Fore v. State

• Court: Mississippi Supreme Court
• Writing for the Court: WOODS, C. J.
• Citation: Fore v. State, 75 Miss. 727, 23 So. 710 (Miss. 1898)
• Decision Date: 23 May 1898
• Parties: JOHN P. FORE v. THE STATE OF MISSISSIPPI

23 So. 710

75 Miss. 727

JOHN P. FORE v. THE STATE OF MISSISSIPPI

Supreme Court of Mississippi

May 23, 1898

March 1898

FROM the circuit court of Lincoln county HON. ROBERT POWELL Judge.

John P Fore, the appellant, was indicted, tried, and convicted for the murder of one Erastus Matthews, and, having been sentenced to the penitentiary for life, appealed. The evidence showed that the parties had been enemies for years and each had made threats to kill the other; but the court below, on motion of the state, ruled out the evidence showing the threats made by Matthews. They were farmers, and resided within three or four miles of each other. Fore's eyesight was defective, and the testimony showed, or tended to show that he was unable to distinguish one person from another, except when he was very close to them. On the day of the homicide, Fore, with the assistance of a farm hand and some members of his family, had loaded a wagon with seed cotton from a cotton house, and had directed the farm hand to drive the wagon from the place where it was loaded to the point to which it was to be carried. The wagon proceeded, but had gone only a short distance when it was stopped, and the driver of the wagon, who had met Matthews at the junction of two roads, was conversing with him about trading oxen. Matthews was in a buggy, and had stopped in front of the driver's team. Fore came on from the cotton house, and, finding the wagon stopped, the colloquy--a part of which is set out in the first instruction for the state, and which is referred to in the opinion--took place. The other facts are stated in, or are clearly inferable from, the opinion of the court.

The first and fifth instructions for the state, referred to in the opinion of the court, are as follows:

"1. If you shall believe from the evidence in this case, beyond every reasonable doubt, that Fore had intended to kill Matthews, and that being armed with a concealed weapon, which he had provided to shoot Matthews with on the first opportunity, he followed the wagon being driven by Gillman Cook from the cotton house down to the road where Matthews was, and that the wagon was stopped there, and that Matthews was talking to Cook about the oxen, and that Fore came up and told Cook to go ahead, and that Fore asked Matthews what he had to do with it, and that Matthews said to Fore it was not any of his damned business, and Fore said: 'I must be mistaken in the man; who is that?' and that Matthews replied: Rass Matthews, by God; you know who it is, ' and Fore said: 'No, I did not know who it was, ' and that Matthews replied: 'You are a damned liar; you do know who it is, ' and that then Matthews was sitting erect in the buggy looking at Fore, and as he made the last remark he suddenly turned in his seat, from Fore, and threw his right hand behind him and kept it there, and made no other motion, or did nothing else, and that Fore began to shoot, and shot three or four times, and killed Matthews, then such killing is not justifiable on any ground whatever, and you should find defendant guilty of murder."

"5. If you believe from the evidence, beyond all reasonable doubt, that Fore had threatened to kill Matthews, and being armed with a deadly weapon, which he had provided and intended to use in a difficulty with Matthews by shooting him with it, and that he began the difficulty, in which he shot and killed Matthews, then he is guilty of murder, even though you should believe that Matthews cursed him and called him a damned liar and threw his hand behind him just immediately before the shooting, and it will be your sworn duty to so find, for a killing under such circumstances is not justifiable or excusable on any ground whatever."

The fourth and sixth instructions refused appellant, and to which the opinion refers, are in these words:

"4. The court instructs the jury for the defendant, that if they believe, from the evidence in this case, that Matthews, while seated in his buggy, and when Fore stated to him that he did not know him, said, in an angry and rude tone, to Fore, 'You are a damned liar' or 'a God damned liar, ' and immediately threw his hand behind him in a threatening and menacing manner, as though he intended to draw a weapon, and that his acts and conduct were such as to engender in the mind of Fore a reasonable belief that Matthews was armed, and intended to draw a pistol and shoot Fore, and that, under such circumstances, Fore shot Matthews, then Fore should be acquitted."

"6. The court instructs the jury that if they believe, from the evidence, that Fore and Matthews were enemies, and that, when they met at the time of the homicide, Matthews, in a loud and angry tone of voice, called the defendant a 'damned liar' or a 'God damned liar, and immediately threw his hand behind him in a threatening and menacing manner, as though he intended to draw a pistol, and that his acts and conduct were such as to engender in the mind of Fore, and did engender in the mind of Fore, a reasonable belief that he [Matthews] was armed with a pistol, and was attempting to draw it to shoot Fore, when Fore was making no assault on him, and that Fore shot him under such circumstances, then Fore is justified, even if you should believe Matthews was unarmed at the time."

Reversed and remanded.

A. C. McNair, for appellant.

The court improperly admitted in evidence the photographs of the scene of the difficulty, and the testimony in reference thereto. Section 26 of the constitution of 1890, provides that, in all criminal prosecution, the accused shall have the right to be confronted by the witnesses against him. By the admission of the photographs and the explanatory testimony, appellant has been deprived of this constitutional right, and was seriously prejudiced in the trial of his case. The photographs were made and the evidence procured without his knowledge or consent, and not in his presence. An inspection of the scene by the court and jury, had in appellant's absence and without his knowledge, would have been violative of the accused's constitutional rights. In the case of Foster v. State, 70 Miss. 755, speaking on this subject, this court says: "The constitutional right guaranteed to every person charged with crime, to be confronted by the witnesses against him, will require a production of all evidence from all witnesses, animate or inanimate, in his presence, but not alone must all evidence be had in the presence of the accused, but it likewise must be had and taken in the presence of the court trying the case." Foster's case held, § 2391, code of 1892, authorizing views by juries in the absence of the accused, to be unconstitutional. The section was amended [Laws 1894, p. 50] by requiring that, in criminal trials, inspections must be had before the whole court and in the presence of the accused, and the production of all evidence from all witnesses or objects, animate or inanimate, must be had in his presence. The taking and introduction of photographs was a production of evidence from inanimate objects, and is expressly required to be taken in the accused's presence.

The evidence disclosed that the Ratliffs, witnesses for the state, in company with a photographer and one of the attorneys for the prosecution, in the absence of the accused, pointed out the alleged location of Fore and Matthews, and that the pictures were taken, and show the scene and situation of the parties as made know by said witnesses. The statute expressly prohibits this. But, aside from the statute, the evidence would not be admissible. The photographs, at best, are but secondary evidence, and if there could not be an actual view of the scene by the jury in the absence of the accused, surely it cannot be said that the scene can be imprinted on paper, in the absence of the accused, and then be presented to the jury, and the constitutional rights of the accused in this manner frittered away by indirection.

The first instruction for the state is erroneous for several reasons. It does not follow that because Fore threatened to kill Matthews, and because he was armed with a concealed deadly weapon which he had provided to shoot Matthews with on first opportunity, and because he followed the wagon driven by Cook to where Matthews was, that he was precluded from defending himself. The instruction omits any reference to the state of Fore's mind--whether he had the murderous purpose formed at the time of the difficulty. It tells the jury that if Fore was armed with a deadly weapon which he had provided to shoot Matthews with on first opportunity, he is guilty of murder, although he may have provided the weapon to shoot Matthews only in defending himself from the assaults of Matthews in a difficulty which he did not provoke, but which was provoked by Matthews. The whole scope of this charge is to refer the killing back to the procuring of the weapon; but it omits to state that it must have been procured by Fore with the purpose of using it to kill, or to do some great bodily harm to Matthews in a difficulty which Fore intended to provoke, and which he did provoke, and of its use in pursuance of felonious design. In order to deprive the defendant of the right of selfdefense, he must have been the originator of the difficulty; he must have entered it armed he must have procured the pistol with the purpose to kill or do great bodily harm to Matthews in a difficulty he intended to provoke, and which he did provoke, and he must have used the weapon and killed Matthews in pursuance of that felonious design. King v. State, 74 Miss. 576; Prine v. State, 73 Miss. 838; Hunt v. State, 72 Miss. 413; Thomas v. State, 61 Miss. 60; Kerr v. State, 17 So. 328 [Ala.]; Hornsby v. State, 94 Ala. 55 [10 So. 522]; Domingues v. State, 94...