Bruce v. State

• Decision Date: 09 March 1925
• Docket Number: 24542
• Citation: 138 Miss. 382,103 So. 133
• Court: Mississippi Supreme Court
• Parties: BRUCE v. STATE. [*]

103 So. 133

138 Miss. 382

BRUCE v. STATE. ^[*]

No. 24542

Supreme Court of Mississippi

March 9, 1925

Division B

HOMICIDE. Evidence held insufficient to sustain conviction of defendant as accessory on theory that he aided and abetted in killing.

Evidence held insufficient to sustain conviction of defendant as accessory on theory that he aided and abetted in the killing committed by his son, where the most that could reasonably be inferred from evidence was that he was present and approved the act.

HON. R L. CORBAN, Judge.

APPEAL from circuit court of Franklin county, HON. R. L. CORBAN Judge.

John Bruce was convicted of murder, and he appeals. Judgment reversed, and defendant discharged.

Judgment reversed, and appellant discharged.

J. B. Webb and V. H. Torrey, for appellant.

No attempt was made to show that John Bruce, the father, had, at any time, had hostile feelings towards deceased, or ever had or intended to have any altercation with him on any account. It is shown, it will be admitted, that he knew of the state of feeling between his son and deceased, but it is also in evidence--and this is undisputed--that on the day preceding and the day of the homicide, he advised his son to "drop it," and to have nothing more to do with Bolling.

As the dummy drew into a log station, a regular place to discharge and take on workmen, or other passengers, Curtis Bruce jumped from the flat-car on which he and others were riding, and almost immediately struck deceased Bolling with his stick of wedge wood, from the effect of which Bolling died. John Bruce, too, got off the car at this point, but not until after his son had so struck and killed Bolling. As soon as he touched the ground, a brother of deceased, a young man, assaulted and beat the older Bruce unmercifully, ceasing only when Curtis, seeing his father in such plight, struck the assailant of his father twice on the head, with the same piece of wedge wood, knocking him from the prostrate body of his father. At this point the difficulty ceased. The wounded Bolling was conveyed to a hospital where he later died; the crowd dispersed and the Bruces were arrested and placed in jail where--denied bail on two applications--they remained until trial court convened.

From the state's examination of the witnesses it is impossible to say whether it proceeded on the theory that John Bruce procured or counseled the killing, and was, therefore, accessory before the fact, or that, being present at the killing, he was, therefore, a principal, in that his mere presence constituted aiding or abetting, or that both these theories were employed, in order that each might supply any deficiency in the other.

But there was no controversy or disagreement or contention anywhere in the evidence--that there had been a conspiracy, prearrangement or agreement between the Bruces, looking to the killing of Bolling, or of doing him any great bodily harm; and no counseling or procuring by the elder, touching the killing; and no evidence showing or tending to show, that John Bruce, beyond being present at the scene, did anything whatever by word, act or deed, or in "any other way" to aid or abet his son in such killing.

Under our authorities the record here shows that, in respect to this homicide, appellant, John Bruce, is guilty of no crime whatever, and that Curtis Bruce alone would be guilty of anything on the facts. Browning v. State, 30 Miss. 656; Harper v. State, 83 Miss. 402.

F. S. Harmon, Assistant Attorney-General, for the state.

It thus appears from the testimony that the appellant and his son were on the lookout for the Bollings and lost no time in commencing the fatal attack.

Since this appellant was convicted on the theory that he was present, aiding and abetting at the moment when his son struck the fatal blow, and that the fight was premeditated and prearranged by the appellant and his son, it become of first importance to notice carefully all the evidence tending to show a conspiracy on the part of the appellant and his son. Attention has been called to the fact that the father, appellant here, was on this train for the second consecutive morning, was not an employee of the company and although the witnesses for the defense state that he had failed to find work in the woods on the preceding day, the testimony of Cotton shows that the father, appellant here, was carrying a piece of wedge wood eighteen or twenty inches long in his hand, and that the son had a similar stick in his hand, though it is quite certain from this record that since the father was not engaged in logging operations he had no legitimate use for said wedge wood.

Witness Cotton shows that the two men got up and looked ahead to the spot where the Bolling brothers were due to get on the train, and that Curtis Bruce jumped off while the train was still in motion, followed immediately by his father, the appellant here, and that neither of them said a word, but that Curtis took two or three steps and raising the wedge wood club in his hand, struck Pearlie Bolling on the side of the head when the deceased was not even looking, and felling him instantly to the ground, fracturing his skull and causing the formation of a blood clot from which the victim died that night without ever regaining consciousness.

Eyewitnesses testifying for the state, swore that Curtis Bruce jumped off of the train while the train was still in motion, followed immediately by his father, each armed with a heavy club, and that they rushed toward the Bolling brothers who, according to the witnesses for the state, made no hostile move whatever.

It is submitted that this testimony as to the action of the two men, the appellant and his son, indicates that they were engaged in a joint undertaking. Nor is this changed by the fact that the appellant here did not strike at the deceased, but at his brother Homer, nor is this material so long as the attack was part of a pre-arranged plan, since under these circumstances the father, appellant here, is responsible for the fatal blow struck by his son.

The court's attention is now called...