Davis v. State.

• Decision Date: 09 June 1930
• Docket Number: 28487
• Citation: 128 So. 886,157 Miss. 669
• Court: Mississippi Supreme Court
• Parties: Davis v. State.

128 So. 886

157 Miss. 669

Davis v. State.

No. 28487

Supreme Court of Mississippi

June 9, 1930

(Division B.)

1. CRIMINAL LAW. Defendant failing to request instruction on manslaughter cannot complain of absence thereof.

A defendant in a criminal prosecution cannot complain of the absence of a manslaughter instruction, where the said defendant has not requested the court to give such an instruction.

2 HOMICIDE. Refusal of instruction in respect to murder, in case defendant was not in condition so as to form premeditated design, held not erroneous under evidence.

On a trial for murder, it is not reversible error for the court to refuse an instruction not predicated upon the evidence.

3 WITNESSES. Husband is incompetent witness against wife in criminal prosecution; statement made in husband's outcry after wife has killed another is not admissible in evidence against wife, whether part of res gestae or not.

A husband is an incompetent witness against his wife in a criminal prosecution, and a statement made in outcry by the husband after the wife has killed another is not admissible in evidence, as the husband is an incompetent witness whether such statement be a part of the res gestae or not.

HON. S. F. DAVIS, Judge.

Velma Davis was convicted of murder, and she appeals. Reversed, and a new trial granted.

T. E. Mortimer, of Belzoni, for appellant.

Husband not permitted to testify against his wife without her consent.

Sec. 1649, Hemingway's Annotated Mississippi Code, 1927; Byrd v. State, 57 Miss. 243, 34 Am. Rep. 440; Johnson v. State, 63 Miss. 313; Cole v. State, 75 Miss. 142, 21 So. 706; Finklea v. State, 94 Miss. 777, 48 So. 1; Pearson v. State, 97 Miss. 841, 53 So. 689; McQueen v. State, 139 Miss. 457, 104 So. 168.

An instruction to the jury that the evidence that the time of shooting of Nettie Vale by the defendant, the mind of the defendant from any cause was in such a condition as to be incapable of forming a premeditated design or deliberating coolly, then the defendant is not guilty of murder, should have been given.

Rowland v. State, 83 Miss. 486, 487; 2 Bishop, sec. 708; McLain's Crim. Law, sec. 341; 21 Am. & Eng. Ency. Law (2 Ed.), p. 187. George T. Mitchell, Attorney-General, and Forrest B. Jackson, Assistant Attorney-General, for the state.

Where the lower court has not been given an opportunity to pass upon the question, there will be no reversal.

The instruction that was given the state is approved in the case of Huddleston v. State, 134 Miss. 382, 98 So. 839, and the fact that there were no manslaughter instructions given to offset or to counter-balance the murder instructions cannot be assigned as error for the reason that the accused requested no instructions properly defining the crime of manslaughter.

Grady v. State, 144 Miss. 778, 110 So. 225.

The Rowland, Case, 83 Miss. 483, 35 So. 826, relied upon by accused is based upon an entirely different state of facts, the circumstances there showing that the husband apprehended his wife in the very act of adultery. In the instant case, there was no such condition.

Ethridge P. J., delivered the opinion of the court.

Velma Davis, the appellant, was indicted, tried, and convicted for the murder of one Nettie Vale, and sentenced to a life imprisonment in the state penitentiary.

It appears that the appellant, Velma Davis, had married one Robert Davis some time prior to the killing in question. Prior to that marriage, Robert Davis and Nettie Vale had lived together in illicit relations and she had borne one child to Robert Davis. After the marriage to the appellant, Nettie Vale was sent away and she went to the state of Arkansas, but returned to the state of Mississippi shortly before the killing, and went to Robert Davis' place, and he told her that she could not live there any more, but he and the appellant agreed to take the child and take care of it. Nettie Vale went to a neighboring house, and it appears that Robert Davis went to that house on the night of the killing and was talking to Nettie Vale at the time she was shot by the appellant.

Claud Matlock and his wife were witnesses for the state. Claud testified that they all sat upon the porch of the house a little bit after Robert Davis came there, and then he and his wife went into the house leaving Nettie Vale and Robert Davis on the porch; that Velma Davis cameup dressed in men's clothes, and he (Claud Matlock) did not recognize her at first, and she asked if Robert Davis was there and he stated he did not know. That the appellant then passed the window through which she had been talking to Claud Matlock, and went around toward the front of the house, and he heard a shot fired; that the defendant, Velma Davis, never said anything to Nettie Vale and Robert Davis; that the deceased, Nettie Vale, was shot in the back; that when Velma Davis fired, he (Claud Matlock) jumped up and ran on the porch and "Mr. Davis and Velma were wrestling with the shotgun" and that he (Claud Matlock) took the shotgun and gave it to his wife, and that Velma Davis walked down the road a little way and got out in the cotton patch, and that Robert Davis, her husband, said: "Stop that damn bitch, she has killed this girl." This statement was objected to by the appellant, and his objection was overruled by the court. The wife of Claud Matlock testified to the same statement as her husband, and that constituted one of the assignments of error.

It appears that Nettie Vale, on the return trip from Arkansas had stated to a witness that she was going back and run Velma Davis off, and that the witness asked her the question, "What, if she does not run? and that she said she would run her off or kill her, and that he communicated this threat to Velma Davis before the killing." Velma Davis testified that this threat had been communicated to her, and on the evening that her husband left home she put the children to sleep and took the gun and went down to Matlock's place; that she took the gun for protection, and that she asked Matlock if Robert Davis was there, and he said he did...