Collins v. State

• Decision Date: 14 November 1927
• Docket Number: 26574
• Citation: 114 So. 480,148 Miss. 250
• Court: Mississippi Supreme Court
• Parties: COLLINS v. STATE. [*]

114 So. 480

148 Miss. 250

COLLINS v. STATE. ^[*]

No. 26574

Supreme Court of Mississippi

November 14, 1927

On Motion to Amend Judgment Nov. 28, 1927.

(In Banc.)

1 CRIMINAL. LAW. Where state introduces evidence of defendant's statements, made immediately after homicide defendant may bring out whole of defendant's statement.

Where state introduces evidence of statements made by defendant immediately after homicide, defendant is entitled to bring out on cross-examination of state's witnesses, or by other witnesses who were present, if necessary, the whole of defendant's statement.

2. CRIMINAL, LAW. Where state introduced evidence that defendent admitted homicide shortly thereafter, excluding on cross-examination evidence of defendant's whole statement held prejudicial error.

In murder prosecution, where state introduced evidence that shortly after homicide defendant admitted to witness that he had killed deceased, refusal to permit defendant on cross-examination of state's witness to bring out whole statement made to him held prejudicial error denying defendant substantial right where balance of statement, if true, showed that defendant killed deceased to self-defense.

ON MOTION TO AMEND JUDGMENT.

3. CRIMINAL LAW. Accused held not entitled to final discharge because on new murder trial state's witness would testify he shot in self-defense.

Where trial court improperly refused to permit cross-examination of state's witness, who testified that accused had told him shortly, after homicide, that he kille deceased, so as to bring-out accused's whole statement, showing he shot in self-defense, accused held not entitled to final discharge on appeal because, on new trial states's witness would be compelled to give whole statement showing he shot in self-defense, since jury would not be compelled to believe whole statement.

On Motion to Amend Judgment Nov. 28, 1927.

APPEAL from circuit court of Madison county.

HON. W. H. POTTER, Judge.

Henry Collins was convicted of murder, and he appeals. Reversed and remanded.

Reversed and remanded. Motion to amend judgment overruled.

W. H. & Robt. H. Powell, for appellant.

The peremptory instruction requested by defendant should have been given. Strahan v. State, 108 So. 502. It was fatal error to allow Martz to repeat only that part of the statement made to him by defendant, "I killed Will Foster." Flowers v. State, 85 Miss. 598.

Let us illustrate by the Holy Bible, how important it is that if a portion of a statement is admitted into evidence, the whole statement should be admitted. In 2nd Kings, Chapter 5, Verse 15, Naaman said, inter alia: "Behold now I know that there is no God in all the Earth." Now if Naaman is cut off here, and is not permitted to finish his statement he will be adjudged an atheist; but if permitted to complete his statement, we find that the above is explained by his further statement, "but in Israel" and the former judgment based upon only a part of his statement, that he was an atheist, will be reversed and he will be accounted a believer in God.

Now the court below, permitted Martz to repeat only that part of the statement made by Henry Collins, "I killed Will Foster," and denied him the right to retail the full statement: "and thereby Henry Collins was adjudged by the jury to be a murderer." Whereas if he had been allowed to repeat the full statement which was, "I killed Will Foster in self-defense as he was about to draw his pistol to kill me," then he would have been adjudged by the jury, on the motion to strike the evidence, an innocent man, but if not wholly innocent of any crime, certainly not guilty of more than manslaughter on the evidence of the state up to the close of the case by the state.

The whole statement made by Henry Collins to Martz should have gone to the jury or none of it, as it was a verbal act and not a self-serving declaration, admission or confession. The whole statement was made together, contemporaneously, not more than thirty minutes after the homicide, and if the deserving portion was competent, the self-serving portion was competent under the facts of this case.

If it was not a part of the res gestae, it was in the nature of a verbal act; and this being a case of purely circumstantial evidence and a very doubtful one at that, it was highly prejudicial to the appellant for the court to allow the case to go to the jury on the evidence introduced by the state, at least on that portion as to murder. Baker v. Kelley, 41 Miss. 702; 10 R. C. L. page 976, sec. 150; 95 A. D. 68 note.

Declarations of a party are admissible in evidence in his favor when connected with the principal fact under investigation, or when the question at issue is the intention of the party. Young v. Power, 41 Miss. 197; House v. Harden, 52 Miss. 875, and 876.

Where a part of a declaration or conversation is admitted against a party, he may show the rest of it to explain its effect. Rone v. Whited, 82 Am. Dec. 342-345; People v. Vernon, 35 Cal. 49; 1 Greenleaf Evidence, sec. 108; Mitchum v. State, 11 Ga. 615.

While it is optional with the defendant to testify or not, yet in a certain sense he was deprived of this option by refusal of the lower court to allow Martz to give the reasons assigned by defendant for the killing. If that refusal had not occurred, the defendant would not have testified at all because his explanation would have exonerated him. But he was compelled to testify on the stand in order to explain, there, the cause of the homicide, when the cause of the homicide would have been explained by Martz, if he had been permitted to repeat the explanation made to him by defendant.

When the state only allowed him to repeat, "I killed Will Foster," then upon that alone a presumption of malice would have arisen, and when the court would not allow Martz to explain the circumstances, the defendant was compelled to explain on the witness stand, because you have held in Hawthorne v. State, 58 Miss. 778, that when it is shown that one killed another with a deadly weapon, the general presumption of innocence yields to the specific proof, and the law infers that the killing if unexplained was malicious and therefore murder; but if the attendant circumstances be shown in evidence by the state or the accused, the character of the killing is to be determined by considering them. Godwin v. State, 73 Miss. 882.

"Where a part of a declarement or statement is used, as self-harming evidence against a party, he has a right to have the whole of it laid before the jury who may then consider and attach what weight they see fit, to any self-serving statements it contains." Jones on Evidence (2 Ed.), p. 366, sec. 293 (295); Best on Evidence (10 Ed.), sec. 520, and the numerous cases cited. See, also, 1 Greenleaf Evidence (14 Ed.), sec. 170; 1 Am. & Eng. Ency. Law (2 Ed.), page 721, sec. 5, and cases cited under note 3.

"When a defendant's confession is given in evidence, he is entitled to have submitted to the jury all that he said on the occasion, his exculpatory as well as inculpatory statement." 6 Am. & Eng. Law (2 Ed.), p. 574, sec. 2, and note 7, and the numerous citations thereunder, among which are two from our state, viz: Coon v. State, 13 S. & M. 246; McCann v. State, 13 S. & M. 471; 3 Am. & Eng. Ency Law (1 Ed.), p. 491, sec. 14, and the numerous cases in note 1.

As to sufficiency of evidence to show intention or deliberate design, see Jones v. State, 98 Miss. 902; Riley v. State, 109 Miss. 290. See, also, White v. State, 111 So. 864.

James W. Cassedy, Jr., Assistant Attorney-General, for the state.

The first error assigned and argued by counsel for appellant is the admissibility of certain statements made by appellant to the witness C. S. Martz, and the exclusion of other statements during the same conversation.

The attorney-general confesses that it was error as a general proposition to have allowed part of a conversation of appellant and witness to be brought out by the state and to exclude the balance of the conversation when offered or sought to be brought out by the appellant. 10 R. C. L., Evidence, sec. 101; 16 C. J., p. 571; Coon v. State, 13 S. & M. 246; McCann v. State, 13 S. & M. 499; Russell v. State, 53 Miss. 367; Bradston v. State, 68 Miss. 208; Scraggs v. State, 8 S. & M. 722.

Conceding that there has been an error made in the exclusion of the balance of this conversation, and leaving out of view the entire conversation between appellant and this witness, I herewith submit that there is enough evidence to make out the state's case without the admitted part of appellant's conversation.

The evidence shows the motive of the appellant and the "rung" shells found in appellant's room and the "rung" shell which was taken out of the deceased's body shows the premeditation of the appellant and connects the appellant with the shooting.

The statements made by the appellant to the witness Martz which were admitted in evidence on the state's behalf were brought out by the state clearly for the purpose of connecting the appellant with the shooting. These statements as brought out by the state could not be objectionable as would a confession which had not been qualified as being free and voluntary, and it is clear that it was not for the purpose of a confession that these statements were introduced, but only for the purpose of proving that the appellant actually did the shooting.

Had the state based its case upon the statements which were admitted in evidence and had the appellant then elected not to testify, there might be some question as to the error committed in excluding the balance of the conversation which was excluded. But where the statements were admitted for the purpose of connecting the appellant with the...