Foster v. State

• Decision Date: 09 March 1908
• Docket Number: 13,026
• Citation: 45 So. 859,92 Miss. 257
• Court: Mississippi Supreme Court
• Parties: SCOTT FOSTER v. STATE OF MISSISSIPPI

45 So. 859

92 Miss. 257

SCOTT FOSTER v. STATE OF MISSISSIPPI

No. 13,026

Supreme Court of Mississippi

March 9, 1908

FROM the circuit court of Adams county, HON. MOYSE H. WILKINSON Judge.

Foster appellant, was jointly indicted with two others for the murder of Luther Bell. A severance was had and appellant separately tried, convicted and sentenced to suffer death and appealed to the supreme court.

The decedent, Luther Bell, while traveling after dark along a private road, in a buggy with his wife and child, was shot from ambush and killed, the assassins escaping without being recognized. Early the next morning several persons found that the grass behind a clump of pine bushes, near the road where the homicide occurred, showed indications of having been trampled upon, and leading from the place were tracks of two persons, one of whom wore broad shoes, and the other pointed shoes. These tracks were distinct and easily traced and led to a place where a mule had evidently been standing hitched to a tree. The broad shoe-prints could not be traced further but tracks of the mule and those made by the pointed-toed shoes were followed by the searchers a considerable distance beyond to the dwelling house of one Scott Wilkins, a negro and thence to the home of appellant. There was evidence to show that the appellant wore sharp-toed shoes, and had them on when arrested two days after the homicide; that Henry Wilkins, another negro and an associate of Foster, wore shoes which would make broad tracks. The state relied largely on the testimony touching the tracks and the character of the shoes, although there was other incriminatory evidence of guilt. The state offered the testimony of several witnesses to the effect that while they were following the tracks made by the sharp-toed shoes, Scott Wilkins rode up and, without inquiry on their part, said to them, "that is son's track," referring to appellant whom he called son. The admission of this testimony was objected to by appellant, but the objection was overruled.

The opinion of the court contains a further statement of the facts.

Reversed and remanded.

W. C. Martin, for appellant.

It was error in the court below to admit in evidence, over-appellant's objection, testimony as to the alleged statement of Scott Wilkins in regard to the tracks. The jury had heard the indictment, collocating the names of appellant and Scott Wilkins; and they knew, from the evidence, that the two were closely related by kinship and by association. It was apparent to the state that, with these facts known to the jury, any act or declaration on Scott Wilkins' part, in any way incriminatory of appellant, would operate most powerfully against the latter, and go very far towards a conviction. The alleged declaration of Scott Wilkins was made after the homicide. If the theory of the state, shown by the joint indictment of appellant and Scott Wilkins and another, that the three conspired to kill deceased was correct, certainly the conspiracy terminated with the homicide. The only possible ground upon which the declaration of Scott Wilkins could be admissible against appellant was that the two were co-conspirators. And, as the conspiracy, if one existed, must have terminated with the killing, the admission of the alleged statement by Wilkins, made the ensuing day, was clearly error. 8 Cyc., 679; Brown v. State, 30 Miss. 656; Simmons v. State, 61 Miss. 243; Gillum v. State, 62 Miss. 547.

In the case of Browning v. State, supra, the evidence tended to show assassination of deceased, and the guilt of the defendant was attempted to be proved solely by circumstances. The trial judge permitted evidence to be introduced by the state as to the acts and declarations of one who was alleged to be a coconspirator with the defendant, Browning; these acts and declarations being made after the death of the deceased. The judgment of the trial court was reversed and the cause remanded for new trial for the error, among others, in admitting this testimony.

The alleged declaration by Scott Wilkins would of course be competent evidence against him, but the question here is whether it was competent against a third person, the appellant, who was not present when it was supposedly made.

It must be borne in mind that this alleged statement was not of a trivial nature; it bore heavily upon the question before the jury. But for its wrongful admission in evidence, who can say that the verdict of the jury might not have been in appellant's favor?

R. V. Fletcher, attorney-general, for appellee.

Learned counsel for the appellant bases his hope of reversal upon the alleged errors of the trial court in admitting testimony before the jury as to a remark made by Scott Wilkins, and to certain acts on his part, in trying to influence the searchers to abandon their examination of the tracks. There are only two items of evidence which were admitted over appellant's objection: Wilkins' alleged statement that the tracks were appella...