Beauchamp v. State

CourtUnited States State Supreme Court of Mississippi
Citation91 So. 202,128 Miss. 523
Decision Date03 April 1922
Docket Number22402

1 HOMICIDE. Question by deceased as to why defendant shot him and deceased's statement that he never harmed any one held admissible as part of dying declaration.

While making a dying declaration the deceased, who was killed by the defendant on trial for homicide, asked the person to whom the declaration was being made why the defendant shot him and stated that he never harmed the defendant, never harmed any one; this question and statement are not the expression of a mere opinion by the deceased, but are, in effect, a statement of fact that the defendant shot the deceased for nothing, and are admissible in evidence as a part of the dying declaration.

2 HOMICIDE. Deceased's statement several months before his death, that he expected to get well, held not admissible to impeach his subsequent dying declaration.

A statement by the deceased on a trial for homicide, made while in the hospital and several months before his death, that he expected to get well and return home, is not admissible in evidence to impeach the credibility of a dying declaration, made by the deceased some months thereafter.

3. HOMICIDE. Where evidence conflicts as to who was aggressor, deceased's uncommunicated threat against defendant is admissible.

Where the evidence on a trial for homicide as to whether the deceased or the defendant was the aggressor is conflicting, a threat by the deceased to use personal violence against, though not communicated to, the defendant, is admissible in evidence.

4. CRIMINAL LAW. Circumstances under which deceased threatened defendant are competent to explain threat.

In a prosecution for homicide, the circumstances under which a threat admissible in evidence was made are competent to explain its meaning and significance.

ANDERSON and ETHRIDGE, JJ., dissenting.

HON. C. P. LONG, Judge.

APPEAL from circuit court of Monroe county, HON. C. P. LONG, Judge.

Dr. I. W. Beauchamp was convicted of manslaughter, and he appeals. Reversed and remanded.

Judgment reversed, and cause remanded.

Leftwich & Tubb and L. W. Houston, Sr. & Jr., for appellant.

Self-defense. General Threats. Evidence. Instructions. Although the evidence for the state may show a case of murder, if there is testimony to the effect that deceased was killed while trying to draw a pistol, when an effort was made by accused to arrest him, the court will not weigh the evidence, but should submit to the jury instructions on the right of self-defense and admit evidence of threats made by deceased to kill anyone attempting to arrest him, leaving the jury, on the whole case to accept or reject defendant's theory. Harris v. State, 72 Miss. 99, cited by 21 Cyc. 965.

Homicide. Evidence of Threat Admissible. General. In a prosecution for murder of a constable, testimony that defendant, a deserter from the army, several weeks before the difficulty, uttered threats against any officer who should undertake to arrest him, held admissible. Boatwright v. State, 83 So. (Jan. 31, 1920) 311, 120 Miss. 883 and 896, citing Harris v. State, supra.

Admissibility of Uncommunicated Threats by Decedent. It was prejudicial error to exclude testimony on a trial for homicide of uncommunicated threats by decedent against accused where accused claimed to have acted in self-defense, since such threats indicated the feeling of deceased toward accused. Leverett v. State, 112 Miss. 396 & 406 (73 So. 273) citing Harris v. State, 72 Miss. 99, 406.

Uncommunicated Threats Admissible Where There was Doubt, or Conflict as to Who Was the Aggressor, or Where They Throw Light on the Significance of the Acts of the Deceased. Sinclair v. State, 87 Miss. 330; Echols v. State, 99 Miss. 683; Brown v. State, 88 Miss. 171; Johnson v. State, 66 Miss. 189; Bell v. State, 66 Miss. 192; Prue v. State, 73 Miss. 838. Reversible error to exclude, Mott v. State, 86 Miss. 514.

Conditional Threats of Deceased Admissible Where the Condition of the Threats had Materialized. Entire Conversation in Which Threats Were Made are Admissible. 21 Cyc., Note p. 964, citing Adams v. State (Tex. 1904), 84 S.W. 231; Owens v. State, 80 Miss. 510.

All of the Circumstances Under Which Threats Made are Admissible. Defendant has the right to show all of the circumstances which go to show the character of the threat, the intention with which they were made, and the grounds of fear on which defendant acted, as bearing upon the difficulty whether the grounds for fearing death or serious bodily harm were serious. 21 Cyc., Note p. 964, citing Poole v. State, 45 Tex. Cr. 348, 76 S.W. 565; Russell v. State, 11 Tex.App. 388.


The Dying Declaration. The court went far afield, and permitted this witness to tell of statements made to his mother by deceased long after the shooting, conclusions which he had then drawn some months thereafter. Lipscomb v. State, 75 Miss. 559; Guest v. State, 96 Miss. 872; Jones v. State, 79 Miss. 309; House v. State, 94 Miss. 107.

It is hardly necessary to cite authorities to show that this character of testimony is at best mere hearsay and intrinsically weaker than if the declarant had been present at the time in court and sworn and subject to cross-examination. Lambert v. State, 23 Miss. 322.

Certainly Miss Hulsey's testimony was competent to go to the jury and let them judge, not as to the admissibility of it, but as to the weight and credibility to be given the dying declaration under all of the circumstances. See authorities cited in 2 Bobbs & Merrill Digest, p. 596 and 597; citing among others: For the purpose of showing deceased to have been the aggressor, and the killing to have been in self-defense, defendant can introduce evidence tending to show deceased entertained hostile feelings toward him, and that deceased had evinced by acts or conduct hostility to him. Evidence of language used by deceased conveying and giving color to his hatred or unfriendliness towards defendant, are admissible. 21 Cyc. 962 and Note 28, citing Ind. & Indiana Terr. & Tex. Cases; Clark v. State, 123 Miss. 147, 156, 157; Forest County, Decided March 9, 1920.

Defendant Need not Be Named in Threat. Sufficient if Included in Scope.

It is not necessary that defendant should have been named in the threat, it being sufficient if the circumstances show that he was the person against whom it was directed (Sparks, Ky., 20 S.W. 167; Young v. Com, 42 S.W. 1141, Ky.) and evidence of threats against a class to which defendant belongs is admissible, it being for the jury to determine whether they were made against defendant. (State v. Hopper, 44 S.W. 272), threats against Hopper Boys; Mayfield v. State, 11 N.E. 618 (Ind.); Harris v. State, 72 Miss. 99, 37 P. 53, Ore. See 21 Cyc. page 965.

If Any of Colloquy Admissible, it Should be Admitted as a whole. In a prosecution for homicide, it was error to exclude testimony that the mother of deceased had told deceased that he had brought the trouble on himself, and that if he had listened to her, he would not have been involved therein; and to admit the deceased's answer, wherein he said: "Yes, if my gun had fired, I would have killed him, for if any of the colloquy was admissible it should have been admitted as a whole. 1 Bobbs & Merrill's Miss. Digest Criminal Law, 711, sec. 415, citing Flowers v. State, 85 Miss. 591, 597-8; Nelms v. State, 13 Smedes & Marshall 500; Lambert v. State, 23 Miss. 322; Gambril v. State, 92 Miss. 728; Marley v. State, 109 Miss. 717.

The rule is very well stated indeed in the Gambrill case, to the effect that the dying declaration of a party is simply a part of the evidence, and is not regarded in law as more sacred than the testimony of a witness. It is subject to discredit and impeachment by any competent testimony which impairs its value.

Also in the Nelms case that it is for the court to determine upon the competency of such evidence, and for the jury to adjudge its credibility, and to that end it is important that all the deceased said should be before the jury.

Geo. T. Mitchell, for the state.

After the court had excluded the testimony of the witness Grady as a whole, counsel for defendant then offered specific portions of his testimony that portion pertaining to threats against Dr. Beauchamp by Frank Frash and now say that the action of the court in excluding that specific portion constitutes reversible error. I submit that the court below was correct in excluding all the testimony and rest my contention upon the case of Hinson v. State, 66 Miss. 532.

Counsel for appellant complain that in the admission of the dying declaration of deceased, as testified to by Mrs. Frash the declaration was not restricted to the alleged facts and circumstances surrounding the homicide, but that Mrs. Frash was permitted to testify to conclusions and matters of opinion and conjecture of deceased. Considerable authority has been cited to show that the dying declaration of deceased must be confined to the facts surrounding the homicide. I concede most readily this to be the law, but I insist that the dying declaration introduced in this case contains simply a recital of the facts of the homicide as detailed to Mrs. Frash by her dying son. He goes into detail about the matter and gives his movement up to the time of the firing of the fatal shot. These declarations were made by him time and time again during the five long months that he suffered. I earnestly insist that in the admission of the dying declaration, and all parts of same, there was not only no reversible error, but no error at all.

Counsel for appellant complain next that it was reversible error to exclude the testimony of Miss Emma Hulsey, a witness offered in behalf of appellant....

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10 cases
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    • United States
    • United States State Supreme Court of Mississippi
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    ...... verdict of manslaughter. Such compromises should not be. suggested, much less encouraged. . . When an. overt act has been shown to have been made by the deceased an. uncommunicated threat made by the deceased against the. defendant is admissible. . . Beauchamp. v. State, 128 Miss. 523, 91 So. 202; Muse v. State, . 130 So. 693; Lambert v. State, 171 Miss. 474, 158. So. 139; [182 Miss. 845] Hendrix v. State, 172 Miss. 589, 161 So. 151; Lee v. State, 174 So. 85. . . Instruction. No. 2 given for the State was fatally erroneous in that ......
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    • June 21, 1926
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