Gamble v. State, 43802

Decision Date14 February 1966
Docket NumberNo. 43802,43802
Citation254 Miss. 822,183 So.2d 172
PartiesWalter GAMBLE v. STATE of Mississippi.
CourtMississippi Supreme Court

H. Wingfield Glover, Jr., Harry L. Hopkins, Wilbourn, Lord & Williams, Meridian, for appellant.

Joe T. Patterson, Atty. Gen., by Hugo Newcomb, Sr., Asst. Atty. Gen, Jackson, for appellee

JONES, Justice.

This case comes from the Circuit Court of Lauderdale County where appellant was convicted of murder of one Henrietta Smith and was sentenced to life in the State Penitentiary. We are compelled to reverse the case because of errors in admission and exclusion of evidence.

There are other assignments of error, but we consider none of them well-taken other than those herein specifically mentioned.

The appellant and the said Henrietta Smith were living together and occupying one side of a house, the other side of which was occupied by one, Charlie Clark.

On or about January 17, 1965, the said Henrietta Smith was burned to such an extent that she later died. The appellant was charged with setting her on fire allegedly with kerosene. On this particular night, Charlie Clark testified he was asleep and was awakened. He heard Henrietta say, 'Don't come in here, you stay in there.' He dozed back to sleep and heard a loud noise, and Henrietta say, 'I am burnt up', after which he heard Henrietta say, 'Walter, you have burned me up. Somebody get me to a doctor. Don't let me die, I am burnt up.' Charlie Clark dressed and ran to the next door neighbors' house; and, seeing the smoke coming out the door, he tried to get the fire department. Then he went up the street to call the ambulance. He said he talked to his neighbor awhile and appellant came there and asked the neighbor to carry Herietta to the doctor. The neighbor said his car was out of order and appellant went to another neighbor's house to call the ambulance.

T. H. Essix, the neighbor who lived next door testified. After Charlie Clark was there, the defendant came and asked if he would carry Henrietta Smith to the hospital. When asked, 'Why?' Walter said, 'Well, I done set that mother--afire.' Later he heard Henrietta say, 'Oh, oh, oh, Walter, why did you burn me up?' Walter said, 'I don't know', then he left to call the ambulance. Objection was made to the testimony of Charlie Clark as to what Henrietta Smith said and also as to what T. H. Essix had heard Henrietta say. The objection was that it was not part of the res gestae but hearsay. We hold that Charlie Clark's testimony was admissible, as being part of the res gestae. Thompson v. State, 220 Miss. 200, 70 So.2d 341 (1954); Magee v. State, 145 Miss. 227, 110 So. 500 (1926).

The testimony T. H. Essix as to the appellant's statement of what he did was, of course, admissible. Also, T. H. Essix's testimony as to what he heard Henrietta say and the appellant's response thereto was admissible, as a declaration against interest.

Lavonne Stallings was an attendant of the ambulance service which removed Henrietta from her home to the hospital. At the emergency room of the hospital, in addition to Henrietta, there were several people present--two policemen, Mr. Harry Hughes, some other man with the police department, Walter Gamble, and two or three others. Stallings testified that when Mr. Hughes came in he asked Henrietta what happened and she said that Walter Gamble tried to burn her up. She said he knocked her down, poured kerosene on her, struck a match, stuck the match in her ear, and said, 'I am going to see if you will burn now, goddam you.'

The witness stated Walter Gamble heard the statement and said he did not do it, and said, 'I tried to help you.' The witness also testified that Walter Gamble had kerosene on him; it was on his leg from his hip to his knee. The whole front of his pants was wet. That part of the witness' evidence as to Henrietta's accusation should not have been admitted inasmuch as appellant, according to the witness' testimony, denied immediately such accusations. 22A C.J.S. Criminal Law, Sec. 734(2) at p. 1080 (1961); Underhill, Criminal Evidence Sec. 259 at 489 (4th ed. 1935).

Annelle L. Beard, a nurse at the hospital, was introduced and testified to some statement that Henrietta made in the presence of Walter, but she said the only thing she heard Henrietta tell Mr. Hughes was about her side of the story. The nurse also heard Walter Gamble deny it. This testimony as to accusations made by Henrietta and denied by appellant should not have been admitted.

Howard Moore, a policeman, testified about statements by Henrietta at the hospital accusing defendant of pouring kerosene on her and lighting it. He said Walter Gamble was in the room but there is no proof that he heard the statement or whether he denied it. On retrial, if it is not established that defendant heard these statements or was in position where he should have heard them, and did not deny same, this evidence should not be admitted.

Mr. Harry Hughes, constable, was at the hospital when the...

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3 cases
  • U.S. Fidelity & Guaranty Co. v. State for Use and Benefit of Stringfellow, 43798
    • United States
    • United States State Supreme Court of Mississippi
    • February 14, 1966
  • Crenshaw v. State, 57073
    • United States
    • United States State Supreme Court of Mississippi
    • September 2, 1987
    ...(Miss.1982); Phillips v. State, 374 So.2d 824, 825 (Miss.1979); Isaacks v. State, 350 So.2d 1340, 1344 (Miss.1977). Gamble v. State, 254 Miss. 822, 183 So.2d 172 (1966). The purpose of an opening statement is to inform the jury what a party to the litigation expects the proof to show. Somet......
  • Carroll v. State, 44326
    • United States
    • United States State Supreme Court of Mississippi
    • March 20, 1967
    ...We think this testimony competent and properly admitted.' 85 Miss. at 745, 38 So. at 111. To the same effect, see Gamble v. State, 254 Miss. 822, 183 So.2d 172 (1966), where this Court held that such statmements were admissible-first, as being part of the res gestae, citing Thompson v. Stat......

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