Denham v. State

• Decision Date: 26 October 1953
• Docket Number: No. 38824,38824
• Citation: 67 So.2d 445,218 Miss. 423
• Parties: DENHAM v. STATE.
• Court: Mississippi Supreme Court

Page 445

67 So.2d 445

218 Miss. 423

DENHAM v. STATE.

No. 38824.

Supreme Court of Mississippi.

Oct. 26, 1953.

E. B. Todd, Barnett, Jones & Montgomery, Jackson, for appellant.

J. P. Coleman, Atty. Gen., By John E. Stone, Asst. Atty. Gen., for appellee.

LEE, Justice.

Sylvester David Denham was indicted in the First Judicial District of Hinds County for the murder of Mrs. Sylvester W. Denham, his wife. The jury found him guilty of manslaughter, with a recommendation of mercy, and the court sentenced him to serve a term of seven years in the state penitentiary. From the judgment entered thereon, he appealed.

On the evening of April 24, 1952, shortly after nine o'clock, a couple registered into Unit 2 of the Oakland Tourist Court in the City of Jackson as Mr. and Mrs. J. Turner. About fifteen minutes later, Miss Bessie Whitmore, the manager, heard a loud crash and several shots. Shortly thereafter, she saw the appellant coming from the north end of the court with a shotgun in his hand. He walked up to her and said, 'Bessie, call the law.' When she asked what had happened, he replied, 'I just shot my wife.' Within a matter of minutes police officers came and discovered the bodies of Mrs. Sylvester W. Denham and Wesley Kemp inside the tourist cabin. Pictures were taken of both the exterior and interior. The cabin consisted of a bedroom and adjacent bath. The bed was located about five feet from the door, and on it lay Mrs. Denham, clad in a kimono, which was pulled under her arms, and a slip, which was also drawn above the waist. She also wore a gown. There were two shotgun wounds in her body. One was in the lower part of the abdomen and the other was in her left side. Shoeless, her feet rested on the floor. On the other side, and at the foot, of the bed, lay the crouching body of Wesley Kemp, with shotgun wounds in the pit of the stomach and in the right shoulder. He was clad only in an undershirt, his shoes and socks were under the edge of the bed, and his clothes were hanging on a nearby chair. Dents, caused from buckshot, were observed on the wall over the head of the bed, and some of such shots were picked up from the floor.

The shotgun, taken from the appellant, still had one unfired shell in it. Seven other shells, all loaded with buckshot, were taken from his person. Four empty shells were picked up at the scene, together with a sledge hammer and pieces of a flashlight.

Appellant was taken into custody, and later that night, made a free and voluntary confession. The substance of the confession was that the appellant had suspected his wife of being unfaithful to him. He procured one G. E. Delbridge to rent a room at the Oakland Court in order to watch for his wife. Some time in the evening, Delbridge reported that he had been unable to detect anything. Thereafter both men, in a car, started to Delbridge's room at the court. Appellant secreted himself by lying down on the floor of the car. He carried a sledge hammer and a shotgun with him. In Delbridge's room, he heard the alleged Mr. and Mrs. J. Turner talking as they were renting their cabin, but he knew that they were his wife and her brother-in-law, Kemp. A few minutes later, with the sledge hammer and shotgun, to which was taped a flashlight, he went to the door of Unit 2, broke it open with the sledge hammer and threw the light directly on his wife and Kemp, who were in the bed, engaged in sexual intercourse. He told them to 'wait' or 'hold it'. One of them said, 'Look out, there is Sylvester.' Kemp jumped up and started toward his clothes. Thereupon appellant said, 'And as he did, I shot him one time then she started up off of the bed and started toward me and I shot her one time. Then as he turned over again I shot him again, and then I shot her again.' However he qualified the above statement by saying, 'I am not positive if I shot him, then her, or if I shot him two times, then her two times.' The foregoing constituted the State's case in chief.

The defense produced a large number of witnesses who testified that appellant's general reputation for peace and violence, for honesty, integrity and fair dealings was good. His son, B. D. Denham, mother, Mrs. Martha Denham, and a maid, Louverta Fields, testified to certain facts which tended to establish the deceased's marital infidelity. The son and mother also testified that the appellant was greatly disturbed, and, in their opinion, he was insane at the time of the killing. On the stand, the appellant testified in great detail about his marital unhappiness, including telephone calls and conversations and the finding of notes; that he wished to obtain trustworthy evidence so that he could obtain a divorce, and to that end, he talked with the sheriff and other officers and employed G. E. Delbridge. He had not suspected any improper relations between his wife and Kemp until they visited in Kemp's home the day before. His testimony as to the facts and circumstances immediately before and at the time of the killing, while more elaborate, was in substantial agreement with what he said in his confession. When asked if he was insane when he called the police, his reply was, 'I was just like that (shaking).' He admitted that he dialed 'O' and called for an ambulance.

In rebuttal, the State introduced Officers H. G. Harrel and L. C. Bennett, who went to the scene and who had the opportunity to observe the appellant for some time thereafter; Mrs. Fannie Wooten, who had the opportunity to observe him on the day before when he and his wife were visiting in the Kemp home; and Mrs. Wesley Kemp, who had seen him in Jackson on the preceding Saturday. All of these witnesses testified that, in their opinion, the appellant was sane.

By proper instructions, the issue of insanity at the time of the killing was submitted to the jury, and by its verdict, the jury found that the appellant was sane. The warrant for this finding rests not upon the mere division in opinion alone. In addition the appellant told Miss Whitmore to 'call the law' and 'I just shot my wife.' He himself dialed for an ambulance. These statements and act were susceptible of the conclusion that he believed that he had done something wrong.

Appellant's principal contention revolves around alleged errors of the lower court (1) in indicting and trying him for murder; (2) in permitting the State to inquire about and introduce evidence as to other crimes; and (3) in denying his requested self-defense instructions.

In Reed v. State, 62 Miss. 405, it was recognized as the law that, if a man catches his wife in adultery with another man and then and there slays her paramour, the provocation is so great that it extenuates his crime from murder to manslaughter; but if he does not slay the adulterer on the spot, but afterward, when sufficient time has elapsed for passion to cool, the killing, instead of manslaughter, is murder. The above rule was applied in Rowland v. State, 83 Miss. 483, 35 So. 826, and the offense was reduced to manslaughter when Rowland caught his wife in adultery with another man, and in firing at her paramour, killed his wife. To the same effect is Cockrell v. State, 175 Miss. 613, 168 So. 617, where Cockrell, following his wife, without the slightest suspicion of unfaithfulness on her part, immediately killed her paramour when he discovered them in adultery. The opinion cited Hughey v. State, Miss., 106 So. 361, 362, and quoted the following excerpt therefrom: 'The mere fact alone that the appellant saw the deceased and her husband engaged in such conduct would not reduce the crime to manslaughter unless it had the effect of arousing the angry passions of the mind to such an extent as to overthrow reason.' [175 Miss. 613, 168 So. 620.] The Court also went on to say in its opinion: 'We do not mean to hold that the mere fact that an offended spouse comes upon the other in the act of adultery, and kills one or both of them, would reduce the crime from murder to manslaughter in all cases, nor would it be a license to murder. The facts and circumstances of each case are to be considered.'

In the Rowland and Cockrell cases,...