, § 396; Brown v. State, 87 Miss. 800.

The fact that the jury were subsequently instructed by the trial court to disregard the incompetent testimony will not cure the error, and a new trial should have been granted. Chism v. State, 70 Miss. 742; Taylor v. Adams, 58 Mich. 187; State v. Meader, 54 Vt. 126. In this case, the evidence being circumstantial, the error of the trial court in allowing such incompetent evidence to go before the jury was far more prejudicial to appellant, race prejudice being considered, than would be the case ordinarily. It is folly to say that this evidence did not have great weight upon the minds of the jury.

George Butler, assistant attorney-general, for the appellee.

It was not error in the court below to permit the state to show the...

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