Brett v. State

• Decision Date: 21 December 1908
• Docket Number: 13,518
• Citation: 94 Miss. 669,47 So. 781
• Court: Mississippi Supreme Court
• Parties: ALBERT C. BRETT v. STATE OF MISSISSIPPI

47 So. 781

94 Miss. 669

ALBERT C. BRETT v. STATE OF MISSISSIPPI

No. 13,518

Supreme Court of Mississippi

December 21, 1908

FROM the circuit court of Covington county, HON. ROBERT L BULLARD, Judge.

Brett appellant, was indicted, tried and convicted of murder sentenced to the penitentiary for life and appealed to the supreme court. The facts are fully stated in the opinion of the court.

Reversed.

Robert N. Miller and Hugh Barr Miller, for appellant.

George Butler, assistant attorney-general, for appellee.

[The reporter has been unable to find the briefs of counsel in this case, hence no synopsis of them is given herein.]

OPINION

WATKINS, ^[*] Special Judge.

The appellant was indicted by the grand jury of Covington county for the killing of one Daniel G. McCann, which occurred in the town of Mt. Olive on the 8th day of July, 1908. He was convicted of murder, and sentenced to life imprisonment in the state penitentiary. The deceased was engaged in editing and publishing a newspaper at Mt. Olive, and occupied for that purpose a one-story frame building, situated on the south side of the town, facing north. From the roof of the building an awning projected over the sidewalk, which awning extended the entire width of the building. On the east side of this building there was a vacant space of about thirty-six feet in width, and on the west a two-story frame building, the second story of which was occupied by the Cumberland Telephone Company as an exchange. From the latter building a porch or gallery extended from the second story immediately over the sidewalk, which gallery had around it banisters through which there were openings about ten inches in size.

The principal witnesses for the state were one Carl Speed and his wife. Speed claims that, being attracted by the difficulty below, he went to the window, situated at the north end of the second story occupied by the Telephone Company, and while kneeling on the floor, with his elbows in the window, viewed the homicide through an opening in the banisters by looking under the awning which covered McCann's building; that he could see McCann distinctly, but that not more than half of Brett's body could be seen. Mrs. Speed testified that she was standing against the wall, just west of the window out of which her husband was looking, and with her head slightly inclined also viewed the homicide by looking through one of the openings in the banisters and under the awning; it being asserted by both witnesses that McCann was standing, at the time he was shot, at some point on the sidewalk in front of the open space above indicated, a few feet east of the outer wall of the building occupied by him (the exact point being in dispute), and that Brett also stood on the sidewalk near the eastern side of the thirty-six-foot space which intervened. Both of these witnesses testified that from their respective positions they saw the fatal shot fired, and their testimony, if believed by the jury, was very damaging to the appellant.

Counsel for the appellant below at the trial of this case seriously questioned the ability of Speed and his wife to see the homicide, situated as they then were, contending that it was impossible for them to have seen either of the parties. While there were other witnesses for the state directly across the street, one hundred and ten feet distant, who claimed to have seen the homicide, it cannot be doubted but that the truth or falsity of the testimony of Mr. and Mrs. Speed was the most material issue of disputed fact. About three days after the trial began, and just prior to the close of the state's case, Speed and one of the attorneys for the prosecution took a photographer to the scene of the killing and had him make some photographs of the situation as the witness Speed claimed it existed. It will only be necessary for us to refer to two of these photographs. Exhibit A was taken by having the photographer place his instrument at a point on the sidewalk in front of the thirty-six foot vacant space east of the building occupied by McCann, where Speed testified that McCann stood when he was shot; and it must be borne in mind that the exact point was a matter of dispute, even among the state witnesses. Then the witness Speed and one of the attorneys for the state went upon the gallery in front of the telephone office, Speed putting himself in the position in which he claims to have been at the time he saw the killing, and the assistant prosecuting attorney putting himself in the position in which it is claimed Mrs. Speed was standing at the time of the occurrence, and the photograph offered as Exhibit A by the state represents Mr. and Mrs. Speed peering through the openings in the banisters under the awning and out to the sidewalk beyond. Exhibit C represents the two-story building occupied by the telephone company, the one-story building occupied by McCann, and the thirty-six foot space east of the McCann building. The assistant prosecuting attorney was standing at a point where Speed testified that the deceased stood at the time the shooting occurred, and the witness Speed himself took the position where he claimed the appellant was standing at the time of the shooting; the photographs being taken from the opposite side of the street. Exhibits A and C were both offered in evidence upon the part of the state, and were objected to by the appellant's counsel on the ground that they were not pictures of the actual occurrence as it took place, but were artistic reproductions arranged by the state's chief witness, and that the photographs did not represent the parties as being where the evidence showed them.

The court sustained the objection made by the appellant in reference to Exhibit C, but admitted over the appellant's objection the photograph introduced...