Floyd v. State

• Decision Date: 08 May 1933
• Docket Number: 30489
• Court: Mississippi Supreme Court
• Parties: FLOYD v. STATE

148 So. 226

166 Miss. 15

FLOYD v. STATE

No. 30489

Supreme Court of Mississippi

May 8, 1933

Division B

1 HOMICIDE.

Defendant's guilt of assault and battery with intent to murder his wife held for jury.

2. CRIMINAL LAW.

In prosecution for assaulting wife, admitting, evidence of four prior assaults on wife and prior treatment disconnected with crime charged held prejudicial error.

3 HOMICIDE.

In prosecution for assaulting wife, wife's testimony regarding what happened when defendant returned home on day of alleged assault held admissible to show defendant's state of mind and motive.

4. CRIMINAL LAW. Homicide.

In prosecution for assault on wife, wherein defense was that wife was hysterical and had inflicted wounds in effort to commit suicide, evidence of discord and other assaults by defendant was not admissible to show condition of minds of parties.

5. CRIMINAL LAW.

Generally defendant must be tried alone for offense for which he is indicted.

6 HOMICIDE. Witnesses.

In prosecution for assault on wife, wherein defandant claimed wife inflicted wounds on self, mental condition of wife was admissible only to affect her credibility or show disposition to commit suicide.

7. CRIMINAL LAW.

Evidence of another crime than one charged is not admissible unless there is some connection between offense being charged and other offense.

8. CRIMINAL LAW.

In prosecution for assault excluding physician's professional opinion on whether, if one blow is inflicted, second could not have been self-inflicted, held error.

9. CRIMINAL LAW.

Witness to testify as expert, need not be infallible or possess highest degree of skill; it being generally sufficient that he possess peculiar knowledge respecting matter involved not likely to be possessed by layman.

10. CRIMINAL LAW.

In prosecution for assault, physician, who had made study of human body a profession and had considerable practice, could testify as expert on whether injuries may have been self-inflicted.

11. CRIMINAL LAW.

Where court sustains objection to improper argument and instructs jury not to consider it, supreme court will not reverse unless counsel requests, before jury returns verdict, that jury be discharged.

12. CRIMINAL LAW.

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

C. N. Floyd was convicted of assault and battery with intent to kill and murder wife, and he appeals. Reversed and remanded.

Reversed and remanded.

M. Ney Williams, of Raymond, Howie & Howie, and R. T. Hilton, all of Jackson, for appellant.

It is the right, as stated by this court in numerous cases, some of which we will refer to hereafter, that every person on every charge, even a charge of assaulting his wife, has the right to be tried by an impartial, unprejudiced and competent jury of the charge on which he is indicted, and on that charge alone.

After one offense is proved the prosecution should not have the liberty of the wind to "blow where it listeth."

Whitlock v. State, 6 So. 237.

In this case the state was not only permitted to prove that on three former occasions the appellant had struck his wife and whipped her on one occasion with the razor strap, on one occasion with his hand and on another occasion with a stick, but also went into all the details of each of the charges as fully as they would have been permitted to do if each had been a separate offense for which he was being tried.

This was an independent, disconnected assault.

It is a general rule of law that evidence must be confined to the point in issue, and that in criminal cases, especially, the facts laid before the jury should consist exclusively of the transaction which forms the subject of the indictment.

Raines v. State, 33 So. 19; Roscoe Cr. Ev. (6th Ed.) 85-95; 1 Greenl. Ev. pt. 2, c. 1; Herman v. State, 75 Miss. 340, 345, 22 So. 527; Farvis v. People, 129 Ill. 521, 21 N.E. 821, 4 L.R.A. 582, 16 Am. St. Rep. 283; Collier v. State, 64 So. 373; Raines v. State, 81 Miss. 489, 33 So. 19.

It is a well settled rule that upon the trial of a defendant for one offense the proof of an incident unconnected with the crime which does not tend to show purpose, intent or the other exceptions is inadmissible.

Keel v. State, 97 So. 521; Baker v. State, 97 So. 901; Ingram v. State, 39 Ala. 247; Moore v. State, 10 Ala.App. 179; Gassenheimer v. State, 52 Ala. 313; Cochran v. State, 30 Ala. 542; Wickard v. State, 109 Ala. 45; Dennison v. State, 17 Ala.App. 674; State v. Crowley, 13 Ala. 172; Johnson v. State, 95 So. 583; Baygent v. State, 110 So. 114; McLin v. State, 116 So. 533; Willoughby v. State, 122 So. 757; 16 C. J., p. 589; King v. State, 66 Miss. 502, 6 So. 188; Dabney v. State, 82 Miss. 252, 33 So. 973; Collier v. State, 106 Mass. 613, 64 So. 373; Hurd v. State, 137 Miss. 178, 102 So. 293; Parkinson v. State, 145 Miss. 237, 110 So. 513.

The appellant was charged with assault and battery with intent to kill with a deadly weapon and testimony should not have been permitted to be injected into this case the sole and only purpose of which was to place upon the appellant, not only the burden of defending the charge, but to defend his whole married life, so as to meet these charges of cruel treatment of his wife. This could have no other effect in the trial of this cause than to prejudice the jury against the appellant, and clearly such proof would necessarily, and did necessarily prejudice the mind of the jury in the trial of this case.

It is the duty of counsel to make the most of the case which his client is able to give him; but counsel is out of his duty and his right, and outside of the principle and object of his profession, when he travels out of his client's case and assumes to supply to deficiencies.

Walton v. State, 112 So. 601.

In this case the character of the appellant was not put in evidence. The argument of Mr. C. B. Greaves, as shown by the quotations in the Special Bill of Exceptions, although the same was objected to and the objection sustained by the court and the jury instructed not to consider the same, yet this argument which was continually objected to and objection sustained, degenerated into a wanton abuse and unauthorized license.

The latitude allowed to an attorney in performing the important duties he owes to his client and the public does not permit his argument to degenerate into wanton abuse and unauthorized license, and we concede that attorneys have the privilege of making their argument so far as it remains within the limits of the testimony, "but that freedom does not extend either to the statement or the assumption or to commenting on facts not in evidence to prejudice of adverse parties."

Perkins v. Guy, 55 Miss. 153; Cavanah v. State, 56 Miss. 299; Cross v. State, 68 Ala. 476; Wolffe v. Minnis, 74 Ala. 386; State v. Smith, 75 N.C. 306; Hampton v. State, 40 So. 544; Bufkin v. State, 98 So. 455.

There was not an actual proof of venue.

There is no proof to show what is meant by the statement "in or near Flora, Madison County, Mississippi." This proof is too indefinite.

Smith v. State, 27 So. 868; Ellzy v. State, 70 So. 579; Ussery v. State, 123 So. 854.

A court cannot take judicial knowledge that from the indefinite statement that the assault was made at or near Flora, Madison County, Mississippi, was within the county of Madison and the State of Mississippi.

W. H. Hughes, and R. T. Hilton, of Jackson, for appellant.

The different contradictory statements of Mrs. Floyd touching the instrument with which she was injured and the party who injured her, the ax handle, the finger prints taken from the ax handle and the finger prints of the appellant, so completely impeach and wholly discredit her sworn evidence in the case, that the court will undoubtedly hold that her testimony, as found in the record, is wholly unreliable and insufficient to uphold the verdict of the jury.

Harmon v. State, 142 So. 473; Sykes v. State, 92 Miss. 247, 45 So. 838.

The appellant, in the case at bar, testified and denied every material part of the evidence given by Mrs. Floyd. Mrs. Floyd was not corroborated on a single material point testified to by her. On the other hand, the appellant was strongly corroborated by every witness in the case, both for the state and the accused.

The refusal of the trial court to allow the appellant to cross-examine Dr. Sigrest with reference to the effect of the blows produced on Mrs. Floyd, and whether or not Mrs. Floyd could have inflicted the blows herself, is assigned as error of the most glaring nature. It is true that Dr. Sigrest stated that he was not a specialist on mental or nervous troubles but he said he had been a general practitioner for thirty years, and that he had treated Mrs. Floyd on various occasions for hysteria when she was showing considerable symptoms of hysteria, and that he had also treated people generally for wounds and injuries. This certainly showed legal qualifications to testify as an expert. It is not necessary to show infallible knowledge or the highest degree of skill, in order to testify as an expert.

King v. King et al., 134 So. 827.

Whether Dr. Sigrest was an expert witness or not, the appellant would have had a perfect right to have subjected Dr. Sigrest to a rigid cross-examination, by asking just such questions as were asked and refused to be answered by the court.

When a witness is introduced on the stand, it is for the purpose of telling the whole truth of the matter relevant to the issue; and his whole testimony, whether given in response to interrogatories propounded by the party introducing him, or the other, is the testimony of the former. And hence the right of cross-examination, being allowed for the purpose of eliciting the whole truth from...