Foster v. State

• Citation: 12 So. 822,70 Miss. 755
• Court: United States State Supreme Court of Mississippi
• Decision Date: 17 April 1893
• Parties: HENRY R. C. FOSTER v. THE STATE

12 So. 822

70 Miss. 755

HENRY R. C. FOSTER v. THE STATE

Supreme Court of Mississippi

April 17, 1893

FROM the circuit court of the second district of Yalobusha county HON. EUGENE JOHNSON, Judge.

Appellant has been convicted of the murder of John B. Morgan, and sentenced to life imprisonment. The facts of the case, so far as necessary to an understanding of the several points passed on by the court, are stated in the opinion.

Reversed.

A. J McLaurin, for appellant.

1. Where there is any evidence which, if believed, would establish an overt, hostile act on the part of deceased at the time of the killing, it is competent to show that when the deceased and accused last met, the former had made a murderous assault upon the latter, and afterwards threatened to take defendant's life. Guice v. State, 60 Miss. 714. Where such overt act is shown, the previous difficulty may be given in evidence--not a part of it but all of it.

An apprehension of the necessity to slay may be created by particular preceding acts, reasonably connected in time or occasion with the fatal rencounter. Wharton on Homicide (2d Ed.), §§ 613, 617.

The character of the deceased for violence, as well as his animosity to defendant, as indicated by words and actions then and before, are admissible. Ib., 607-618; Cotton v State, 31 Miss. 504. The defendant is to be judged by his own lights. Wharton on Homicide, 610. See also Chase v State, 46 Miss. 683.

2. It was error to admit testimony of the medical expert to show the position the arm of deceased must have been in when he was shot in the body. This could be as well known to others as to professional experts, being a matter about which the lay, or uneducated, mind is capable of forming a judgment. Milwaukee Railway Co. v. Kellogg, 94 U.S. 469. The jury, hearing such testimony, might conclude that it was bound by it, and would give no further consideration to the question. As it cannot be said that this error did not influence the jury to defendant's prejudice, a reversal must follow. Jackson v. Jackson, 28 Miss. 674.

3. The visit to the scene of the killing and inspection of the car was a part of the evidence of the state. It was introduced in the absence of the accused, and thus he was deprived of a constitutional right. The fact that he was excluded from the car by the mistake of the sheriff makes no difference. If one step in the trial can be taken in his absence, why not all? On this point see Finch v. State, 53 Miss. 363.

Coleman, Coleman & Coleman, on the same side.

1. The overt act of deceased is the main, the only, question at issue. The appellant and his witnesses say that, as he came up the aisle of the car, deceased saw him, and threw his hand back as if to draw a weapon. No witness for the prosecution denies this, but the medical expert is permitted to give an opinion as to the position of the arm and hand of deceased when shot, and this opinion is allowed to contradict the witnesses who swear as to facts. The expert is permitted to substitute his opinion for that of the jurors--in fact, to determine the guilt or innocence of accused by his mere opinion. Expert testimony is never allowed to prove a matter of common experience and knowledge. On this subject, see 7 Wend., 73; 55 Ark. 593; 17 S.W. 1071; 93 Cal. 445; 62 Ib., 303; 39 N.Y. 245; 82 Ala. 32; 5 Ohio (C. C.), 597; 1 Denio, 311; 23 Tex. 331; 24 N. J. Law, 352; 71 Ind. 66; 29 Mich. 4; 78 N.Y. 611; Dillard v. State, 58 Miss. 368. The same objection exists to the testimony of the witness, McDade, as to his opinion as to a matter of common knowledge. 24 Ark. 255; 10 Ga. 529; 59 Ala. 92; 29 Ohio St. 171; 45 Iowa 246.

2. The court erred in excluding evidence of an assault made by the deceased on defendant a short time previous to the homicide. It was important to determine the exact state of defendant's mind at the time of the killing, since murder is essentially the creature of intent. Defendant claimed, and he had a right to show, that there was no malice in his conduct. The reason of the rule admitting evidence of previous assaults and threats is well stated in Russell v. State, 11 Tex. App., 288. See also 27 Ib., 768; 21 Ib., 420; 24 Kansas, 68; 22 Ib., 226; 92 Cal. 511; 37 Ib., 676; 15 Ib., 476; 62 Ib., 303; 6 Bax. (Tenn.), 454; 32 La. Ann., 1084; 21 Ind. 26; 37 Ib., 62; 93 U.S. 465; 8 Bush, 481; 80 Ky. 32; 19 Vt. 121; Guice v. State, 60 Miss. 714; Spivey v. State, 58 Ib., 858; Newcomb v. State, 37 Ib., 383; Johnson v. State, 54 Ib., 430; Johnson v. State, 66 Ib., 189; Hawthorne v. State, 61 Ib., 749.

3. The court erred in allowing the jury to view the car in the absence of defendant. It was his right to be confronted by the witnesses for him. On this point we refer the court to Kerr on Homicide, § 346; 30 Ark. 328; 24 La. Ann., 46; 5 Neb. 31; 70 Cal. 193; 68 Ib., 630; 68 Mo. 202; 4 Hum. (Tenn.), 289.

Frank Johnston, attorney-general, for the state.

1. Evidence as to the merits of the former difficulty was properly excluded. It is competent to prove, in connection with communicated threats, or an overt act, that the relations between the parties were not friendly, that they were at feud or that they had had previous difficulties or quarrels, as going to show the seriousness of the threats. But the inquiry cannot be extended into an investigation of the merits of previous difficulties. Otherwise, the inquiry would be interminable. It is immaterial which of the parties was in the right. The only thing to be proved is the fact of the enmity. See Commander v. State, 60 Ala. 1; Gray v. State, 63 Ib., 66; State v. Hannett, 54 Vt. 83; Bishop's Crim. Pro., § 617. Where such evidence has been permitted, it is on the theory that the two difficulties are so immediately connected as that the former difficulty is part of the res gestae. Keene v. State, 50 Mo. 357; Haller v. State, 37 Ind. 57; Wharton's Crim. Ev., § 753. In the case at bar, the prior difficulty was an isolated fact, and wholly inadmissible. Bishop's Crim. Pro., § 609.

2. Section 2391, code 1892, authorizing the jury to visit the scene of a crime, says nothing about the presence of the prisoner. The authorities are divided as to the right of the accused to be present. I refer the court to the argument of associate counsel, and his citation of authorities, only citing, in addition, People v. Bonney, 19 Cal. 427. The real inquiry seems to be whether any evidence was given in the absence of the prisoner.

In the case at bar, the defendant was present during the whole time, with the exception of about one minute. The momentary detention at the door was immaterial, and it seems to be trifling with the substance and playing with the shadow to argue that this was a prejudicial irregularity. I submit that the only right of the prisoner is that the jury shall not be tampered with.

3. There can be no error in the testimony of the medical expert as to the position of the right-hand and arm at the time of the second shot. The fact that the arm was then raised against the body stands as a physical fact in the case. The inquiry is an open one as to where the arm was when the first shot was fired. This testimony did not affect that question. Again, his statement as to the course and range of the ball was not expert testimony. It was merely a description of the direction of the bullet. Any witness who had made the examination could have made the same statement. The testimony could not have changed the facts of the case. It bore only on the uncontroverted physical facts. If there was error in this respect, it was technical and not prejudicial. If incompetent testimony be introduced to prove a point already established, and on which there is no conflicting evidence, the verdict will not be disturbed. Graves v. Railroad Co., 6 How. (Miss.), 548; Fore v. Williams, 35 Miss. 533; Hand v. Grant, 5, Smed. & M., 508; Gerard's Case, 50 Miss. 147. The above reasoning applies also to the testimony of the witness, McDade.

C. B. Mitchell, on the same side.

1. It was not error to refuse evidence of the details of the former difficulty. Proof was allowed of violent threats against the life of defendant, and that deceased had violently assaulted him a week or two before the killing. This is as far as the court could go; and, indeed, it would not have been error to exclude all the evidence as to the previous assault, as the evidence shows a case of assassination--that Judge Morgan never saw defendant when the latter shot, but was looking in the other direction. It was proper to exclude evidence of the particulars of the difficulty. Sanders v. Commonwealth, 18 S.W. (Ky.), 528; People v. Thompson, 92 Cal. 506; Rutledge v. State, 88 Ala. 85; 84 Ib., 424; 74 Ib., 18, 9; 63 Ib., 66; 62 Ib., 224. Moreover, the defendant got the full benefit of the evidence that deceased had assaulted and beaten him.

2. The failure of the accused to be present when the jury inspected the car was not error. The decisions as to this are divided but that seems to be the better doctrine. He cannot, if present, ask or answer any questions, or in any way interfere with the acts, operations or conclusions of the jury. He would be a mere spectator. State v. Ah Lee, 8 Oregon, 214; State v. Morgan, 15 Ib., 262; 17 Ib., 635. The jury decides on the evidence, not upon the view. 49 Cal. 609; State v. Adams, 20 Kansas, 311. These decisions were under statutes similar to ours, and hold that by the jury visiting the scene of the offense, the place of trial is not temporarily transferred from the court-house. The jurors are conducted in a body while thus absent. This means that the place of trial is unchanged, that the jury is temporarily removed, just as when the case is finally submitted to the jury and it retires for deliberation. There is only a...