Bell v. State

• Decision Date: 25 February 1907
• Docket Number: 12,491
• Citation: 90 Miss. 104,43 So. 84
• Court: Mississippi Supreme Court
• Parties: FLAVIUS BELL v. STATE OF MISSISSIPPI

43 So. 84

90 Miss. 104

FLAVIUS BELL v. STATE OF MISSISSIPPI

No. 12,491

Supreme Court of Mississippi

February 25, 1907

FROM the circuit court of, first district, Panola county, HON JAMES B. BOOTHE, Judge.

Bell the appellant, a negro, was indicted and tried for assault and battery with intent to murder another negro, one Applewhite; was convicted and sentenced to the penitentiary for five years, and appealed to the supreme court.

The defendant, Bell, was in the house of a negro woman, Lula Ford, and was handling a shotgun when Applewhite came to the house to get a bucket which he had shortly before left in the Ford kitchen. As he was entering the kitchen he was shot by defendant; the evidence sharply conflicting as to whether the shooting was intentional or accidental; according to the evidence offered by the state, the defendant was cautioned by Applewhite, about handling the gun carelessly, whereupon he threw his gun to his shoulder, and without provocation aimed and fired at Applewhite, only a few feet away; but according to the evidence offered by defendant, chiefly the testimony of the woman, Lula Ford, an eyewitness, the shooting was accidental. Defendant himself did not testify. To impeach the testimony of the woman the state in rebuttal introduced one Taylor, the justice of the peace before whom the preliminary trial of the defendant was had, and before whom the woman had testified. This witness, Taylor, testified that while he recollected that the woman, Lula Ford, testified as a witness at the preliminary trial he had no independent recollection of what she had testified. Over the objection of defendant the court below permitted the witness, the justice of the peace, to refer to a written memorandum of the evidence made by him at the preliminary trial, but not signed nor certified by him to the circuit court as part of the record, and to testify solely from such memorandum that Lula Ford testified in the committing court before him that defendant purposely shot Applewhite. Before so testifying, however, the witness admitted, in response to inquiries of defendant's counsel, that the memorandum did not refresh his memory as to what the woman stated on the preliminary trial, and that he did not know whether or not the memorandum contained all of her testimony on that trial. The first and second instructions for the state are as follows:

"(1) The court instructs the jury for the state that they are the sole and exclusive judges of the weight of the evidence and the credibility of witnesses, and in determining how much weight or credit they will give to the testimony of any witness, if any at all, they may take into consideration the reasonableness or unreasonableness of such testimony; the fact, if such is shown by the evidence, that the witness has made contradictory statements about material matters in this case; that any witness has been convicted of any crime, if such is shown by the evidence; or if the jury believe from the evidence that any witness has sworn falsely to any material matter in this case the jury may disbelieve and disregard the whole testimony of such witness.

"(2) The court instructs the jury for the state that if they believe from the evidence beyond a reasonable doubt that the defendant deliberately raised a shotgun loaded with buckshot to his shoulder and fired it at Wm. Henry Applewhite, who was only a few feet away, and shot him in the cheek and tore away his nose with the contents of said gun, then the law presumes that defendant intended to kill appellant unless the contrary appear from the evidence in the case."

Reversed and remanded.

A. W Shands, for appellant.

It was error to permit Taylor, the justice of the peace before whom the preliminary trial of appellant was held, to read in evidence, on the trial in the circuit court, any of the written memorandum of the testimony of the witness, Lula Ford, taken down by him on the preliminary trial. And it was error for the state to introduce as an exhibit to his testimony the written memorandum. Taylor testified that he had no remembrance of what the woman had stated in his court. The memorandum was not legally admissible as a record of evidence taken down in the justice's court, for there was no official certificate to it. It could not be used as an aid in refreshing the witness Taylor, for, although made by him at the time the woman made her statements as a witness before him, it did not refresh his memory. In answer to a question propounded to him by counsel for appellant before he had read the contents of the memorandum, he stated: "It does not refresh my recollection, but it is my writing, and I would swear that it is what was said during that trial. So far as refreshing my memory, I can only rely on this paper, for I don't remember a word that was said." The testimony of this state's witness, Taylor, was very material, if competent, as it went to prove statements made by appellant's principal witness when under oath, in conflict with statements made by her subsequently in the circuit court under oath. Hence, as it is submitted that the testimony was incompetent, its admission constituted reversible error.

The first instruction granted to the state was clearly erroneous. The last clause reads, "and if the jury believe from the evidence that any witness has sworn falsely to any material matter in this case the jury may disbelieve and disregard the whole testimony of such witness." This court has passed upon instructions such as this so often that it would seem that district attorneys in drawing instructions as to false swearing would by this time never fail to insert the qualifications that the false swearing must have been wilfully, knowingly and corruptly done. For unless the instruction contains such qualifications it is erroneous. White v. State, 52 Miss. 227; Davis v State, 89 Miss. 119, 42 So. 541; Finley v. Hunt, 56 Miss. 221.

There was also error in the second instruction granted to the state. The sole defense relied upon by appellant was, that the shooting was accidental. The instruction charged the jury that if the appellant deliberately raised his shotgun and shot Applewhite, then the legal presumption is that appellant intended to kill Applewhite, unless otherwise distinctly shown. This instruction was erroneous for the reason that it failed to embrace the existence of malice aforethought, or that the shooting was done with the deliberate design in appellant's mind to effect the death of Applewhite. It merely instructed the jury on the weight of the evidence. In the case of Hibbler v. State, 87 Miss. 362, S.C., 39 So. 846, in a terse and clear opinion delivered by Justice TRULY, the court set out the things which a...