Cody v. State

• Court: Mississippi Supreme Court
• Writing for the Court: Ethridge, P. J.
• Citation: Cody v. State, 167 Miss. 150, 148 So. 627 (Miss. 1933)
• Decision Date: 05 June 1933
• Docket Number: 30442
• Parties: CODY et al. v. STATE

148 So. 627

167 Miss. 150

CODY et al. v. STATE

No. 30442

Supreme Court of Mississippi

June 5, 1933

Division B

Suggestion Of Error Overruled September 18, 1933.

APPEAL from circuit court of Monroe county HON. THOS. H. JOHNSON Judge.

John Cody and another were convicted of murder, and they appeal. Judgment affirmed.

Affirmed.

Leftwich & Tubb and Talmage B. Tubb, all of Aberdeen, for appellant.

It was error in the trial court to permit the witness Louchester Parrish to state to the jury that she had told the family and told the officers that she recognized the defendants as the persons who killed her husband and she was instructed not to talk to anybody about it except the officers and the family.

It is never permissible for a witness to state to the jury that he had told others out of the presence of the defendant the name of the person alleged to be guilty of the offense or that the witness had accused the defendant on trial as the guilty party.

A well-known rule was palpably violated, and that is the rule which we have already announced and which has no exceptions other than in cases of rape where the injured female is permitted to show that she made an outcry or complaint immediately afterward, and even in those cases she is not permitted to relate to the jury that she told others in making her outcry of complaint the name of the person who committed the assault.

Williams v. State, 31. So. 197, 79 Miss. 555; Ashford v. State, 33 So. 174, 81. Miss. 414; Jeffries v. State, 42 So. 801, 89 Miss. 643; Frost v. State, 47 So. 898, 94 Miss. 104; Moore v. State, 59 So. 3, 102 Miss. 149; Anderson v. State, 35 So. 202, 82 Miss. 784.

The trial court was in error in permitting the state to interpose the testimony of the witnesses, Oliver Sullivan, R. C. Brasfield, Bud Edgeworth, E. L. Puckett and Sheriff Grady as to certain alleged tracks or footprints found in the field and in the road and to take from these defendants their footwear and compare the same to the tracks.

The defendants registered a strong and vigorous objection against the admission of such testimony. It is extremely uncertain and there are so many elements of uncertainty about it that such testimony is always calculated to lead to the wrong result. It ought not to have been admitted.

Wharton's Criminal Evidence (9 Ed.), sec. 796; Jacob Spell v. State, 42 So. 238, 89 Miss. 663; Johns v. State, 95 So. 84, 130 Miss. 803; Herring v. State, 84 So. 699, 122 Miss. 647; Gambrell v. State, 46 So. 138, 92 Miss. 728.

The character of footprints leading to the scene of murder, and their correspondence with the defendant's feet, may be put in evidence in cases when the defendant's agency is disputed. Such evidence is not by itself of any independent strength, but is admissible with other proof as tending to make out a case.

Wharton's Criminal Evidence, section 796; Jacob Spell v. State, 89 Miss. 663; Herring v. State, 122 Miss. 647; Gambrell v. State, 46 So. 138, 92 Miss. 728.

This testimony in regard to the tracks ought to have been excluded on the objections made by the defendants for another reason which was apparent at the very threshold of the case, and that is, that the footwear of these defendants had been taken from their possession without any lawful authority so to do, and they were thereby made in effect to supply testimony against themselves contrary to the intent and spirit of the constitution, sections 23 and 26, against reasonable searches and seizures and against requiring the accused to testify or supply testimony against himself.

Henry Bridges v. State, 38 So. 679, 86 Miss. 377; Cofer v. State, 118 So. 613, 152 Miss. 761; Cofer v. United States (5 C. C. A.), 37 F.2d 677; Tucker v. State, 90 So. 845, 128 Miss. 211; Orick v. State, 105 So. 465, 140 Miss. 184.

The rule is well settled in this state that it is not competent to contradict or impeach a witness about an immaterial or collateral matter.

Cofer v. State, 158 Miss. 498; Williams v. State, 73 Miss. 820, 19 So. 826; Garner v. State, 76 Miss. 520, 25 So. 363; Jeffries v. State, 77 Miss. 760, 28 So. 948; Bell v. State (Miss.), 38 So. 795; Magness v. State, 106 Miss. 195, 63 So. 352; Ware v. State, 145 Miss. 247, 110 So. 503; Walker v. State, 151 Miss. 862, 119 So. 796.

This rule laid down by practically all of the authorities was most flagrantly violated by the learned counsel for the state in the cross-examination of Mrs. Trannie Gregory, wife of the accused.

Motion for the directed verdict should have been sustained.

Brown v. State, 121. So. 297, 153 Miss. 737; Butler v. State, 112 So. 685, 146 Miss. 505.

It was error in the court below to give instruction No. 2 for the state, as follows: "The court instructs the jury for the state that murder is the killing of a human being without the authority of law, by any means, or in any manner, when done with the deliberate design to effect the death of the person killed, and not in necessary self-defense; and if you believe from the evidence in this case beyond a reasonable doubt that either of the defendants, John Cody or Trannie Gregory so killed Jim Parrish, and that either one or the other was present and aided, abetted or assisted in said killing, or condoned or encouraged said killing in any manner, then you should find the defendants both guilty as charged and should return either of the following verdicts:" This charge is clearly and manifestly wrong. The use of the word "condoned" tells the jury in effect that even though one of these defendants alone actually killed Jim Parrish, and although the other defendant had nothing to do with it but "condoned" it, then the jury should convict him because he "condoned" it.

Furthermore, the use of this word "condoned" is in the past tense. The jury might conclude from the language and the use of this word, that even though one of the defendants was not present and did not aid, abet or assist in the killing; yet, if he afterward learned about it and "condoned" it, he was then just as guilty as the man who pulled the trigger and should be convicted.

The charge is clearly and manifestly erroneous.

Harper v. State, 83 Miss. 402; John Bruce v. State, 103 So. 133; Brown v. State, 115 So. 433, 149 Miss. 239; Crawford v. State, 97 So. 534, 133 Miss. 147.

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

A witness can testify to consistent statements made at the time of or shortly after the homicide, when such witness' testimony has been indirectly impeached by cross-examination by indirectly charging that he had made inconsistent statements prior to the trial. That is exactly what happened in this case.

28 R. C. L., sections 236, 237, 238 and 239.

It is a familiar rule of law that evidence acquired by a search as an incident to a lawful arrest is admissible.

Bird v. State, 154 Miss. 493, 122 So. 539; Watson v. State, 146 So. 122; Underwood v. State, 108 Miss. 34, 66 So. 285.

An officer having a prisoner under arrest, suspected of a crime, has the right, and it is his duty, to search him for weapons, means of escape, or evidence connecting him with the crime which has been committed; the evidence under such circumstances is lawfully obtained.

State v. Barela (N. M.), 168 P. 545, L. R. A. 1918B 844; State v. Griffin (S. C.), 124 S.E. 81, 35 A. L. R. 1227.

As to the cross-examination of Mrs. Trannie Gregory to which appellant refers, the only objection there that was overruled was a general objection and directed to the question of whether or not Mr. Currie stayed at the Gregory home from the time he was arrested until he got out on bond. There was absolutely no objection to the cross-examination of Mrs. Gregory, with reference to what she had said about John Cody trying for more than a year to get Trannie to help him do this job.

As to the one objection that was made, it being a general objection, no error can be assigned on the action of the court here.

Jackson v. State, 140 So. 683.

Argued orally by Talmage B. Tubb, for appellant, and by W. D. Conn, Jr., for the state.

OPINION

Ethridge, P. J.

The appellants were indicted, and convicted of the murder of one Jim Parrish, in Monroe county, Mississippi, and sentenced to life imprisonment, from which judgment they appeal here.

The evidence to sustain the conviction is that of the wife of Jim Parrish, Mrs. Luchester Parrish, who claimed to have recognized the voice of Trannie Gregory, and also to have seen both of them. The killing occurred about one o'clock at night.

The testimony of Mrs. Luchester Parrish was to the effect that she was awakened by her husband while he was fumbling for a match box on the mantel; that shortly after she was awakened her husband called out and asked if the parties did not need a lantern, and the voice of Trannie Gregory answered that matches would be sufficient. She states that her husband stepped out on the porch and asked who it was, and that she heard Gregory's voice answer, "By God, it's Trannie Gregory and John Cody;" that two guns were then fired, and that her husband fell, and that she opened the door and stepped out on the gallery, and that John Cody and Trannie Gregory were within six or eight feet of her and had their guns pointed at her, but did not shoot or undertake to harm her; that they went from the house to the road under a tree and she recognized both parties; that John Cody had on red boots, and Trannie Gregory did not have on boots or high-top shoes.

The sufficiency of this testimony is challenged because it is alleged the night was shown to be dark, it having rained the preceding afternoon, and the early part of the night was cloudy.

The testimony of Mrs. Luchester Parrish was to the effect also that she and her husband had been...