Davis v. State

• Citation: 37 So. 1018,85 Miss. 416
• Court: United States State Supreme Court of Mississippi
• Decision Date: 05 March 1905
• Parties: BENJAMIN FRANKLIN DAVIS v. STATE OF MISSISSIPPI

37 So. 1018

85 Miss. 416

BENJAMIN FRANKLIN DAVIS v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

March 5, 1905

November 1904

FROM the circuit court of Attala county, HON. WILLIAM J. LAMB Special Judge.

Davis the appellant, was indicted and tried for the murder of James Rickles, and was convicted of manslaughter, and appealed to the supreme court. The facts upon which the decision turned are sufficiently apparent from the opinion of the court.

[The original and main brief of appellant's counsel and the brief of counsel for appellee were withdrawn from the record mislaid, or lost before the transcript came to the hands of the reporter. The reporter, however, found an additional, or supplemental, brief for appellant, the synopsis of which is given below.]

Reversed and remanded.

S. L. Dodd, and Teat & Teat, for appellant.

It was fatal error in the court to permit the district attorney, in his final argument to the jury, to read to the jury the type written notes prepared by the stenographer at his request, and to tell the jury that the same was the exact language and testimony of the witnesses, when in truth and in fact, as plainly shown by the record, he only read portions of their testimony to the jury, and not all of it.

Here was a great abuse of the province of the district attorney. He had no right to read the stenographer's notes to the jury, much less only broken sections and disconnected portions of the testimony, and then, over objection of appellant, to say to the jury that what he read was the precise testimony of the witnesses.

Again, there is nothing to show in the record that the written matter read to the jury had been properly authenticated by the stenographer, but only the declaration of the district attorney that he had caused the stenographer to write out the testimony of the witnesses in part. Here we have a record read to the jury, over the protest of the appellant, an incomplete document which did not purport to be official, read in the closing argument, without appellant's counsel being afforded a chance to read or have read to the jury any of the parts of the statements which were omitted by the district attorney.

Now the appellant distinctly assigned this as error in his motion for a new trial, and we insist it was highly prejudicial to the rights of the appellant, and a great abuse of power by the district attorney, and which was used, as the record shows, in a highly vehement and inflammatory way.

William Williams, attorney-general, for appellee.

OPINION

TRULY, J.

The action of the court in permitting Mrs. Rickles, the wife of the deceased, to testify that after the homicide she had heard one Richardson state that the defendant had made threats against the deceased, was palpable error. The trial judge evidently realized the error committed, for at a subsequent stage of the trial, of his own motion, he excluded from the jury the testimony in reference to the threats. But we cannot confidently affirm that this undid the evil effect of the erroneous admission of the evidence. With this plainly incompetent hearsay testimony stricken out, there was no evidence that appellant had made any threats against deceased. Richardson, the party whom Mrs. Rickles claimed to have heard make the statement in reference to threats by the appellant, was not introduced as a witness, so all the testimony bearing on threats rested solely on this confessedly erroneous ruling. Under the facts of this case it was vital to the appellant's defense not to have the jury improperly influenced in deciding the mental attitude occupied by himself and the deceased at the time of the homicide. The crucial question which the jury was called on to decide was: Who was the originator of and aggressor in the difficulty at the scene of the homicide which resulted in the death of Rickles? As tending to shed light on the pivotal point, any testimony of antecedent malice or previous preparation on the part of either of the combatants was important. The eyewitnesses were few, the conflict in their testimony sharp. In such a case the court erroneously threw, on the side of the state, the weight of this incompetent testimony of alleged threats. In a case so evenly balanced, this was sufficient to turn the scale against the accused.

The defense relied on by the appellant was that the deceased on the occasion of the homicide had armed himself for the purpose and with the deliberate intention of carrying into execution the threats which he had...