Character v. State, 38042
| Decision Date | 11 June 1951 |
| Docket Number | No. 38042,38042 |
| Citation | 212 Miss. 30,53 So.2d 41 |
| Parties | CHARACTER v. STATE. |
| Court | Mississippi Supreme Court |
Dyer & Campbell, Greenville, for appellant.
J. P. Coleman, Atty. Gen., by Geo. H. Ethridge, Asst. Atty. Gen., for appellee.
Appellant, with two others, was indicted for the murder of James Washington. He was separately tried and convicted of manslaughter. All the parties are Negroes. The death of deceased was effected by a knife wound in the head which was inflicted at a point near the intersection of Percy and Starling Streets in the City of Greenville where a number of Negroes had assembled, on the night of Labor Day in September 1931. Appellant escaped that night and was not apprehended and brought to trial until 1949.
According to the evidence for the prosecution deceased was on the street and doing nothing to provoke a difficulty and appellant ran up to him and struck him and started away as deceased went down to his knees; another Negro ran to deceased and exclaimed in a loud voice 'Lord, Albert, you done cut this boy.' The first assignment of error in the action of the court in overruling appellant's objection to this statement. The proof for the state is that the statement was made in a loud voice and within the hearing of appellant, and that appellant did not deny the accusation or make any response thereto, but fled from the scene. The rule is that where, on being accused of crime, with full liberty to speak, one remains silent, his failure to reply or deny is relevant as tending to show his guilt, and the accusatory or incriminating statement is admissible, not as evidence of the truth of the facts stated, but to show accused's admission by silence. Silence alone, however, raises no legal presumption of guilt, and is not an equivalent to an admission of guilt, but its effect is for the jury and in connection with other facts and circumstances they may infer that the accused is guilty. When it is shown that the accused was in a position to hear the accusation, the question whether he did in fact hear it is for determination by the jury. 22 C.J.S., Criminal Law, Sec. 734, pp. 1258-1261; Anderson v. State 171 Miss. 41, 47, 156 So. 645; Page v. State, 208 Miss. 347, 358, 44 So.2d 459; Thurmond v. State, Miss., 53 So.2d 44. We conclude, therefore, that there was no error in the admission of the statement.
The second assignment of error is directed against the granting of two instructions for the State. One told the jury that if they believe from the evidence beyond a reasonable doubt that the deceased was killed unlawfully, wilfully, feloniously, and with malice aforethought without authority of law, and that the defendant was present and unlawfully, wilfully and feloniously and with malice aforethought aided, assisted, and encouraged such killings, then the defendant is guilty of murder even though the jury may not believe from the evidence that the defendant actually struck the blow that resulted in the death of James Washington. The other instruction told the jury that if they believe from the evidence beyond a reasonable doubt that the deceased was killed with a deadly weapon without malice in the heat of passion without authority of law and not in necessary self-defense, and that the defendant was present and feloniously and without malice and without authority of law, and not in necessary self-defense, but in the heat of passion, aided, assisted and encouraged such killing, then the defendant is guilty of manslaughter, even though the jury may not believe from the evidence that the defendant actually struck the blow that resulted in the death of James Washington. In view of the fact that there had just been an argument between the deceased and the two persons who are codefendants with appellant and that, according to the State's proof, appellant was present and suggested an attack upon deceased, we find no error in these instructions.
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