Fisher v. State

Citation150 Miss. 206,116 So. 746
Decision Date23 April 1928
Docket Number26938
CourtUnited States State Supreme Court of Mississippi
PartiesFISHER v. STATE. [*]

(En Banc.)

1. HOMICIDE. Where state depends partly on circumstantial evidence from which corpus delicti must be established condition of deceased's body, physical surroundings instruments with which crime was committed, and others tending to show-motive of robbery, are admissible.

Where a criminal prosecution depends, in part, upon circumstantial evidence, and where the corpus delicti must be established largely by circumstantial evidence, the condition of the body of the deceased, and its physical surroundings, the instruments with which the crime was committed, and others tending to show the motive of robbery, may be received in evidence, although such evidence does not directly connect the defendant with the crime.

2. CRIMINAL LAW. Evidence that defendant was found by using bloodhounds is admissible on proof that hounds were of pure blood, properly trained, and reliable; breeding of bloodhounds used to trace defendant may be shown by oral evidence; weight of testimony as to breeding of bloodhounds used to trace defendant is for jury.

Bloodhound evidence, that is to say, evidence of the fact that bloodhounds were used in trailing a track from the scene of the crime to where the defendant was found, may be received in evidence, where preliminary proof shows that the hounds were pure blood and properly trained, and were reliable upon the trail. The breeding of the dogs may be shown by oral evidence in such case, and, when so produced, its weight and worth are for the determination of the jury.

3. CRIMINAL LAW. To base error on refusal to permit questions to prosecuting witness on cross-examination, ruling must be obtained; to base error on refusal to permit questions to prosecuting witness on cross-examination, exception must be taken to adverse ruling.

Where questions are asked the prosecuting witness on cross-examination, the defendant must insist on a ruling, or it will be deemed waived; and, if ruling is adverse, must take an exception.

4. CRIMINAL LAW. Voluntary confessions are admissible in criminal prosecution; in criminal prosecution, acts of persons other than one to whom defendant confessed having no relation thereto are not admissible to show ill usage of defendant preceding confession.

Confessions voluntarily made are receivable in evidence against the person confessing, in a prosecution for crime, and the acts of other persons than the one to whom the confession is made not directed to the obtaining of the confession, and having no relation to the confession, are not admissible to show that the defendant had been ill used the night preceding the confession.

5. HOMICIDE. Where defendant, tried for murder, obtained change of venue, evidence that codefendant, who was separately tried and acquitted, had been lynched, held inadmissible.

In a trial for murder, where several persons are jointly indicted and where one had previously been tried, acquitted, and lynched immediately after the acquittal, it is not competent for the defendant to prove that fact in his trial, where he has obtained a change of venue, and the trial is in another county, and no showing of hostility or violence in such county is shown in the record.

6. HOMICIDE Instruction that, if defendant and others conspired and attempted to commit robbery, and one struck fatal blow, all would be guilty of murder, held proper.

In a prosecution of a number of persons for a murder, where there is evidence of an agreement to rob a store, at which the killing occurred, it is proper for the court to instruct the jury that, if the defendant and others shown to be in the conspiracy, pursuant to such agreement, attempted to commit a robbery, and in such attempt one of them struck the fatal blow, all are guilty, although there was no actual intent to kill on the part of the defendant, and although he may not have struck the blow.

7. CRIMINAL LAW. Court instructing once as to applicable principle need not repeat such principle in other instructions.

The court, in instructing the jury as to the law of a case being tried, is only called upon to give the legal principle applicable one time, and, where the court has given that principle, it is not required to repeat it in other instructions, although such instructions may be technically correct.

8. CRIMINAL LAW. Refusal to instruct that, if there were two reasonable theories from evidence, one showing defendant guilty, and other not guilty, to acquit, held not error.

Where a court has given the law applicable to the circumstantial evidence, it is not error to refuse an instruction announcing that, if there arises from the facts in the case two reasonable theories by one of which the jury should find the defendant guilty, and by the other to find him not guilty, then it is the duty of the jury to give the defendant the benefit of every reasonable doubt, and adopt that theory consistent with the innocence of the defendant, even though the jury believe from the evidence that the theory of his guilt is supported by the better and stronger evidence. This instruction has been condemned in numerous decisions of this court. Runnels v. State, 96 Miss. 92, 50 So. 499, and other cases cited.

HON. W. H. POTTER, Judge.

APPEAL from circuit court of Yazoo county, HON. W. H. POTTER, Judge.

John Fisher was convicted of murder, and he appeals. Affirmed.

Judgment affirmed.

Greek P. Rice, Jr., and Vincent J. Brocato, Jr., for appellant.

The court erred in permitting the state to introduce into evidence boots, rope, axe, hammer, safe-dial, and other appliances and devices identified by the witness, James Traynham, and offered and introduced as exhibits to his testimony. The exhibits to the testimony of James Traynham were inadmissible as evidence, for several reasons. These exhibits could have no possible place as facta probanda. They were assuredly not part of the res gestae, and these facts threw no light on the solution of the question as to who killed Grover C. Nicholas. The admission and refusal to exclude such testimony was moreover highly calculated and likely to incite the minds of the jury to passion and prejudice. The court presumably admitted the testimony under the theory that the prosecution had the right to show and exhibit circumstances and marks of violence. But clearly this was error for not only did the state fail at that time to connect the defendant with the crime, but failed utterly and entirely not only at that time but later, to connect the defendant with any crime whatsoever. These circumstances threw no light on the identity of the murderer of Grover C. Nicholas, and this is the true test of the relevancy and competency of such testimony. Harper v. State, 83 Miss. 402, 35 So. 572; Cumberland v. State, 110 Miss. 521, 70 So. 695. There can be no dispute as to its purpose, and the effect of such testimony is equally apparent. It was highly prejudicial, entirely erroneous, and constitutes reversible error in a cause based on suspicion and supposition. These instruments neither tended to prove nor to disprove any matter in issue and for that reason were inadmissible, and it was error to admit same. Russell v. State, 20 Ala.App. 68, 101 So. 71; Wigmore on Evidence, secs. 1157-1158.

The court erred in permitting the witness, Bob Gant, to testify with reference to particular actions of his bloodhounds, before laying proper and legal predicate for same. This testimony when properly introduced has a telling effect upon the jury. The credibility given to such in this instance must have been great and weighty. The only proof as to the pureness of blood and breed of the dogs used was the testimony, viva voce, of the witness Gant. He could not have known upon whose trail he was placing the bloodhounds for he did not know where he put them on anybody's trail. In the absence of this the testimony was inadmissible and the court was in manifest and grievous error in permitting such evidence (if such it could be called) in going to the jury. Scott v. State, 108 Miss. 464, 66 So. 973; Carter v. State, 64 So. 215; Spears v. State, 92 Miss. 613, 46 So. 166; Harris v. State, 143 Miss. 102, 108 So. 446; 1 Wigmore on Evidence, sec. 177.

The cause presented here if anything is infinitely stronger than the facts as presented in the Harris case, supra. Surely there was no testimony in this cause that these aged men hunters were subject to registration. This proof not only fails to meet the test with reference to breed, blood, age, and experience but there is "an entire absence of proof in this cause that the track from which the trail was started was made by the persons who committed the crime." Spears v. State, 92 Miss. 613, 46 So. 166. Under the rule in the Harris case, Spears case, Scott case, Carter case, supra, it was manifestly grievous and reversible error to permit such testimony to go to the jury with the improper predicate for its admission.

The court erred in refusing to permit appellant to cross-examine witness, R. A. Frazier, as to previous testimony given in prior trials. The appellant had a right to cross-examine the witness, R. A. Frazier, as to testimony given in previous trials at Clarksdale. The issues there were admittedly and indisputably the same as the issues in the instant cause. Possibly the testimony sought to be elicited was collateral in nature. There exists no inhibition against this at law. Wigmore on Evidence, sec. 1006; See Note, Hitchcock v. Moore, 14 A. S. R. 481.

The court erred in permitting witness, Marshall Jones, to testify to an alleged conversation given by appellant to the witness and offered and introduced over appellant's objection. Assuming that the testimony was...

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    • United States
    • Mississippi Supreme Court
    • May 28, 2009
    ...it from exercising its discretion in settling questions of veracity under proper instructions by the court. Fisher v. State, 150 Miss. 206, 227-28, 116 So. 746, 750-51 (1928) (emphasis added)(citing Runnels, Roux, Saucier, Wiley, and Brady); cf. Williams v. State, 163 Miss. 475, 482, 142 So......
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