Freeman v. State, 44518

Decision Date04 December 1967
Docket NumberNo. 44518,44518
PartiesDavid Edward FREEMAN v. STATE of Mississippi.
CourtMississippi Supreme Court

Rex K. Jones, Hattiesburg, for appellant.

Joe T. Patterson, Atty. Gen., by Guy N. Rogers, Asst. Atty. Gen., Jackson, for appellee.


Appellant, David Edward Freeman, was indicted and tried for murder in the Circuit Court of Forrest County. He was found guilty of manslaughter and sentenced to serve twenty years in the state penitentiary. He appeals here, assigning as error that the court erred in excluding evidence offered by the defendant as to the character and reputation of the deceased and in excluding evidence offered to show the record of convictions of the deceased.

Appellant and deceased, George McSwain, Jr., were acquainted only slightly, if at all. Appellant drove to Hattiesburg from Bogalusa, Louisiana with his mother, girl friend and other members of his family on Labor Day 1966. They went by to see a friend, Olean Faulkner, who lived in a rooming house next door to the Star Cafe in Hattiesburg. Appellant testified that he went into the rooming house and told Olean that his mother wanted to speak to her and that he then went into the cafe. According to the testimony of a witness for the State, the defendant used profanity upon entering the cafe and was told by the proprietor that no cursing was allowed within the premises and that the defendant must leave. Appellant left the cafe, according to his testimony, and returned to his car which was parked in front of the rooming house. As he went out the door of the cafe he looked back and saw McSwain and the proprietor go out the back door of the cafe. The defendant, who admitted carrying a pistol under his shirt, further testified that he and his family were getting into the car and that he was standing beside it when McSwain kicked open the door of the rooming house and fired at him, whereupon he whirled and 'went to shooting right directly where the shot was fired' killing McSwain. Appellant's mother corroborated his version of the shooting and added that when McSwain, holding a rifle in his hands, came to the door of the rooming house and kicked it open, appellant's girl friend, who was in the car, called to McSwain and pled with him not to shoot into the car because her children were there.

The proprietor of the cafe testified that Olean was with the appellant when he came into the cafe and that he directed the appellant to leave due to his profane language. Anticipating trouble, he then went next door to the rooming house to get his rifle and while there heard three or four shots from the front of the building. Immediately after hearing the shots he ran down the hallway to the front of the rooming house and found McSwain, unarmed, lying in the doorway. He lifted McSwain, observed his condition, and laid him back down. In this process his hands became covered with blood and some of the blood was transferred to the rifle, which, according to his testimony, he returned to his room to get. He said that it was he, rather than McSwain, who brought the rifle to the front of the building, and that the rifle was never fired.

The testimony of other witnesses was in conflict as to whether there were three or four shots fired, although it is undisputed that appellant fired three times. There is no testimony, other than that of the proprietor, as to whether or not the rifle had been recently fired, though there is testimony that it was fully locaded. No cartridge hulls from it were observed at the scene; however, no search was made therefor.

The testimony is in hopeless conflict as to whether the deceased fried at all, and if so, who fired the first shot. The evidence does disclose, however, that sometime prior to this incident appellant had lived with Olean Faulkner and that at the time of the shooting Olean and deceased were living in the same rooming house. The evidence also establishes that there were no words spoken between appellant and the deceased, with the possible exception of appellant's words immediately prior to the shooting to the deceased, 'Man, yes, don't shoot in this car. I got my families in there.'

The assignment of error pertaining to the police record of the deceased is not well taken for the reason that it does not disclose any trait or characteristic of violence and, as such, is irrelevant and the court was correct in excluding th same.

The assignment of error relative to evidence of the decedent's reputation for peace and violence in the community in which he lived, in our opinion, is well taken. The principal question upon which there was conflicting evidence is 'who was the aggressor?' This is the heart and soul of the case as the defendant admitted the shooting, but proclaimed that he did so in his necessary self-defense. The general rule is that the decedent's reputation for peace or violence is not admissible in evidence unless the trait of violence is known to the person pleading self-defense. However, there is an exception to this rule which is as broad as the rule itself that where the question of 'who was the aggressor' is before the court, then this type of evidence is admissible. In 40 C.J.S. Homicide § 272 at 1223 (1944), the rule is stated:

In order to admit evidence of the violent character of deceased as bearing on the apprehension of danger by the accused, it must appear to have been known to him; consequently evidence of his knowledge of such character is admissible. As bearing on the question of who was the aggressor, however, evidence of the character of the deceased is admissible although the accused had no knowledge thereof. (Emphasis added)

1 Wigmore, Evidence section 63 at 467, 470-471 (3d ed. 1940), explains why such evidence is relevant to the issue of whether the deceased or the accused was the aggressor:

When the issue of self defense is made in a trial for homicide, and thus a controversy arises whether the deceased was the aggressor, one's persuasion will be more or less affected by the character of the deceased; it may throw much light on the probabilities of the deceased's action.

The reason for the hesitation, once observable in many courts, in recognizing this sort of evidence, and the source of much confusion upon the subject, was the frequent failure to distinguish this use of the deceased's character from another use, perfectly well settled, but subject to a peculiar limitation not here necessary,--the use of communicated character for violence to show the reasonableness of the defendant's apprehension of violence. As the purpose there is to show the defendant's state of mind, it is obvious that the deceased's character, as affecting the defendant's apprehensions, must have become known to him; i.e. proof of the character must indispensably be accompanied by proof of its communication to the defendant; else it is irrelevant. In the present use, this additional element of communication is unnecessary; for the question is what the deceased probably did, not what the defendant probably thought the deceased was going to do. The inquiry is one of objective occurrence, not of subjective belief. (Emphasis added)

In 26 Am.Jur. Homicide section 346 (1940), we find a similar explanation:

The necessity of the accused showing, as a foundation for the introduction of evidence of the violent and turbulent character of the deceased in support of his claim of self-defense, that he had knowledge at the time of the homicide of such bad character or reputation of the deceased, depends largely upon the purpose for which evidence is offered. If there is doubt whether the deceased was the aggressor, or doubt as to what was his purpose or intent in making any certain claimed or proved demonstration, the evidence of his bad character or reputation is admissible in support of the probabilities to be inferred therefrom and as tending to corroborate testimony for the accused as to the circumstances of the conflict, whether the accused had knowledge of such character or not. (Emphasis added)

Further authority for this position may be found in 1 A.L.R.3d 571, 601 (1965):

The courts have at times failed to distinguish the purpose of evidence of the turbulent character of the victim of a homicide or assault to corroborate testimony as to the circumstances of the encounter from the entirely different purpose of showing that, certain facts being conceded or found, the accused had reasonable cause to, and did, apprehend death or serious bodily injury, and was justified, on the ground of self-defense, in action as he did. However, where the court's attention has been called to the distinction, it has generally been held that evidence of the turbulent character of the deceased or party assaulted is admissible on a trial for homicide or for assault, as tending to corroborate testimony for the accused as to the circumstances of the conflict, whether the accused had knowledge of such character or not.

Moreover, the authorities in our own state are in accord with the general rules announced above. In Shinall v. State, 199 So.2d 251, 257 (Miss.1967), we said:

* * * Ordinarily the character or reputation of the deceased person is not involved as part of the issue in a murder case, and proof relative thereto is generally inadmissible.

There are exceptions to this general rule. The violent, dangerous and turbulent character of a deceased may be shown: * * * (C) where it is doubtful as to who the aggressor was at the time of the homicide * * *

See also Smith v. State, 75 Miss. 542, 23 So. 260 (1898), where we said:

'When there is evidence showing, or tending to show that the defendant acted in self-defense, under reasonable apprehension that his life was in danger, or that he was in great danger of bodily harm, because of some act of the deceased, done at the time of the killing, or if the evidence in respect to the homicide tending to prove the guilt of the defendant is wholly...

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