Brice v. State

• Decision Date: 25 May 1933
• Docket Number: 30356
• Citation: 167 Miss. 255,148 So. 348
• Court: Mississippi Supreme Court
• Parties: BRICE v. STATE

148 So. 348

167 Miss. 255

BRICE v. STATE

No. 30356

Supreme Court of Mississippi

May 25, 1933

Suggestion Of Error Overruled October 30, 1933.

(In Banc.)

1 HOMICIDE.

Whether deceased, stabbed several times by defendant, immediately taken to hospital, and there dying within three minutes, died from wounds inflicted by defendant, held for jury, and evidence was sufficient to sustain manslaughter verdict.

2. CRIMINAL LAW.

Generally defendant's previous expressions of fear of deceased and desire to avoid difficulty with deceased are inadmissible in defendant's behalf because self-serving, unless part of res gestae.

3. CRIMINAL LAW.

Generally defendant's previous efforts to induce third person to effect reconciliation between defendant and deceased or amicable settlement of their difficulties are inadmissible in defendant's behalf because self-serving.

4. CRIMINAL LAW.

Defendant's request to sheriff and police chief shortly before homicide to protect him against deceased's threatened violence held not admissible as part of res gestae, where fray resulting in homicide had not yet begun and deceased was not present.

5. WITNESSES.

In murder prosecution, excluding leading questions as to threats by deceased held not error.

6. HOMICIDE.

In murder prosecution, excluding testimony respecting threats by deceased held not error, where there was no attempt to show character of threats.

ETHRIDGE, J., dissenting.

HON. E. J. SIMMONS, Judge.

APPEAL from the circuit court of Lincoln county HON. E. J. SIMMONS, Judge.

Will Brice was convicted of manslaughter, and he appeals. Affirmed.

Affirmed.

J. N. Yawn, of Brookhaven, and J. H. Sumrall, of Jackson, for appellant.

Failure of state to properly prove corpus delicti was error.

Pitts v. State, 43 Miss. 472; Haynes v. State, 27 So. 601; Bourn v. State, 5 So. 626; Taylor v. State, 108 Miss. 18; Harris v. State, 155 Miss. 398; Wharton's Criminal Law (12 Ed.), secs. 348, 349, 356; 30 C. J., pp. 139-284-287; 13 R. C. L., pp. 736-738.

"It was prejudicial error on a trial for homicide to exclude testimony 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. 394.

There is an unbroken line of decisions by this court on the right of accused to introduce testimony with reference to previous threats or difficulty, and continued mala animo, as throwing light on the question of who was the aggressor, and especially where a plea of self defense is interposed.

Newcomb's case, 37 Miss. 400; Kendrick's case, 55 Miss. 436; Holley's case, 55 Miss. 424; Spivey's case, 58 Miss. 862; Guice v. State, 60 Miss. 714; Hawthorn v. State, 61 Miss. 749; Johnson v. State, 64 Miss. 430; Bell v. State, 66 Miss. 192; Johnson v. State, 66 Miss. 189; Prime v. State, 73 Miss. 838; Echols v. State, 55 So. 485; Miles v. State, 54 So. 946; Brown v. State, 88 Miss. 166; Burks v. State, 101 Miss. 87; Mott v. State, 123 Miss. 729.

The refusal of the trial court to allow the sheriff and chief of police to testify as to appeals made to said officers, just prior to the fatal difficulty, and immediately after the first attack made upon appellant by the deceased was error.

Nelson v. State, 58 S.W. 107; Fore v. State, 75 Miss. 727; Brown v. State, 87 Miss. 330; 30 C. J., p. 43, sec. 205; Aldridge v. State, 59 Miss. 250.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

The corpus delicti in a homicide case consists of two fundamental things: First, the death of the person shown by the indictment to have been the object of the homicide, and, second, that such party came to his death as a result of criminal action.

Pitts v. State, 43 Miss. 472.

One of defendant's own witnesses testified that he saw Magee on the ground after he was cut and that the blood was "skeeting" out, which fairly indicates that an artery had been severed. This statement of defendant's witness bears out the testimony for the state that the deceased had bled to death. All of this testimony is direct, positive, clear and convincing and thoroughly demonstrates that the corpus delicti has been sufficiently proven, namely, that the person named in the indictment was alive prior to the stabbing and that he is now dead, and second, that he came to his death as a direct result of criminal agency.

The second assignment of error deals with the action of the trial court in sustaining objections to testimony offered by the defendant with reference to threats made by the deceased against appellant. If the court has reached the right conclusion, even though he has given an insufficient, or no reason therefor, there is no error.

Carter v. State, 145 So. 739.

If the court sustained objections to the questions propounded by the defendant and the defendant has failed to make a record of what he seeks to prove, there is nothing for this court to pass on and the exclusion of such testimony cannot be made the basis of error in this court.

Temple v. State, 145 So. 749; Mooreman v. State, 131 Miss. 662, 95 So. 638; Reece v. State, 154 Miss. 862, 123 So. 892.

Testimony with reference to uncommunicated threats is not admissible until a conflict arises in the testimony as to who the aggressor was, or, in other words, until there has been a showing of self-defense, such testimony is not admissible.

Wilson v. State, 61 Miss. 212; Hill v. State (Miss.), 16 So. 901; Johnson v. State, 54 Miss. 430; Guice v. State, 60 Miss. 714; Hawthorne v. State, 61 Miss. 749; Johnson v. State, 66 Miss. 189, 5 So. 95; Salmon v. State, 118 So. 610, 151 Miss. 539.

Argued orally by J. H. Sumrall, for appellant, and by W. D. Conn, Jr., for the state.

Anderson, J., ETHRIDGE, J., dissenting.

OPINION

Anderson, J.

Appellant was indicted and convicted in the circuit court of Lincoln county of the crime of manslaughter and sentenced to the penitentiary for the term of twenty years. From that judgment he prosecutes this appeal.

On the night of October 12, 1931, appellant stabbed Nelson Magee to death. The homicide occurred at a circus held on the fair grounds in the city of Brookhaven. Appellant is a negro, and so was the deceased. Appellant claimed self-defense, that Nelson Magee was the aggressor, and that he stabbed deceased in order to save his life or avoid great bodily harm.

The evidence for the state made out a strong case of murder; that appellant was the aggressor; that the deceased was unarmed; and that appellant pursued Magee some fifteen or twenty feet, all the time stabbing him with a knife.

The evidence for appellant tended to show that the deceased was the aggressor and had some sort of a weapon. However, immediately after the deceased fell from the wounds, his person and surroundings were examined, and no weapon was found either about him or on his person. The evidence for appellant further tended to show that the deceased had taken appellant's wife away from him, and had threatened to kill him on several occasions; that until shortly before the homicide the appellant had been out of the neighborhood where he and Nelson Magee resided. The evidence further tended to show that deceased drove appellant away by threats and intimidation.

Appellant contends that he was entitled to a directed verdict because the evidence failed to show beyond a reasonable doubt that the deceased died as a result of wounds inflicted on him by appellant. No physician, nor any other person, testified directly that the wounds caused the death of the deceased, but the evidence shows without conflict these facts: That the deceased fell while appellant was stabbing him; that the deceased was at once examined by bystanders who testified that he had received several knife wounds and was very bloody; that he was immediately put into an ambulance and carried to a hospital; and that he died within two or three minutes after reaching the hospital. The only reasonable inference from these facts is that the deceased died from the wounds inflicted by appellant. There was no evidence whatever that there was any intervening cause that could have brought about his death. This was a question for the jury, and there was ample evidence to sustain the verdict. Bumpus v. State (Miss.), 166 Miss. 276, 144 So. 897.

Appellant offered to show by the sheriff of Lincoln county and the chief of police of the city of Brookhaven that shortly before the homicide he had appealed to them to protect him against the deceased's threatened violence. On the objection of the state, the court ruled out the proposed evidence. This action of the court is assigned and argued as error by the appellant. The general rule is that a defendant's previous expressions of fear of the deceased, and his desire to avoid a difficulty with him, are not admissible in his behalf, unless part of the res gestae, and the defendant's previous efforts to induce a third person to effect a reconciliation between himself and the deceased or an amicable settlement of their difficulties are not admissible in his behalf. Such declarations on the part of the defendant are self-serving; if admitted in the evidence in his behalf, there would be great inducement on his part to fabricate a defense. 16 C. J., pp. 635, 636, sec. 1265; 6 Ency. Evi., pp. 763, 764. The appellate court of Alabama in Bowling v. State, 18 Ala.App. 231, 90 So. 33, 34 said: "It was not permissible for the defendant to show, after the deceased had threatened him, that he (defendant) asked the chief of police for protection. This was nothing short of a self-serving declaration on the part of the defendant; neither was it material or competent for him to show that he went to see the chief of...