Cates v. State

• Decision Date: 22 October 1934
• Docket Number: 30982
• Citation: 157 So. 95,171 Miss. 106
• Court: Mississippi Supreme Court
• Parties: CATES v. STATE

157 So. 95

171 Miss. 106

CATES v. STATE

No. 30982

Supreme Court of Mississippi

October 22, 1934

(In Banc.)

1. CRIMINAL LAW.

Where facts are conflicting, party producing expert may state facts in hypothetical question in accordance with his theory, but is not authorized to omit undisputed material evidence bearing on issue and calculated to influence decision.

2. CRIMINAL LAW.

Undisputed testimony, though produced by defendant in criminal case cannot be ignored in framing hypothetical questions as to defendant's sanity.

3. CRIMINAL LAW.

In murder prosecution defended on ground that defendant was insane, admission of hypothetical questions respecting defendant's sanity held error, where such questions omitted all evidence tending to establish insanity.

4. CRIMINAL LAW.

In murder prosecution defended on ground of insanity, objections to hypothetical questions pointing out that questions did not contain all material facts in evidence held sufficient to raise question of omission of all evidence tending to establish insanity.

GRIFFITH J., and SMITH, C. J., dissenting.

HON. D M. ANDERSON, Judge.

APPEAL from the circuit court of Neshoba county HON. D. M. ANDERSON, Judge.

Prince Cates was convicted of murder, and he appeals. Reversed and remanded.

Reversed and remanded.

Richardson & Sandford and Dees Stribling, all of Philadelphia, and M. V. B. Miller, of Meridian, for appellant.

The verdict was contrary to the overwhelming weight of the evidence.

Byrd v. State, 123 So. 867; Brown v. State, 121 So. 297; Lefere v. Krohn, 127 Miss. 305, 90 So. 12.

The court erred in permitting answers to hypothetical questions.

People v. Vanderhoof, 39 N.W. 28; Earl v. State, 38 So. 288.

It is manifest that the district attorney included in his questions only such detached and isolated facts, which standing alone and unexplained showed malice and premeditation, mental calmness and alertness, and intentionally and deliberately left out all undisputed facts that even hinted at abnormal mental conditions or insanity, and it would be a mockery for this court to permit this appellant to be hanged on opinions from questions of this kind.

The questions were improper for another reason. The questions called for answers that would necessarily be an invasion of the jury's province.

State v. Brown, 79 S.W. 1116.

A confession made to a judicial officer is incompetent unless it was made after the accused was advised that the confession would be used against him. In this case it was not done, but a confession was sought and wrung from a man that was shot to pieces, under the influence of morphine, and, we think, insane, and it was error to admit the confession.

Stepney v. City of Columbia, 127 So. 688.

Over the objection of appellant the district attorney was permitted to show by a state's witness that appellant was drunk on Sunday before the shooting on Monday and was staggering around the streets of Burnside. This kind of testimony was clearly incompetent.

Nelson v. State, 92. So. 69.

J. B. Hillman, of Philadelphia, and Howie & Howie, of Jackson, for appellee.

A man is not to be excused from responsibility, if he has reason and capacity sufficient to enable him to distinguish between right and wrong, as to the particular act he is then doing--a knowledge and consciousness that the act he is doing is wrong and criminal, and will subject him to punishment.

Bovard v. State, 30 Miss. 600; Smith v. State, 95 Miss. 786, 49 So. 945; Hoye v. State, 152 So. 644; Eatman v. State, 153 So. 381; Cunningham v. State, 56 Miss. 269.

If emotional insanity were recognized in this state every person who got angry and slew his fellow human being would be excusable. Therefore, the rules laid down by our courts repeatedly have limited insanity defense to whether or not the defendant, at the time the act is committed, knew right from wrong.

When a defense of insanity is made every act of the defendant may be properly considered by the jury in passing upon the question of insanity or sanity at the time of the commission of the deed.

Elmore v. State, 108 So. 722; Wallace v. State, 108 So. 810.

In this case there is a great conflict of evidence, and the jury was justified under the evidence in the case in saying that the appellant, at the time he killed Bob Cooper, knew right from wrong, and was responsible for his conduct.

Weatherford v. State, 143 So. 855.

We take it that the defense are not seriously contending that the doctors summoned by the state, to-wit: Drs. Sheffield, Hickman and Cleveland, should have been excluded from the court during the taking of the testimony.

Smith v. State, 49 So. 945.

The purpose of the hypothetical question propounded to the expert is to give the jury the benefit of expert knowledge in passing upon the acts and conduct of one who pleads insanity as a defense to a crime.

Prewitt v. State, 63 So. 332.

It is true the defense objected to the questions, but their objection was general, there was nothing stated in the objection to show the court any reason why the objection should be sustained.

The county attorney, deputy sheriff and jailer are not within the exception of person, or persons, holding a judicial position.

Donahue v. State, 107 So. 15; Carothers v. State, 83 So. 809.

We cannot conceive how there could be any difference between moral right and moral wrong and the simple right and wrong.

Smith v. State, 49 So. 945; Nelson v. State, 92 So. 66; Eatman v. State, 152 So. 381.

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

In Justice v. State, 154 So. 265, it was held that unless and until a motion for a new trial has been filed, setting up the ground that the verdict is contrary to the weight of the evidence, this court will not entertain such a contention here for the first time.

The testimony on the proposition of insanity is directly conflicting and in such a case a conviction would not be disturbed.

Elmore v. State, 143. Miss. 318, 108 So. 722; Wallace v. State, 143 Miss. 438, 108 So. 810; Weatherford v. State, 164 Miss. 188, 143 So. 853.

The usual and proper method of examining an expert where it is sought to obtain his opinion is to propound to him a hypothetical question, i. e., one which assumes the truth of facts which the evidence tends to support and which are stated in accordance with the theory of the examiner.

Prewitt v. State, 106 Miss. 82, 63 So. 330.

An objection to testimony must be specific and point out the infirmity in it. Otherwise, it is not sufficient upon which to base error.

Jackson v. State, 163 Miss. 235, 140 So. 683; Boatwright v. State, 143 Miss. 676, 109 So. 710; Wampold v. State, 155 So. 350.

When the confession was offered, its competency was determined by a preliminary inquiry. This preliminary qualifying proof demonstrated that the statement was free and voluntary and not as the product of threats, promises, coercion, or the like thereof.

Simon v. State, 36 Miss. 636; Dick v. State, 30 Miss. 598.

A county attorney has no "judicial authority" any more than a sheriff or other law enforcement officer.

Donahue v. State, 142 Miss. 20, 107 So. 15; Brown v. State, 142 Miss. 335, 107 So. 373; Carothers v. State, 121 Miss. 762, 83 So. 809; Thomas v. State, 124 So. 766; Jackson v. State, 163 Miss. 235, 140 So. 683; Nichols v. State, 145 So. 903; Watson v. State, 146 So. 122.

Where the defense is insanity, general or partial, the door is thrown wide open for the admission of evidence; every act of the party's life is relevant to the issue and admissible in evidence.

State v. Jones, 50 N.H. 369, 9 Am. Rep. 242; Smith v. State, 95 Miss. 786, 49 So. 945; Elmore v. State, 143 Miss. 318, 108 So. 722.

On the question of the proper test for determining criminal liability, the instructions for the state lay down the proposition that the test of criminal responsibility is the ability of the accused, at the time he committed the act, of realizing and appreciating the difference between right and wrong. This is the true test as established by cases on this subject.

Cole v. State, 150 So. 757; Eatman v. State, 153 So. 381; Smith v. State, 95 Miss. 786, 49 So. 945; Nelson v. State, 129 Miss. 299, 92 So. 66; Hoye v. State, 152, So. 644; Grissom v. State, 62 Miss. 167; Long v. State, 141 So. 591.

Argued orally by M. V. B. Miller, for appellant, and by J. H. Howie and W. D. Conn, Jr., for the state.

Ethridge, J., Griffith, J., dissenting. Chief Justice Smith authorizes me to say that he joins in this dissent.

OPINION

Ethridge, J.

Prince Cates was indicted, tried, and convicted of the murder of Bob Cooper in the circuit court of Neshoba county, Mississippi, and sentenced to death.

The immediate circumstances connected with the killing and leading thereto were that on the day before the killing Sunday, Mr. Cooper took his gun and shot several times at cows which were trying to break into his cornfield, and some of the shots reached the house of the appellant and struck appellant's little child, inflicting burns or marks, but without penetrating the flesh. Mrs. Cates testified that she asked Mr. Cooper about the matter, and that he replied that he did not give a damn, or words to that effect, and that the child ought to have been in the house. At the time of this shooting, Prince Cates was away from home, either fishing or hunting, and, on returning that afternoon, the little child told him about her being shot, as she expressed it. Cates then asked his wife, the child's mother, if the child was correct about it, and she told him about the whole incident, which disturbed him very greatly, and she said he wept and prayed during the night as to what he should do to protect his family, and it...