Crawford v. State

• Decision Date: 06 December 1926
• Docket Number: 25915
• Citation: 110 So. 517,144 Miss. 793
• Court: Mississippi Supreme Court
• Parties: CRAWFORD v. STATE. [*]

110 So. 517

144 Miss. 793

CRAWFORD v. STATE. ^[*]

No. 25915

Supreme Court of Mississippi

December 6, 1926

Division B

1 HOMICIDE. Statement, made after abandoning all hope of recovery while sane and rational, is admissible as "dying declaration."

Where the evidence, in a prosecution for murder, shows that the deceased had abandoned all hope of recovery, and death was imminent, and such person, after such facts appear, makes a statement as to how the transaction occurred, such is admissible as the dying declaration; the proof showing that the declarant was sane and rational at the time of making such statement.

2. CRIMINAL LAW. Instructions, if defendant was guilty, to render one of three verdicts, and defining manslaughter, and that, if defendant so killed deceused he could be convicted of manslaughter, were not erroneous, when read together.

Where the state, in its instruction on the form of verdict in a prosecution for murder, tells the jury that, if it finds the defendant guilty as charged, it may render one of three verdicts usually contained in such instructions, and the penalty that will follow a verdict under said hypotheses, and also defines manslaughter in a separate instruction, and tells the jury that, if they believe the defendant so killed the deceased, they may find him guilty of manslaughter, there is no reversible error, as all the instructions are to be read together and construed as a whole.

3. CRIMINAL LAW. Homicide. Refusal of instructions as to right to defend habitation was not error, in absence of testimony of attack on dwelling; instruction must be predicated on evidence.

In a prosecution for murder, where the defendant testifies that he shot the deceased in self-defense, and the deceased was drawing a weapon at the time, and does not testify to any facts showing that the killing was done to prevent a felony upon or in his dwelling, the defendant cannot complain at the refusal of instructions submitting to the jury the right to defend one's habitation. The instruction must be predicated upon the evidence.

4. CRIMINAL LAW. Where ample instructions present defense disclosed by evidence, refusal of other instructions requested is not reversible error.

Where the defendant procures ample instructions to present his defense disclosed by the evidence to the jury, it is not reversible error to refuse other instructions requested by him.

HON. S F. DAVIS, Judge.

APPEAL from circuit court of Leflore county, HON. S. F. DAVIS Judge.

Frank Crawford was convicted of manslaughter, and he appeals. Affirmed.

Judgment affirmed.

Boothe & Pepper, for appellant.

I. Dying declaration. This court has always been very guarded and extremely careful in the admission in a criminal case of statements made by the deceased to be used as evidence against the defendant, unless the so-called dying declaration meets every requirement of the law as construed in a long line of authorities touching every phase of such statement and declarations. In this case the declarant at best and in his strongest statement in behalf of the state merely expressed an opinion that he would never get well. "Declaration made by declarant who merely stated that he would never get well is not sufficient and is inadmissible in evidence." Snell v. State, 109 Miss. 744, 69 So. 593. What is a dying declaration? See Lewis v. State, 9 S. & M. 115; 1 Mor. St. Cas. 392; Joslin v. State, 75 Miss. 838, 23 So. 515.

Statements made by deceased to a physician, when deceased was not told that he was going to die, even though the statements were made about the star of the evening preceding the night of the deceased's death, are not admissible. Sparks v. State, 6 So. 843.

Dying declaration must be made under the realization and solemn sense of impending death, when the motive for falsehood may be presumed to be lost in the despair of life. Lipscomb v. State, 75 Miss. 559, 23 So. 230; Joslin v. State, 75 Miss. 838, 23 So. 515; Brown v. State, 78 Miss. 837, 29 So. 519, 84 A. S. R. 641; Guest v. State, 96 Miss. 871, 52 So. 211.

Where a dying declaration is manifestly a statement of an opinion, although in form one of fact, it is inadmissible. Jones v. State, 79 Miss. 309, 30 So. 759. The truth and proper test as to admissibility of a dying declaration is whether the statement is a direct result of observation through declarant's senses or comes from the course of reasoning from collateral facts. If the former, it is admissible; if the latter, it is inadmissible. House v. State, 94 Miss. 107, 48 So. 3, 21 L. R. A. (N. S.) 840. N.

To render a statement admissible as dying declaration, there must be clear proof that at the time there was on the part of the deceased a settled belief of impending death and the absence of all hope, however slight, of recovery. It is not necessary that he should have stated such belief, nor on the other hand, is his mere statement thereof conclusive as to the suggestion. Bell v. State, 72 Miss. 507, 17 So. 232.

In passing on the competency of a dying declaration the court should make full inquiry as to the circumstances and, if necessary, require all witnesses capable of throwing light on the subject to be produced and it should be excluded if there be a reasonable doubt as to its competency. Bell v. State, 72 Miss. 507, 17 So. 232.

In the absence of specific proof that the alleged dying declaration is made by declarant when resting under an abiding sense of impending dissolution, such declaration is inadmissible in evidence. See also Ashley v. State, 37 So. 960.

Competency of dying declaration is a preliminary question for the court. They should be admitted only when full investigation of circumstances under which they were made shows them to be competent. Owens v. State, 59 Miss. 547; Lipscomb v. State, 75 Miss. 559, 23 So. 230.

As a preliminary question the admissibility of a dying declaration is determined by the court and the degree of proof required to establish that the declarant realized he was in extremis is such as to exclude all reasonable doubt. Lipscomb v. State, 75 Miss. 559, 23 So. 230; Guest v. State, 96 Miss. 871, 52 So. 211.

It is very interesting to note how carefully guarded are the rights of a defendant, when dying declarations are offered in evidence against him, by this court, See Hill v. State, 64 Miss. 431, 1 So. 494; Gambrell v. State, 92 Miss. 728, 46 So 138, 17 L. R. A. (N. S.) 291; Lambert v. State, 23 Miss. 222; Merrill v. State, 58 Miss. 68; Reeves v. State, 109 Miss. 885.

II. Sense of impending death must be realized. Wilkerson v. State, 98 So. 77 ; McNeil v. State, 76 So. 625; Hawthorne v. State, 102 So. 772, Lea v. State, 103 So. 368.

III. Defense of Habitation and property. A man's habitation is his castle, and he can defend it against all intruders. The authorities from all states are unanimous on this principle of law. State v. Raper, 42 S.W. 935, 141 Mo. 327; Crawford v. State, 112 Ala. 1; Smith v. State, 106 Ga. 673, 71 A. S. R. 286; Hayner v. People, 72 N.E. 792, 213 Ill. 142; Thompson v. State, 85 N.W. 62, 87 A. S. R. (Neb.), 453; McGlothlin v. State, 53 S.W. (Tex.), 869; Boykin v. State, 86 Miss. 489, 38 So. 725; Patterson v. State, 95 S.W. (Tex.), 129; Ayers v. State, 60 Miss. 709. The above decisions from our court are fortified by section 960, Hemingway's Code (section 1230, Code of 1906), Justifiable Homicide.

J. A. Lauderdale, Assistant Attorney-General for the state.

I. The dying declaration. The leading and ruling Mississippi case regarding the admissibility of dying declarations is Lipscomb v. State, 75 Miss. 559, at 579. We submit that under the ruling laid down in that case the dying declaration introduced in this case was entirely competent and admissible.

II. Instructions 1, 3, and 4 are definitions of murder and the various verdicts the jury might find in the event they found the defendant guilty of murder. These instructions are all correct propositions of law, applicable to the facts in this case, and were correctly given.

Instruction No. 2 for the state defines manslaughter and requires the jury to find the defendant guilty of manslaughter. Counsel for appellant contends that under the proof in this case there was no element of manslaughter and the instruction should not have been given. This court has repeatedly held otherwise, and very recently in White v. State, 107 So. 755. Instruction No. 7 for the state was approved in Tatum v. State, 107 So. 418.

III. Motion for a new trial. Defendant filed a motion for a new trial. This motion alleged that the jurors who tried this case were allowed to separate during the trial. Testimony was taken on the motion which showed that the jury room was adjoining the court room; that the jury was in the box; that one of the jurors left the jury with the bailiff and went into the jury room and into the lavatory; that neither of the doors were closed; that the juror was in the presence of the bailiff at all times and he was away from the other eleven jurors for only a few minutes. The proof showed conclusively that no communications were had with this juror and that nothing was done that could in any way influence his verdict. White v. State, 107 So. 755; Ned v. State, 33 Miss. 364.

Argued orally by A. M. Pepper, for appellant, and J. A. Lauderdale, Assistant Attorney-General, for the state.

OPINION

ETHRIDGE, J.

The appellant was indicted for the murder of one E. M. Page in the circuit court of Leflore county, convicted of manslaughter, and sentenced to serve a term of five years in the penitentiary.

Crawford was a tenant on the place of E. M. Page during the years 1924-25, and had remained thereon after the expiration of the year 1925 for the purpose of gathering a portion of his crop. He was working a...