Dean v. State

• Citation: 85 Miss. 40,37 So. 501
• Court: United States State Supreme Court of Mississippi
• Decision Date: 12 December 1904
• Parties: JAMES DEAN v. STATE OF MISSISSIPPI

37 So. 501

85 Miss. 40

JAMES DEAN v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

December 12, 1904

November 1904

FROM the circuit court of Holmes county HON. A. MCC. KIMBROUGH Judge.

Dean the appellant, was indicted, tried, and convicted of murder and sentenced to be hanged, and appealed to the supreme court.

Dean was jointly indicted with William and Samuel Campbell for the murder of one Washington Honey. There was a severance, and Dean was tried, with the result above stated. His motion for a new trial was overruled.

The evidence showed that on the night of the 18th of December 1903, Washington Honey and his wife were murdered in Holmes county, their bodies placed on a bed, face down, in their cabin, and the cabin burned. That on examination of their bodies it was found that they had been killed by blows with some blunt instrument. They occupied the cabin alone, which was about a mile and a half from the residence and store on the same plantation. That Washington Honey had $ 55.25 in silver at his home, and nothing could be found of this silver after the cabin was burned. That early in the night of December 18th he went to the store and made arrangements to make a crop for another year with the manager and storekeeper, who lent him $ 25. Dean was seen at the store peering through the window where and when Honey was paid the $ 25. Washington Honey and his brother and another man left the store together about eight o'clock in the evening to go home, and Dean left after them, riding a white mule, with a woman riding behind him, and four shots were heard by witnesses who left the store going in the same direction after the departure of Honey and his party. That on the night of the murder Dean brought the woman, Louisa Smith, from Tchula to the store, and took her home with him, where the two stayed that night. This woman testified that she heard Dean and William Campbell plotting at the store to rob Washington Honey and his wife, and that, when Washington Honey was getting the money at the store, Campbell said to Dean he would have that money if he had to get a crowd and kill him, and told Dean to fire a pistol five times after Washington left the store to let it be known that Washington had started home; that she and Dean rode on behind Washington, and Dean fired the pistol four times, she preventing him from firing the fifth time; that they came up behind Washington about sixty feet from his home, and were near him when William Campbell struck him in the face with an ax; that Washington fell, and Dean helped the other two, Samuel and William Campbell, carry him into the house and lay him in the bed beside his wife, who was dead; that the ax was left in the middle of the floor; that Dean asked one of the Campbells how much money they got from the woman, and he said it had not been counted; that after leaving the house the two Campbells returned, saying they would burn it.

The defendant offered in evidence the record showing the acquittal of William Campbell of the murder of Washington Honey, which was excluded by the court, and he also offered to prove that the witness, Louisa Smith, was in custody, charged with the same crime for which defendant was being tried. This was excluded.

The defendant assigned as error the giving of the second, third, fourth, and fifth instructions for the state, and the refusal of the eleventh asked by defendant; the exclusion of the record and the evidence of the charge against the Smith woman; the admission of evidence for the state tending to show that Cora Honey, wife of Washington Honey, was murdered; the admission in evidence of the fact that the silver money was in the house before the murder and not there afterwards; the admission of the evidence of the burning of Washington Honey's house.

The instructions complained of are as follows:

"(2) The court instructs the jury that the law does not require you to know that the defendant is guilty before you return a verdict of guilty as charged, but only that you should believe him guilty, beyond all reasonable doubt, from all the evidence considered together.

"(3) The court instructs the jury that if they believe from the evidence, beyond a reasonable doubt, that Washington Honey was murdered as alleged in the indictment, and that on the night of the killing, and before the murder, James Dean had an agreement with the person who actually committed the murder that he, James Dean, would aid in the murder or robbery of Washington Honey that night by firing his pistol to give notice that Washington Honey had left the store and was on his way home, and that such firing for such purpose was done by James Dean pursuant to such agreement, and that the three--Dean, Samuel Campbell, and William Campbell-- then met and murdered Washington Honey, then the jury should find James Dean guilty of murder.

"(4) The court instructs the jury that if they believe from the evidence, beyond a reasonable doubt, that James Dean was present at the time of the killing of Washington Honey, with intent to aid and abet in the murder of Washington Honey if his assistance became necessary, and that Washington Honey was murdered as charged in the indictment, then James Dean is as guilty as the one who did the killing, though he may not have actually taken any other part in such homicide.

"(5) The court instructs the jury that if they believe from the whole evidence, beyond a reasonable doubt, that Washington Honey was murdered, and that James Dean aided, assisted, and encouraged William Campbell or any other person in murdering Washington Honey, then he is as guilty as such other person, and the jury should return a verdict of guilty."

The eleventh charge asked for defendant and refused was as follows: "(11) The court instructs the jury that they cannot find the defendant guilty if they have a reasonable doubt as to whether William Campbell did willfully and feloniously, and of his malice aforethought, kill and murder Washington Honey."

Affirmed.

R. C. McBee and S. M. Smith, for appellant.

The second instruction for the state was an attempt to define a "reasonable doubt, " or rather to state what would not be a reasonable doubt, and in effect charged the jury that they might convict on a less degree of certainty of guilt than the law requires.

"The law does not require you to know, " etc. The knowledge referred to is, of course, that character of knowledge that is based on information received from others--to wit, the witnesses in the case; for if the members of the jury themselves possessed actual personal knowledge of the fact, they would have been disqualified to serve in the case.

This character of knowledge is "nothing more than a man's firm belief." 18 Am. & Eng. Ency. Law (2d ed.), 67, 68. "Know, " as defined by Webster, means "to be aware of as true or actual; to have mental cognition of; to perceive or apprehend clearly; to be convinced of the truth of; to have information of; to be assured of." Apply either of the above definitions to the above instruction and the same will be seen to be erroneous. Williams v. State, 73 Miss. 823; Powers v. State, 74 Miss. 777; Jones v. State, 36 South. Rep., 243.

The third instruction for the state is erroneous. First, it does not correctly announce the law of conspiracy; and second, it refers to the crime under investigation as "the murder, " and to appellant's alleged principal as "the one who actually committed the murder."

It is for the jury to determine whether an act done by a member of a conspiracy is done in furtherance of the common design, as well as what are the natural and necessary consequences of such act. 6 Am. & Eng. Ency. Law (2d ed.), 872; Spies v. People (Ill.), 3 Am. St. Rep., 320; Bowers v. State (Tex.), 5 Am. St. Rep., 901; Amos v. State (Ala.), 3 South. Rep., 751; Tanner v. State (Ala.), 9 South. Rep., 615; State v. Furney (Kan.), 13 Am. St. Rep., 267; Powers v. State (Ky.), 53 L. R. A., 253.

This principle of the law of conspiracy was lost sight of by the court below in passing on this instruction, and it was assumed as matter of law, instead of being left to the jury as a question of fact, that if the deceased was murdered by one of the parties to a conspiracy to rob, such murder was committed in furtherance of the common design.

Appellant was jointly indicted with William Campbell, all the evidence in the case showing that if he was guilty at all, it was of aiding and abetting William Campbell, and not any other person. The only witness who...