Cook v. State

• Decision Date: 27 March 1905
• Citation: 85 Miss. 738,38 So. 110
• Court: Mississippi Supreme Court
• Parties: DANIEL COOK v. STATE OF MISSISSIPPI

38 So. 110

85 Miss. 738

DANIEL COOK v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

March 27, 1905

FROM the circuit court of Calhoun county, HON. WILLIAMS F STEVENS, Judge.

Cook the appellant, was indicted, tried, and convicted of murder and appealed to the supreme court. The facts are fully stated in the opinion of the court.

Reversed and remanded.

R. V. Fletcher, for appellant.

Various witnesses were permitted to testify to statements made by defendant, and some made by defendant's brother after the difficulty was over. These statements were made when the prisoners were arrested, and some two or three hours after the difficulty.

These are, of course, no part of the res gestae. They can be competent only on the theory of a conspiracy, so far as the statements of the brother are concerned. It is well settled that the declarations of a fellow-conspirator cannot be admitted in evidence if such declarations are made subsequent to the consummation of the crime and unless facts of the conspiracy are shown otherwise than by the declarations of the alleged conspirators. Gillum v. State, 62 Miss. 547; Garrard v. State, 50 Miss. 147; Simmons v. State, 61 Miss. 243.

Coming now to the consideration of the very damaging testimony of the witness Lawrence Monahan. The witness testified that the alleged threat was made two or three years before. the homicide, that it was directed toward Crawford as one of a larger class, that the condition of the threat was never fulfilled. This court has decided flatly that a threat made three or four years before the killing is too remote to be introduced in evidence. Mackmasters v. State, 81 Miss. 374. And it has further decided that a threat made twelve months before the affair is remote and subject to objection. Owens v. State, 80 Miss. 499.

Besides, how could this statement be competent when the condition of the threat had never happened? Put into the form of a syllogism, it is as perfect a non sequitur as one might ever confront. Thus: If Crawford makes me pay out any more money, I will kill him. But Crawford has never made me pay out any more money; therefore I will kill him, and do kill him. The only effect of permitting such testimony as this is to mislead the jury and get before them for their consideration certain foreign and irrelevant matter, showing that defendant was a crap shooter and that he went about making threats. This will not do. Raines v. State, 81 Miss. 489.

Even more objectionable, if possible, is the testimony about the convictions in the mayor's court of Ellzey. It should be remembered that these were convictions, not of defendant, but of the brother of defendant, the other Cook. They were three and two and a half years, respectively, before the killing; they were too remote in point of time to be competent. Herman v. State, 75 Miss. 340; Raines v. State, supra.

And, besides, they could furnish no motive for the crime. They were not convicted by Crawford; there were pleas of guilty in both cases. The fines were absurdly small. The affidavits were made out by another in each case. They did not affect this defendant. They only served to besmirch the character of the brother and co-defendant, and show that he was guilty of other and disconnected crimes, foreign to the issue then on trial. As such, they are subject to the very criticism that was so ably passed on the evidence in the Raines case. No attempt had been made by defendant to show his good character or that of his co-defendant at that time, and yet these record proofs of convictions were brought in, tending to break down his character in violation of well-settled principles of evidence. Kearney v. State, 68 Miss. 233.

The second instruction for the state is open to the serious objection that in attempting to detail and recite the facts of the case, it omits an important feature which was admittedly true. For all the witnesses agree that when Crawford went out of the gate and faced about toward defendant, who was on the opposite side of the fence, and when Crawford picked up the brick or stick, defendant was securely pinioned from behind, being held by two men; in other words, defendant was at the time hors de combat. The instruction under review ignores this important fact, and charges the jury that if Crawford picked up the brick or paling to defend himself against the threatened attack of defendant, and that then defendant cried out, "Cut him, Lon," etc., and that Alonzo Cook heard this and acted on it, and stabbed Crawford, then defendant is guilty as charged. The jury is therefore informed in effect that the helpless condition of defendant, held a secure prisoner at the time, had no probative force in influencing their verdict. An instruction attempting to recite facts must recite all that are material, the circumstances favorable to defendant as well as those favorable to the state. Wilburn v. State, 73 Miss. 245; Jackson v. State, 66 Miss. 89.

J. N. Flowers, assistant attorney-general, for appellee.

A short while before the tragedy this accused was in a fight with other persons, and had just been separated from them. At the time Crawford was stabbed by Alonzo Cook, this accused had an ax in his hands, but was being held by Young and others. He was mad, cursing and threatening. Crawford had no part in the former difficulty in which appellant had been engaged, but happened to walk up just after the said difficulty had been settled and about the time appellant was caught by Young. Appellant notified the crowd that it was safer for them to stand away from him, telling them at the same time that he would kill every one of them, and when he saw Crawford appear within a few feet of him, he said: "You stand back too, G--d d--n you! I will kill you." It seems that about this time Crawford, having walked a few feet inside of the yard through the north gate, walked back through the gate, and Alonzo Cook followed him on the outside; that about the time they got through the gate appellant called to his brother to shoot Crawford and kill him. And then about the time appellant made this exclamation, Alonzo stabbed Crawford in the left breast about the heart. Crawford fell on his face, and was dead in a few minutes.

Crawford was mayor of the village, and had been mayor, it seems, for several years. He appeared on the scene on this occasion as a peace officer. Nobody pretends he was there to take any part in any difficulty as against these two boys. Nobody says that he spoke a single word to these boys or to any one else. As soon as he appeared their attention was directed towards him of all the men in the crowd, and their attention seems to have fastened upon him until he was on the ground. He is said to have been a strong man physically, and was prominent in the community.

The reason for the joint attack made by these boys on this man can only be found in the fact that they were mad at him because of his dealings with them as mayor of the town. He had had occasion several times to place a penalty upon Alonzo Cook, who, it appears, charged Crawford up with his indictment in the circuit court. The two boys were together, taking each other's part in this fight, and taking each other's part, doubtless, through the long list of grievances which they had against this man.

While the court held, in McMasters' case, that a threat made by the accused five years before he killed his father was too remote, yet the court did not mean to say that the age of the threat must necessarily be less than five years. In that particular case the threat was held to be too remote, but there may be circumstances under which a threat of that age may be proved. In the case at bar, it seems that the threat grew out of the same circumstances as prompted the killing.

There is no rule of evidence which requires that threats of this kind must be unconditional. There may be circumstances under which a conditional threat may not serve the purpose for which an unconditional one can be used, as where one might show a threat to justify an assault. But in a case like the one at bar, the threat shows the state of mind of the man making it; it shows existence of malice; it shows that he held Crawford as an enemy. "The mere fact, however, that it (the threat) is expressed in the alternative or upon a condition or contingency does not destroy its probative value, but the intervening fulfillment of the condition should ordinarily be shown, if it occurred." Wigmore on Evidence, sec. 107; Reed v. State, 68 Ala. 492, 496; Phillips v. State, 62 Ark. 119 (S.C., 34 S.W. 539); Com. v. Crowe, 165 Mass. 139 (S.C., 42 N.E. 563); State v. Johnson, 76 Mo. 121, 124; State v. Sloan, 22 Mont. 293 (S.C., 56 P. 364); State v. Bradley, 67 Vt. 465 (S.C., 32 A. 240).

The statements made by appellant to his brother after the killing were clearly admissible. They were admissions; they amounted to confessions; they demonstrated the purpose, the general purpose, of the two; they showed the presence of malice and design. In fact, more valuable or competent testimony could hardly be presented to the jury. Its admissibility is not dependent upon any proof of conspiracy.

Argued orally by R. V. Fletcher, for appellant.

OPINION

CALHOON, J.

Daniel Cook and Alonzo Cook are brothers. They were jointly indicted for the murder of Robert L. Crawford, who was slain on June 7, 1903, by a stab with the large blade of a Barlow knife in the hands of Alonzo Cook. Severance was had, and separate trials, in both of which convictions were had, and Alonzo Cook sentenced to the penitentiary for life, and Daniel Cook, the appellant, sentenced to be hanged.

In the essential features of the case, as to the occurrences at the time of the homicide, the testimony was quite...