Brown v. State

• Decision Date: 30 April 1906
• Citation: 40 So. 737,88 Miss. 166
• Court: Mississippi Supreme Court
• Parties: THOMAS BROWN v. STATE OF MISSISSIPPI

40 So. 737

88 Miss. 166

THOMAS BROWN v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

April 30, 1906

FROM the circuit court of, first district, Carroll county, HON. J T. DUNN, Judge.

Brown the appellant, was indicted for the murder of Murdee Williams, by the grand jury of Montgomery county, where the homicide took place. He was tried in that county, convicted and sentenced to suffer death, from which he appealed to the supreme court--the first appeal, where the conviction was reversed and a new trial granted. Brown v. State, 83 Miss. 645 (s.c., 36 So. 73).

The venue having been changed to the first district of Carroll county, the appellant was tried a second time and was again convicted and sentenced to suffer death, from which conviction and sentence he again appealed to the supreme court--his second appeal, and this conviction was reversed and a third trial awarded. Brown v. State, 85 Miss 511 (s.c., 37 So. 957).

Upon remand of the case the third trial was had; defendant was a third time convicted and sentenced to suffer death, and appealed therefrom--his third appeal, the present one, to the supreme court.

The facts are stated in the opinion of the court.

Reversed and remanded.

George A. McLean, and Pat Luter, for appellant.

There is no dispute as to who the aggressor was in the difficulty which occurred forty minutes, and the one which occurred two weeks before the homicide, and this record shows that the appellant was seriously wounded when the killing did occur; and the fact that there is a conflict in the evidence as to who the aggressor was in the fatal encounter, under the decisions of this court permits the introduction of threats and previous difficulties to show who the aggressor was in the last difficulty. Guice v. State, 60 Miss. 723; Hawthorne v. State, 61 Miss. 749; Holly v. State, 55 Miss. 424; Kendrick v. State, 55 Miss. 448; Spivey v. State, 58 Miss. 864; Foster v. State, 70 Miss. 755 (s.c., 12 So. 822).

In this case, Brown v. State, 85 Miss. 513 (s.c., 37 So. 957), WHITFIELD, C. J., delivering the opinion of the court, said: "Under the peculiar circumstances of this case as disclosed in this record, it was fatal error to refuse to allow the defendant to show on cross-examination of Scott Thompson, introduced by the state in rebuttal, the details of the previous difficulty." The opinion further states as follows: "The record in this case, we may add, makes it perfectly plain that the justice of the case required, after the state had been permitted to prove that such difficulty had occurred, that the defendant should be allowed to show the details of the difficulty in order to demonstrate who was the aggressor in the difficulty resulting in the killing." As we understand the decision above mentioned and the language quoted, the court recognized that there was a conflict in the testimony as to who was the aggressor, and that this case clearly comes within the rule laid down in the Guice case above quoted and the other authorities, and that the court fully realizes and recognizes the intimate connection of these two difficulties--the one occurring two weeks before the fatal one--and that the ingenuity of counsel to attempt to show by argument that there was no connection falls in the face of the decision heretofore rendered in this case, as well as the mistaken view of the trial court in excluding this testimony.

When the state was permitted to show flight, the defendant to meet this issue should have been permitted to show his reason for fleeing and the cause of his flight. Within the space of a half or three-quarters of an hour after the homicide, Oliver Bibb was shot to death--although an innocent man--by a mob for a supposed connection with this homicide. Was it not reasonable for this defendant to flee, and as matter of explanation of his conduct is it not right and legal that this testimony of the witness, Branch, should have been admitted.

J. N. Flowers, assistant attorney-general, for appellee.

The three juries which have convicted appellant have been called upon to determine who tells the truth, appellant or the state's witnesses. These three juries have accepted the account of the transaction given by Thompson. They have been fully warranted in so doing. If his story be true, as these juries have believed, this accused is guilty of murder. These juries have settled that a murder was committed. There is no doubt of Brown's ability to have protected himself according to his own story. He left the scene of the first difficulty, went away and stayed some little time, then came back and put himself in a position where he would necessarily invite the attention of young Williams if he should come that way. In the meantime it appears that appellant had armed himself for the fight and was prepared to stand his ground.

In the trial of one case the court will not undertake to try every other case growing out of difficulties between the same parties; and no testimony in any trial ought to be admitted which does not throw light upon the issue to be submitted to the jury. How, under the facts of this record, could the details of previous difficulties throw light upon the question as to who was the aggressor in this one?

The court said, when this case was heard the last time, that it was error for the trial judge to admit proof by the state of the fact of the difficulty unless the accused should be allowed to show the details of it. But on the trial shown by this record the state did not prove the fact of a previous difficulty. The accused proved that there had been a difficulty and then undertook to show the details of it.

I have been unable to find in the books but one exception to the rule that the proof must be confined to the difficulty out of which the case on trial grew, and that is in those rare cases where the previous difficulties have been so frequent, the same party always being the aggressor, that it could be reasonably inferred that the party who had formerly been the aggressor in such difficulties was the aggressor in the instance involved in the present trial. In cases of this kind the frequent assaults demonstrate the standing, continuing purpose. They evidence design as conclusively as threats. They show the existence of the design; the threat is only a verbal expression of it. The party commits the act instead of threatening to commit. We reason that he harbors purpose to do it simply because he does it when the occasion presents itself. It is only when previous difficulties have been so frequent and uniform as to show that the aggressor in them entertains a standing purpose to do harm to the person assailed that proof of them is admissible.

The case at bar shows no such state of facts. It does not appear that the deceased assaulted Brown whenever he found him in the neighborhood of these women; it does not even appear that the deceased knew these women or cared anything about them. It does not appear that he objected to Brown's paying them attention; it does not appear but that they fully understood each other in this regard. As far as this record shows, there is not the slightest connection between the fatal difficulty and the one of a few weeks before.

There is no theory and no reason upon which the exclusion by the court of the facts of the former difficulty can be condemned unless it is that these former difficulties proved that young Williams harbored the design to assault or whip this accused every time he saw him or every time he found him in the neighborhood of these women, and there are no facts shown by the record, or suggested by counsel in his statement to the court, when the occasion demanded a full statement, upon which to base such a reason or such a theory.

Guice's case, relied upon by counsel, does not condemn the action of the lower court. In that case this court was dealing with threats. Threats may evidence design; repeated similar difficulties may also evidence design. That case is not authority here unless the proof offered of the former difficulties is of such nature as to evidence a standing, harbored design. That the deceased and the defendant had a difficulty on a former occasion, in which the deceased was the aggressor, does not of itself even tend to show that on the present occasion he was the aggressor. The authorities referred to in Guice's case and those cited by counsel in his brief all deal with threats and not with previous difficulties.

Argued orally by J. N. McLean, for appellant, and by J. N. Flowers, assistant attorney-general, for appellee.

CALHOON, J. WHITFIELD, C. J., concurring.

OPINION

CALHOON, J.

We said, when this case was before us on a former appeal (85 Miss. 511; 37 So. 957), and we repeat again: "The record in this case makes it perfectly plain that the justice of the case required, after the state had been permitted to prove that such difficulty had occurred, that the defendant should be allowed to show the details of the difficulty in order to demonstrate who was the aggressor in the difficulty resulting in the killing." It is true that on the trial, the proceedings of which are presented in the present record, the state did not itself prove that the previous difficulty had occurred; but the defendant cannot by such tactics be deprived of his legal rights. The testimony as to the previous recent difficulty between the appellant and the deceased was not made competent alone by the fact that the state had shown affirmatively the fact of the difficulty, but by reason of that principle of law, well settled in this state, that wherever there is doubt, confusion, dispute or conflict as to the origin of the difficulty, or as to who was the aggressor in the difficulty which resulted in the death and when...