Fulton v. State, 37617
| Decision Date | 09 October 1950 |
| Docket Number | No. 37617,37617 |
| Citation | 209 Miss. 565,47 So.2d 883 |
| Parties | FULTON v. STATE. |
| Court | Mississippi Supreme Court |
Jno. S. Holmes, Yazoo City, for appellant.
John W. Kyle, Atty. Gen., Geo. H. Ethridge, Asst. Atty. Gen., for appellee.
Appellant was convicted of the murder of James Pearce, and sentenced to the penitentiary for life. He appealed to this Court, where he assigns only one error, i. e., 'the action of the trial court in refusing to admit the testimony of Melvina Greer, Irene Oliver, Callie Luster, Beatrice Smith and Alva James Peyton as to the statements made by deceased on his death bed to the effect that Eugene Thurmond had shot him.'
Engene Thurmond was also indicted, separately, for the murder of James Pearce, but was permitted to plead guilty of manslaughter, receiving a sentence of three years in the penitentiary.
There is a confession, in the record, allegedly made by appellant in which he admitted that he killed the deceased, without which there was probably no sufficient proof of his guilt. On the witness stand he repudiated the confession, claiming that Eugene Thurmond was the slayer, and that he was forced to make the alleged confession by Thurmond, who threatened to kill him, if he refused to acknowledge his having shot Pearce. See Johnson v. State, 107 Miss. 196, 65 So. 218, 51 L.R.A., N.S., 1183; Whip v. State, 143 Miss. 757, 109 So. 697; Draughn v. State, 76 Miss, 574, 25 So. 153. This testimony was not contradicted, and it may be said to appear that appellant was laboring under the duress of this fear, when he made his statement later to the owner of The Grille and to the officers, who, themselves, were not guilty of any force, threats, or promises to induce it. Moreover, the effect of the original threat of Thurmond was not shown to have been removed at the time. Whitley v. State, 78 Miss. 255, 28 So. 852, 53 L.R.A. 402.
Thurmond was a psychopathic, paranoid type with homicidal tendencies, which is uncontradicted in the record. Thurmond himself told several people after his arrest that he shot Pearce, although seeking also to implicate the appellant. The purported confession of the latter followed the communication to him, by the officers, of Thurmond's charges against him.
Objection was made to the admission of the confession, but it was overruled. Its admission is not assigned as error here. However, if the alleged dying declaration of the deceased had been admitted, as will later be discussed, appellant's repudiation of the confession would have been corroborated, as well as his claim that it was made under duress.
The three men, Thurmond, the appellant, and the deceased, after a night of revelry and drinking, repaired to the bedroom of deceased, back of his employer's place of business. The deceased proposed that he would rob the cash register, and divide the proceeds. After some colloquy, in which appellant claims to have opposed it, the deceased did perpetrate the robbery. In a sudden affray, the result of a quarrel over the division of the loot, Pearce was shot and killed. It is evident that it was unpremeditated, and the result of sudden anger. Appellant requested a charge to the jury limiting the verdict to conviction of no higher crime than manslaughter, which was refused. This refusal is not assigned as error here, so we pretermit further discussion of it. With this background, we deem it necessary to deal hereinafter only with the statements of Thurmond, the testimony of the doctor, the proffered evidence of the five persons as to the dying declaration, and the dying declaration itself.
When the doctor reached the scene of the shooting, he found Pearce in a speechless condition, with a wound in the lung near his heart. He was then unconscious. Furthermore, some of the big blood vessels were cut, severed by the pistol bullet. Four hours later Pearce died at the hospital. Nevertheless, before death he regained consciousness. The doctor said that upon regaining consciousness Pearce could know he was dying, from his condition and the nature of his wounds.
The events at the hospital, pertinent to the issue raised by the assignment of errors, all occurred within approximately thirty minutes.
But, before entering there, it is interesting to consider what Eugene Thurmond, who did not testify at the trial of this case, had to say as to who shot Pearce, the deceased. When the owner of The Grille, the scene of the shooting, was handed the pistol by Thurmond, he stated 'I shot James.' Later, it is true he declared, 'We shot James.' Furthermore, after the shooting, Thurmond did most of the talking to the officers investigating the case, the appellant saying nothing until handcuffed, and then 'just followed along with' Thurmond's story. On the stand, appellant denied that he did the shooting, charging it to Thurmond, who used a pistol belonging to the owner of The Grille. He also corroborated the latter's statement that Thurmond handed back to him his gun, stating, 'I shot James Pearce.'
A deputy sheriff testified that Pearce was in a dying condition, when he was sent to the hospital. The doctor also testified to the same effect, declaring that Pearce himself could know it, if he regained consciousness, so that he was actually on his deathbed, when the events, excluded by the court, occurred at the hospital, in a period of thirty minutes before deceased lapsed into a coma. Pearce requested the nurse to turn him over, and she refused to do so before the doctor came for fear of accelerating his bleeding. Pearce is not shown to have attempted to turn himself over. On what was his deathbed, he exclaimed, 'I just can't make it,' which were his last words. The court asked the witness, an attache of the hospital, 'Did you ever hear this man say anything about dying?' To which she replied: 'No more than saying he couldn't make it.' All of this was in the absence of the jury.
In this situation, and the facts thereof are concurred in by all of the five witnesses named in the assignment of error, he was asked by each of them, including the ambulance driver who brought him to the hospital, 'Who shot you?' He invariably replied that it was Eugene Thurmond. He said it was over money. And it was over money. He was clearly rational during his thirty minutes of consciousness. He gave his mother's and his own name and address correctly. None of these witnesses, offered by the appellant, knew him, and they were strangers to him, without interest in the case. On objection by the State, the court excluded this testimony from the jury, and thereby committed, we...
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Watts v. State
...... without any expressed declaration to show that he was sensible of impending death." Clark at 231 (quoting Fulton v. State, 209 Miss. 565, 569, 47 So.2d 883, 885-86 (1950)). In Clark, we held that there was no indication that the victim knew or thought he was mortally wounded and about t......
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Rouse v. State, 45059
...the hospital. Dr. Wigham testified that her liver was extensively cut and her wounds fatal from the outset. We said in Fulton v. State, 209 Miss. 565, 47 So.2d 883 (1950): 'It is well settled that the sense of impending death which a dying person must have had in order to render a dying dec......
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Hardeman v. State, 38567
...about it, could be no more than a belief or an opinion on the part of declarant. Such belief or opinion was not competent. Fulton v. State, 209 Miss. 565, 57 So.2d 883. As to the third contention, the court granted the State six instructions, including one on the form of the verdict. The de......
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Kidd v. State, 46661
...was more than a faint hope. Appellee urges that the rule as set forth in Rouse v. State, 222 So.2d 145 (Miss.1969) and Fulton v. State, 209 Miss. 565, 47 So.2d 883 (1930), should control. We are of the opinion, however, that the rules governing the admission in evidence of a denying declara......