Carter v. State

• Decision Date: 06 February 1933
• Docket Number: 30073
• Court: Mississippi Supreme Court
• Parties: CARTER et at. v. STATE

145 So. 739

167 Miss. 331

CARTER et at. v. STATE

No. 30073

Supreme Court of Mississippi

February 6, 1933

Division A

Suggestion Of Error Overruled March 6, 1933.

Appeal from the circuit court of Marion county, HON. J. Q. LANGSTON Judge.

Fred Carter and another were convicted of manslaughter, and they appeal. Affirmed.

Affirmed.

T. B. Davis, of Columbia, for appellants.

The court below, we think, committed reversible error in refusing to admit the testimony that these appellants had carried the wife of the deceased before the grand jury and obtained an indictment against him. So far as I have been able to find it is universally held that such evidence is always competent to show motive especially where such is followed by continual threats and the defense is that of self-defense as in this case.

Bird v. State (Ala.), 95 So. 655; Grimsley v. State, 101 So. 156; Bonner et al. v. State (La.), 65 So. 663; Rains v. State (Ala.), 7 So. 315; Carden v. State, 4 So. 823; Hays v. State (Ala.), 63 So. 7; Jones v. State (Ala.), 6 So. 434; 30 C. J. 182, 184; 13 R. C. L. 910, Sec. 214; Sparks v. Com., 193 Ky. 180, 235 S.W. 767; 30 C. J. 183; 112 Mich. 291, 70 N.W. 577; Bateman v. State, 64 Miss. 233; State v. Reed, 42 Miss. 323; Gillum v. state, 62 Miss. 547; Ouidas v. State, 78 Miss. 622, 29 So. 525; Nickerson v. State (Ala.), 88 So. 905; Bishop v. State (Ala.), 61 So. 820.

Continuous threats made by the prisoner against deceased, continuing for several months down to within three weeks of the homicide, were properly admitted in evidence.

Hodge v. State (Fla.), 7 So. 593; Pullman v. State (Ala.), 6 So. 839; Smith v. State (Fla.), 37 So. 573; Underwood v. State, 60 So. 842.

After the jury had returned a verdict of manslaughter, these appellants made a motion to set aside the verdict of the jury and the judgment of the court and assigned among other reasons therefor, that two of the jurors, T. L. Loften and C. F. Prine who were accepted to try the case had prejudged the case and had fixed opinions on their mind which was to the effect that the defendants should be convicted, whereas both of them on their voir dire had answered to the contrary and that these appellants and their attorney did not know of such prejudice and fixed opinion when they accepted them but relied on the answers they made on their voir dire. This motion was sworn to by both the appellants and evidence was taken on the motion which motion was overruled.

If the opinion has been engendered from personal knowledge or from hearing the witness on a former trial, although the juror may disclaim that it would influence his verdict, and claim that he was unbiased and free to be governed by the testimony on the trial, such person is not indifferent.

Logan v. State, 50 Miss. 269; Sheppric v. State, 31 So. 416, 79 Miss. 740.

A juror in a criminal case who before the trial heard all the facts in the case from an eyewitness whom he regarded truthful, whose statement he believes and on them had formed a fixed opinion is incompetent under the Constitution of 1890, section 30, securing a trial by an impartial jury.

Klyce v. State, 79 Miss. 652, 31 So. 339; Langston v. State, 129 Miss. 394.

Section 1528, Code of 1930, modifies the common law rule, so that husband and wife may testify against each other in all controversies between themselves, moreover the common law rule recognized the right of a wife to testify against the husband in cases of assault and battery committed upon her. Again in order that matters and things existing between husband and wife may be privileged, they must have come from one to the other in confidence and by virtue of their marriage relations.

The case of McRae v. State, reported in 104 Miss., page 861, 61 So. 977, is a case where McRae, the husband, was charged with vagrancy and the court held that since it was the legal duty of the husband to support the wife and family and that since his being a vagrant violated that duty and the statute law, that his wife was a competent witness against him, his offense really being a controversy between themselves.

It may be laid down as a general rule that to make a communication between husband and wife privileged, it must be confidential in its nature, or at least obviously of different character. And though there is some dissent, the better rule would seem to be that ordinary conversations between husband and wife on matters of business, not confidential in their nature, nor induced by marital relation, are not privileged. Certainly this is true as a transaction between the two of them.

28 R. C. L. 527.

I have never heard it said that a man in this enlightened age could call his wife into a private apartment, strip her clothes from her body, beat her into insensibility, then she flee into the arms of the only protection she has, and call this confidential relationship. I don't think the law ever contemplated that such relationship should ever be confidential. If she is entitled to protection she is entitled to go into the courts and she is entitled to lean upon the strong arms of her brothers. Not only the law of the land, but the moral law and every law known to man gives these brothers the right to protect her.

40 Cyc. 2354.

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

In my opinion, the case should be decided in the light of Thompson v. State, 84 Miss. 758, which held: "The court ought not to have permitted the details of the previous difficulty to be shown in evidence, nor the falling out between the accused and his wife and her family, nor the reason of that falling out, nor the conduct of Mrs. McGraw in making two or three trips to Thompson's home to bring her daughter away. All this testimony should have been excluded as foreign to the issue which the jury was trying."

There is no element present in the case at bar which would go to show the depth of the deceased's enmity toward these appellants, other than the threats that were actually made. Outside of the threats there is no evidence of any fact that would throw direct light on the extent of his feelings toward appellants, which appellants have not gotten the benefit of.

The two jurors who were brought in question took the witness stand and swore positively and unequivocally that they had not prejudged the case and that they had not formed or expressed any opinion with reference to the guilt or innocence of these appellants prior to their acceptance on the panel.

In my opinion, the law relating to the qualifications of jurors on their voir dire examination ought to apply here as the examination of these jurors show that they were qualified under the law to serve as jurors in this case.

Samuels v. State, 120 So. 920.

To my way of thinking, there is no conflict in the evidence given in support of this motion on the question of prejudgment. But, even if there were such conflict, the holding of the trial judge would not be disturbed where his judgment is manifestly not against the evidence offered in support of such motion.

Queen v. State, 120 So. 838.

In addition to this, the motion for a new trial, setting up this prejudgment is supported by an affidavit of the appellants alone. The rule seems to be in this state of the case that the motion must be supported by the affidavit of both appellants and their attorneys. Otherwise, error in overruling such motion will not be considered by this court.

Salmon v. State, 118 So. 610; Grady v. State, 130 So. 117; Long v. State, 141 So. 591.

Argued orally by T. B. Davis, for appellant, and by W. D. Conn, Jr., for the state.

OPINION

McGowen, J.

Appellants, Fred and Murray Carter, together with their father, J. W. V. Carter, were indicted for murder in the killing of Robert McCain. Fred and Murray Carter were brothers, and Robert McCain was their brother-in-law, having married their sister. A severance was granted the father, and the two brothers, the appellants, were jointly tried, convicted by the jury of manslaughter, and sentenced by the court to serve a term of fifteen years in the state penitentiary. The parties to the difficulty lived in the Kokomo neighborhood some distance from Columbia, Mississippi. On the afternoon of the killing, the Carter and McCain families had an altercation, the details of which do not disclose just what caused it, and the parties were separated without injury on either side. During that afternoon there was considerable traveling on the road west toward Kokomo in their automobiles by the Carters and the McCains. Late in the afternoon, McCain, the deceased, accompanied by his children and friends drove towards Kokomo, passing the Carters in their car. While passing the latter car, some one in it shouted something to the McCains. What was said the record does not disclose. The Carters drove a short distance and stopped, the McCains, coming up in a little while, stopped within a few feet, and both parties got out of their cars. The Carters, father and sons, according to the state's evidence, held their guns upon McCain. In a short time, several members of both contending families assembled there. The state's evidence tends to show that Fred Carter, at a time when McCain, the deceased, was standing within a few feet of the Carters, who, as stated above, held their guns on him raised his gun and shot McCain at a time when no overt act of any kind was shown on the part of the deceased. The record discloses that they stood in this situation for some time, that finally a brother of Robert McCain, the deceased, came up and was requested by McCain to notify the sheriff of his situation, which we have already described, and that he left to do this.

The defense was to the effect that McCain, the deceased, cursed and...