Dean v. State, 31454

CourtMississippi Supreme Court
Citation173 Miss. 254,160 So. 584
Docket Number31454
PartiesDean v. State.
Decision Date08 April 1935

160 So. 584

173 Miss. 254

Dean
v.
State.

No. 31454

Supreme Court of Mississippi

April 8, 1935


(In Banc.)

1. HOMICIDE.

Issues in murder trial as to whether deceased died of mercurial poison given him by defendant, her motive for committing crime, and sufficiency of her explanation of her failure to inquire about deceased's condition during his illness of over week held for jury.

2. HOMICIDE.

Evidence held sufficient to sustain conviction of murder by poisoning.

3. HOMICIDE.

Ordinarily, only admissible portions of dying declaration, other than part showing declarant's abandonment of all hope of recovery, [173 Miss. 255] are facts as to criminal agent's identity, delivery of fatal wound or giving of poison, and cause and circumstances of act.

4. HOMICIDE.

When defense contends in murder trial that deceased was not of rational mind and memory at time of his dying declaration, portions thereof disclosing whether he was mentally qualified at such time are admissible in evidence, if fairly necessary.

5. HOMICIDE.

Portions of deceased's dying declaration as to his insurance policies, location of such policies and combination to his safe, bills due, those he desired paid in particular, and his reasons therefor held admissible in murder trial on issue of deceased's mental competency at time of declaration.

6. HOMICIDE.

Deceased's questions to his mother as to whether he had been brave and good son and her answers held inadmissible as part of his dying declaration in murder trial.

7. HOMICIDE.

Erroneous admission in evidence of deceased's questions to his mother and her answers as to whether he had been brave and good son as part of dying declaration held insufficient to warrant reversal of conviction for murder, in view of defendant's determined assault on deceased's mental capacity at time of declaration.

8. HOMICIDE.

To render dying declaration admissible in evidence, declarant must not only have surrendered all hope of recovery and believed that his death was certain from present wound or injury, but must have felt and believed, with settled and hopeless expectation, that his death was imminent or impending and would speedily come, at time of making declaration.

9. HOMICIDE.

To render dying declaration of physician, who knew that poison given him was liable at early hour thereafter to render him unconscious and result in convulsions thereafter, admissible in evidence on trial for his murder by poisoning, it was unnecessary that he should then have expected immediate death, but sufficient that he entertained settled and hopeless expectation of certain and impending death at once or in very few days after period of total or partial unconsciousness.

[173 Miss. 256]

10. HOMICIDE.

Dying declaration is admitted in evidence on principle that it was made after declarant lost all hope of recovering from wound or injury, in firm belief that he was so near death that he had no possible expectation of personal benefit or advantage from anything he did or said, when every motive for falsehood had ceased, and that situation and his belief respecting it was so solemn and impressive as to be trustworthily considered as creating obligation equal to that imposed by positive oath in court ofjustice.

11. HOMICIDE.

Dying declaration of murdered physician, who directed his brother to look after and pay premiums due on his insurance policies which were in his safe in town some hundred miles away, requested that minister be called to pray that declarant might live until his former wife and child arrived from foreign country, and knew that poison given him was liable to render him unconscious at early hour and result in convulsions thereafter, held admissible in evidence as made with settled expectation of certain impending death at once or in very few days.

12. CRIMINAL LAW.

It is trial judge's duty at first outbreak of demonstrations by audience during trial to restore order immediately, admonish audience, give distinct warning that repetition will be punished, and admonish jury directly, but so as to be heard by audience, to decide case only on law and evidence and pay no attention to demonstrations.

13. CRIMINAL LAW.

When audience at trial or any person therein repeats misconduct after trial judge has admonished audience and given warning that repetition thereof will be punished, judge should cause offenders to be seized by sheriff, brought to bar, fined, and committed until payment of fines or require them to absent themselves from courthouse or its environs during remainder of term as condition of suspending fines, and may order courthouse cleared of all offenders.

14. CRIMINAL LAW.

Defendant, to avail himself of audience's misconduct during trial as ground for new trial or reversal of conviction, must object, properly move for mistrial, and except to adverse ruling before verdict, where trial judge reprimanded and rebuked audience at time of such misconduct. [173 Miss. 257]

ETHRIDGE and McGOWEN, JJ., dissenting, and Cook, J., dissenting in part.

ON SUGGESTION OF ERROR.

(In Banc. May 27, 1935.)

[162 So. 155. No. 31454.]

1. CRIMINAL LAW. Judgment of trial court can be reversed only with concurrence of majority of judges of Supreme Court. 2. CRIMINAL LAW. Equal division of judges of appellate court on question of reversal vel non of judgment of trial court results in affirmance of judgment. 3. COURTS. When Supreme Court is sitting in banc, there must be at least four of its judges present, and no action can be taken by court unless majority of judges present concur in such action (Const. 1890, sections 286, 287, as added in 1916). 4. CRIMINAL LAW. When cause is brought to Supreme Court on appeal, judgment of trial court is presumed to be correct and must remain in effect unless court, with a majority of judges present concurring, enters order on its minutes reversing or setting aside such judgment. 5. CRIMINAL LAW. If appellant's request or motion for reversal of judgment against him fails to receive vote of majority of judges, such request or motion is lost, and judgment remains in effect without error being declared therein. 6. CRIMINAL LAW. Judgment of affirmance rendered on equal division of judges of appellate court disposes of case as effectually as does judgment rendered when judges are all of the opinion that record is free from error. 7. COURTS. Constitutional provisions that under certain circumstances cause should be considered and "adjudged" by full Supreme Court [173 Miss. 258] or quorum thereof have no bearing on procedure by which Supreme Court functions, except to permit court to act when some of judges are absent, provided a quorum of judges are present: "adjudge" meaning to decide or determine judicially (Const. 1890, sections 286, 287, as added in 1916). 8. CRIMINAL LAW. Judgment of appellate court is rendered after all the judges participating in decision have expressed their views thereon, and if majority believe there is reversible error in record, judgment of reversal is entered, but if only minority of judges believe there is error in record, judgment is affirmed (Const. 1890, sections 286, 287, as added in 1916). 9. CRIMINAL LAW. Guilt or innocence of accused is question for jury, unless court can affirmatively say that under no view of the evidence could jury rightly find accused guilty. 10. CRIMINAL LAW. Where judges of Supreme Court equally divided on appeal from judgment of conviction in homicide prosecution, judgment would be affirmed, notwithstanding presumption of innocence in favor of defendant, since presumption of innocence disappeared when jury found defendant guilty, and was superseded by presumption that verdict of jury was right and that defendant was guilty (Code 1930, section 3403). 11. CRIMINAL LAW. Defendant accused of homicide was presumed to be innocent until jury by its verdict found her guilty, when presumption of innocence disappeared and was superseded by presumption that verdict of jury was right and that defendant was guilty (Code 1930, section 3403). 12. COURTS, Judge deciding judicial question must find facts and governing law, and must apply that law to facts. 13. CRIMINAL LAW. Where judges of Supreme Court equally divide on appeal from judgment of trial court, judges who are of opinion that there is no error in record are not required to surrender their views and concur in reversal of judgment.

HON. S. F. DAVIS, Judge. [173 Miss. 259]

Sarah Ruth Dean was convicted of murder by poisoning, and she appeals. Affirmed.

On suggestion of error. Suggestion overruled.

Gardner & Denman, of Greenwood, and J. J. Breland, of Sumner, for appellant.

No motive was shown.

The dying declaration of a person is simply part of the evidence and can be impeached or discredited by any admissions made by the deceased at any time prior to the alleged dying declaration, although such admissions would not be held competent themselves as the dying declaration.

2 Wigmore on Evidence, sections 1017 and 1018; Nelms v. State, 13 S. & M. 500; 30 C. J. 280, see. 522; 1 R. C. L., Impeachment, pages 548 and 549; 16 A. L. R. 411.

Juries cannot arbitrarily and capriciously disregard testimony of witnesses, not only unimpeached in any of the usual modes known to the law, but supported in all the circumstances of the case.

Railroad Co. v. Jackson, 92 Miss. 517; Houston v. State, 117 Miss. 311; Stewart v. Coleman, 120 Miss. 28; Stevens v. Stanley, 153 Miss. 809; Walters v. State, 153 Miss. 709; Wesley v. State, 153 Miss. 357; Crichton v. Halliburton & Moore, 154 Miss. 284; Tarver v. Lindsey, 161 Miss. 389; Weathersby v. State, 165 Miss. 207; 23 C. J., sec. 1791.

Homicide may not be imputed to a defendant on the basis of mere suspicious, though they are the suspicions of the dying.

2 Wigmore on Evidence, see. 1445; Shepard v. U.S., 54 S.Ct. 22; People v. Falletto, 202 N.Y....

To continue reading

Request your trial
2 practice notes
  • Russell v. State, No. 48198
    • United States
    • United States State Supreme Court of Mississippi
    • March 31, 1975
    ...the court to act when some of the judges are absent, provided a quorum (i.e., a majority) thereof are (sic) present.' Dean v. State, 173 Miss. 254, 312, 162 So. 155, 158 It was apparent to the Court at that time that a quorum meant a majority of the Court, and that a majority was necessary ......
  • Churchill v. Pearl River Basin Development Dist., No. 07-CA-59194
    • United States
    • United States State Supreme Court of Mississippi
    • February 25, 1993
    ...warrant a reopening of the controversy unless the court itself orders a reargument. 21 C.J.S. Courts Sec. 138 (1990). In Dean v. State, 173 Miss. 254, 162 So. 155 (1935) this Court 1 When this court is sitting in [sic] banc, there must be at least four of its judges present; and no action c......
2 cases
  • Russell v. State, No. 48198
    • United States
    • United States State Supreme Court of Mississippi
    • March 31, 1975
    ...the court to act when some of the judges are absent, provided a quorum (i.e., a majority) thereof are (sic) present.' Dean v. State, 173 Miss. 254, 312, 162 So. 155, 158 It was apparent to the Court at that time that a quorum meant a majority of the Court, and that a majority was necessary ......
  • Churchill v. Pearl River Basin Development Dist., No. 07-CA-59194
    • United States
    • United States State Supreme Court of Mississippi
    • February 25, 1993
    ...warrant a reopening of the controversy unless the court itself orders a reargument. 21 C.J.S. Courts Sec. 138 (1990). In Dean v. State, 173 Miss. 254, 162 So. 155 (1935) this Court 1 When this court is sitting in [sic] banc, there must be at least four of its judges present; and no action c......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT