Conway v. State

• Decision Date: 07 December 1936
• Docket Number: 32444
• Citation: 177 Miss. 461,171 So. 16
• Court: Mississippi Supreme Court
• Parties: CONWAY v. STATE

171 So. 16

177 Miss. 461

CONWAY v. STATE

No. 32444

Supreme Court of Mississippi

December 7, 1936

Division B

(Division B)

1 HOMICIDE.

Dying declarations of decedent that defendant had murdered him held properly admitted, where evidence showed or tended to show that decedent was mortally wounded and realized it and that he was in extremis.

2 HOMICIDE.

Admission of testimony of witness as to dying declarations of deceased after qualifying evidence has been given before court but without its being repeated before jury is error, since jury must have opportunity to pass on credibility and weight of dying declarations.

3 HOMICIDE.

Admission of testimony of witness as to dying declarations of deceased after qualifying evidence had been given before court but without its being repeated before jury, held harmless where other witnesses whose evidence was undisputed showed that declarations were made in extremis.

4. HOMICIDE.

In murder prosecution of defendant for shooting his brother-in-law, evidence held insufficient to sustain conviction of manslaughter despite dying declaration of brother-in-law accusing defendant, where testimony of eyewitnesses made out a case of self-defense (Code 1930, sec. 592).

5. HOMIOIDE.

Dying declarations are species of "hearsay evidence admitted for reasons of public necessity after state has proven that they were made by deceased under sense of impending death and after all hopes of recovery had passed.

6. HOMICIDE.

Dying declarations should be admitted with caution and weighed by jury with greatest deliberation.

7. CRIMINAL LAW.

Trial or appellate court is rarely justified in setting up its judgment against that of jury on an issue of fact, but should do so in a proper case (Code 1930;, sec. 592).

HON. W. J. PACK, Judge.

APPEAL from the circuit court of Perry county HON. W. J. PACK, Judge.

Bura Conway was convicted of manslaughter, and he appeals. Reversed and remanded.

Reversed and remanded.

Jeff Collins, of Laurel, for appellant.

The state undertook to prove three or four alleged dying declarations, among which was one testified about by Ira Pitman. Objections were made to this testimony because it was not properly qualified by the witness, either before the court on the preliminary or before the jury.

Nowhere does the state show, by this witness, or any other witness at the time of the alleged declaration, that deceased was in articulo mortis, or conscious of his impending death, or mentally competent to make such a statement.

Dean v. State, 173 Miss. 254.

It is not enough that the declarant has surrendered all hope of recovery and believes that his death is certain from the present wound or injury. It is necessary in addition that he must, according to his settled and hopeless expectation, feel and believe that his death is then imminent or impending, that it will speedily come, or, as some times expressed, he must believe that the finger of death is upon him.

Joshlin v. State, 23 So. 515; Belle v. State, 72 Miss. 504; Wilkinson v. State, 108 So. 593; Cooper v. State, 42 So. 666; Guest v. State, 52 So, 211.

When the preliminary question of admissibility has been determined by the court and dying declarations: have been admitted in evidence their credibility is exclusively for the jury whose province it is to weigh them and the circumstances under which they were made, and give to them only such credit, upon the whole evidence in the case, including that heard by the court on the question of competency, as they may think they deserve.

21 Cyc. 986, sec. (d); Jones v. State, 12 So. 444, 70 Miss. 401; Jackson v. State, 47 So. 502, 94 Miss. 83; Nelms v. State, 13 S. & M. 500; Brown v. State, 32 Miss. 433; Chase v. State, 112 So. 785, 147 Miss. 694; Lipscomb v. State, 75 Miss. 559, 23 So. 210; Lambeth v. State, 23 Miss. 322; Belle v. State, 72 Miss. 504.

Under the cases of Patty v. State, 88 So. 498, Walters v. State, 1'22 So. 189, defendant should have had a directed verdict.

Gaddis v. State, 110 So. 691; Sides v. State, 51 So. 465; Staiger v. State, 70 So. 690; Williams v. State, 84 So. 8; Bedwell v. State, 94 So. 220; Williams v. State, 98 So. 242; Strahan v. State, 108 So. 502.

There is no testimony positively contradicting defendant's witnesses, and the case ought to be reversed and defendant discharged.

It was error for the court to give the manslaughter instruction.

Adams v. State, 157 So. 59; Ricks v. State, 151 So. 572; Dixon v. State, 143 So. 855; Winchester v. State, 142 So. 454; Bridges v. State, 122 So. 533; Brister v. State, 109 So. 728; Leavell v. State, 92 So. 630; Jones v. State, 92 So. 586; Early v. State, 91 So. 417.

The court erred in overruling defendant's motion for a new trial on the ground that the verdict of the jury was contrary to the great weight of the evidence.

Howell v. State, 61 So. 314.

Where a verdict is against the overwhelming weight of the evidence it should be set aside on motion of defendant.

Carter v. State, 166 So. 377.

Earle L. Wingo, of Hattiesburg, for appellant.

The testimony of all of the witnesses of the state does not make out a crime of murder or manslaughter, and the verdict of the jury was against the overwhelming weight of the testimony.

A careful review and consideration of the testimony produced by the state in its attempt to show the alleged dying declaration of Ab Culpepper, the deceased, makes it immediately apparent that the declarant had not surrendered all hope of recovering or felt that his death was then imminent or impending.

Omitting from the record the alleged dying declarations of Ab Culpepper, the state absolutely fails to make a case of any sort against the appellant.

There was no proper qualification made of the alleged dying declarations of Ab Culpepper and the admission of such testimony was highly prejudicial, inflaming and poisonous to the best interest of the appellant and should have been excluded because of their incompetency.

Boyd v. State, 84 Miss. 414; Brown v. State, 32 Miss. 433.

Webb M. Mize, Assistant Attorney-General, for the state.

The dying declarations were properly admitted in evidence.

The finding of a trial judge on the admissibility of dying declarations cannot be reviewed on appeal, unless the trial judge's rulings were manifestly wrong.

Scott v. State, 166 Miss. 6, 148 So. 239; Muse v. State, 158 Miss. 449, 130 So. 693.

The competency of dying declarations should be decided in the absence of the jury by the trial court.

Wilkerson v. State, 134 Miss. 853, 98 So. 770.

Where the evidence, as in the case at bar, shows that deceased was seriously wounded and in a dying condition when the declaration was made and where the deceased repeatedly said he was going to die and where the evidence showed no hope of recovery, declarations made under such circumstances are admissible in evidence.

Jones v. State, 133 Miss. 8 2, 98 So. 340; Wilkerson v. State, 134 Miss. 853; Ealy v. State, 128 Miss. 715, 91 So. 417; Crawford v. State, 144 Miss. 793, 110 So. 517; Yarbrough v. State, 165 Miss. 847, 147 So, 780; Dean v. State, 173 Miss. 254, 160 So. 584.

The court did not err in refusing to grant a peremptory instruction.

McGehee v. State, 138 Miss. 822, 104 So. 150; Grady v. State, 144 Miss. 778, 110 So. 255; McFatter v. State, 147 Miss. 133, 113 So. 187; Brumfield v. State, 150 Miss. 552, 117 So. 529; Smith v. State, 167 Miss. 8-5, 147 So. 482; Thornton v. State, 170 So. 541.

The verdict of the jury was not contrary to the weight of the evidence and the motion for a new trial was properly overruled.

The evidence offered by the state and that offered by the defendant was contradictory. A verdict on conflicting evidence will not be disturbed on appeal.

Evans v. State, 159 Miss. 561, 132 So. 563; Chandler v. State, 143 Miss. 312, 108 So. 723; Brown v. State, 169 So. 837.

Argued orally by Jeff Collins for appellant, and by Webb M. Mize, for appellee.

OPINION

Anderson, J.

Appellant was tried in the circuit court of Perry county for the crime of the murder of one Abe Culpepper and convicted of manslaughter. He was sentenced to the penitentiary for a term of fifteen years, and from that judgment he prosecutes this appeal.

Appellant and Culpepper, the deceased, were brothers-in-law, the former having married the sister of the latter. They lived in the country in Perry county about half a mile apart. There were other families in the neighborhood. Appellant shot Culpepper to death with a pistol in the latter's home between seven and eight o'clock at night. The evidence leaves it uncertain as to whether there were two or three pistol wounds. Besides his wife, Culpepper had a daughter about eighteen years old and a son about sixteen by a former marriage; his wife, therefore, was their stepmother. She and the two children were the only eyewitnesses to the homicide. All three of them testified on behalf of appellant and made out a case of killing in self-defense.

The state's main reliance for conviction were Culpepper's dying declarations. He lived only a few hours after he was shot. Several witnesses testified that Culpepper made statements in their presence which, if true, showed he had been murdered by appellant. These statements were sufficiently qualified to justify their admission. The evidence showed, or tended to show, that when they were made Culpepper was mortally wounded and realized it, and, further, that death was then upon him--that he was in extremis.

Over appellant's objection Ira Pitman was permitted to testify before the jury as to the dying declarations without giving the facts which qualified them for admission. He had given the qualifying evidence before the court in the absence of the...