Chism v. State

• Decision Date: 24 April 1893
• Citation: 70 Miss. 742,12 So. 852
• Court: Mississippi Supreme Court
• Parties: PRICE CHISM v. THE STATE

12 So. 852

70 Miss. 742

PRICE CHISM v. THE STATE

Supreme Court of Mississippi

April 24, 1893

FROM the circuit court of Union county, HON. EUGENE JOHNSON Judge.

Appellant was convicted of the murder of one Brice Adair. The opinion states the case.

Mitchell & Blair, for appellant,

Filed a lengthy brief discussing different assignments of error, and as to the questions passed upon by the court, making the following points:

1. It is common learning that the acts and declarations of a conspirator are not admissible against a co-conspirator after the execution of the conspiracy. This rule was violated in this case repeatedly. For a single violation, the judgment was reversed in the case of Simmons v. State, 61 Miss. 243.

2. We desire to call the attention of the court, in particular, to one violation of a rule of evidence in this case. As to the body of Luke Chism having been carried home, the witness, Tom Prather, was improperly allowed to state that John Palmer called him out and told him if he repeated what he had said he would kill him. The same objection applies to the acts and declarations of Aiken, Bulus Prather and others. In no view was this admissible.

3. The error relating to the examination of D. R. Cox is so gross and shows such a plain violation of every fair and just mode of examining witnesses and conducting a prosecution, that we think it hardly necessary to argue it. Sometimes a party is allowed to impeach his own witnesses, but there must be a foundation for it. Moore v. Railroad Co., 59 Miss 243; Dunlap v. Richardson, 63 Ib., 447.

The court allowed counsel for the state to introduce and reject testimony arbitrarily, to suit their fancy. The objections of the defense were overruled, and then, in some instances, after the testimony had worked its ruinous effect on the minds of the jury, it was excluded by the court on the mere suggestion of the state's counsel. The record does not contain even a suggestion that counsel for the state was misled. After being permitted to lay the foundation to contradict, they not only made no effort to do so, but suggested that the testimony be excluded, thus, it seems to us, confessing that the real purpose was not to contradict, but to prejudice the jury against the witnesses and the defendant. The real question here is, not whether such examination can be allowed for the purpose of contradicting where counsel calling the witness has been misled, but whether it may be done for effect, when there is nothing to show that counsel had been entrapped. It will be observed that contradiction was not pretended or sought for in several of the questions.

4. The different rulings on the question as to the examination of witnesses, and the admissibility of testimony, were exceedingly important to the appellant. No conclusive case was made against him. In a moment of great excitement, in the night, Mrs. Adair and her son claim that they recognized appellant, though they say he was covered from head to foot. It is morally certain that, even under ordinary circumstances, this could not have been done. Mrs. Adair claims that she recognized the parties from their peculiar motions, and Luther Adair says he recognized them from their voices and motions. Neither explains the peculiar motions. As the evidence of identity is so unsatisfactory, and the charge against appellant is so dependent upon circumstantial testimony, the admission of incompetent testimony and the improper conduct of the case became matters of vital importance to the accused. It looks very much to us like the verdict is contrary to the evidence. If it was about balanced, and not entirely satisfactory, almost any error may have turned the scales against the defendant.

Judgment reversed and new trial awarded.

J. D. Fontaine, on the same side.

Frank Johnston, attorney-general, for the state.

It is objected that it was error to permit Thomas Prather to testify that John Palmer and others brought Luke Chism to his house on the night of the homicide, and, further, that John Palmer threatened to kill him if he disclosed the fact. It is argued that this testimony is inadmissible, for the reason that the declarations of the conspirators, made after the crime, are incompetent. This cannot be classed as declarations or conduct after the accomplishment of the conspiracy. The acts and declarations of the conspirators in carrying Luke Chism to his home, and attempting to conceal the evidence of their crime, and to suppress the testimony of Prather and wife, are part of the res gestoe. The scene at Luke Chism's house immediately after the killing was but the sequel to the crime. The conspirators did not separate, and were engaged in a common design of concealing their crime.

These persons, by aiding Luke Chism in suppressing evidence of the crime, were accessories after the fact. The second crime followed fast upon the first, and was its logical sequel.

The threat made by Palmer to the witness, Prather, was not a declaration of a conspirator after the abandonment of the crime. The conspirators were then engaged in the common design of concealing their crime by getting Luke Chism away from the scene of the homicide, and in concealing the fact that he had been shot at Adair's house. Whatever was done or said by any of the parties at Luke Chism's house in furtherance of the common design was admissible and within the elementary rule. The conduct of Palmer in threatening Prather was a verbal act in the common design of concealing the crime. Read v. State, 20 Ga. 681. This was not a declaration of the conspirator, Palmer, in regard to the facts of the crime, but it was a verbal act contemporaneous with and forming a part of the design to efface the evidence of the crime, a purpose in which the accused was then engaged.

Finally, I submit that the conduct of Palmer, testified to by Prather, who testified to the same conduct on the part of the accused in attempting to suppress testimony, was immaterial, and did not prejudice the defendant. If the witness was believed, then it was true that the accused threatened him in case of disclosure, and the point was no stronger against him that somebody else did the same thing. The court will not reverse for non-prejudicial error. 3 Smed. & M., 42; 12 Ib., 161; College v. McIntosh, 37 Miss. 671.

But the evidence was perfectly competent as part of the res gestoe. Browning v. State, 30 Miss. 656. The principle of that case clearly embraces the acts and declaration of the conspirators while engaged in a common design of concealing evidence of the crime immediately after its commission.

There are two answers to the objection in respect to the questions propounded to the witness, D. R. Cox. In the first place, the questions were not improper. In the next place, the court, immediately after permitting the questions to be asked, excluded the testimony.

It is competent for a party to prove that a witness whom he has called, and whose testimony is unfavorable, had previously made a different statement. 1 Greenleaf's Ev., §§ 44, 44a and note. Melhuish v. Collier, 15 Q. B., 878.

It is manifest, from the admission of the witness, that the state's attorney was taken by surprise. The witness had been before the grand jury, where he had testified to material facts for the state. The district attorney had a right to presume that he would again testify to these facts. It was not necessary for him to inform the court that he was surprised; that he was surprised manifestly appears. The witness was not impeached, either by assailment of his general character or by independent proof that he had made different statements. His former statements were not to be taken as independent testimony, nor did he stand as impeached in general character.

But there was nothing prejudicial in the action of the court, for it immediately excluded the questions and answers. It is impossible to perceive how the defendant was prejudiced in the slightest degree.

On the whole case, I confidently submit that justice has been done; that the verdict is abundantly sustained by the evidence, and that there is little or no reason to believe that a different result would ensue upon a second trial.

OPINION

COOPER, J.

On the night of July 7, 1892, at about one or two o'clock, a party of six or more men appeared at the residence of Brice Adair. They surrounded the house and demanded admittance, saying they were officers of the law with a warrant for the arrest of Luther Adair, a son of Brice Adair. Brice and Luther Adair, suspecting the purpose of the men, refused to open the door, and seized their arms. The front door was broken open by two of the men, who were enveloped in a white covering, and wore white cloth masks upon their faces which wholly concealed their features. Immediately one of them struck a match, which failed to burn. The other one then struck another, and at the same instant his companion fired upon Brice Adair, inflicting a fatal wound, from which he soon afterwards died. The murderer instantly fired again, missing his victim. Luther Adair, about this time, fired upon the other man, who staggered back and fell, rose to his feet, and fell again, and was then carried from the premises by his companions, who soon afterwards retreated from the scene.

The neighbors were soon informed of the horrible occurrence, and many of them appeared at the residence of Adair. A search of the premises discovered a loaded and cocked pistol, dropped by some one of the assailants, and a bloody mask, with a bullet hole on the part of it which would be over the left side of the chin of one wearing the mask. A pool of blood was found at the spot where the man fired on by Luther Adair first fell, and another at the place where h...