Gilmer v. State, 46998

• Decision Date: 08 January 1973
• Docket Number: No. 46998,46998
• Citation: 271 So.2d 738
• Parties: J. C. GILMER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 738

271 So.2d 738

J. C. GILMER v. STATE of Mississippi.

No. 46998.

Supreme Court of Mississippi.

Jan. 8, 1973.

Townsend & McWilliams, Drew, for appellant.

A. F. Summer, Atty. Gen. by J. B. Garretty, Sp. Asst. Atty. Gen., Jackson, for appellee.

GILLESPIE, Chief Justice:

This is a companion case to McLaurin v. State, 260 So.2d 845 (Miss.1972). Appellant and McLaurin were indicted by a grand jury of the Circuit Court of Sunflower County for the murder of Danny Calhoun Bennett. McLaurin was tried, convicted and sentenced to life imprisonment in the State Penitentiary, and his conviction was affirmed by this Court in McLaurin v. State, supra.

Defendant was a trusty at the State Penitentiary in charge of a group of prisoners including the deceased, Danny Calhoun Bennett.

Although defendant denied beating Bennett, there was testimony from several prisoners in the group that the appellant and McLaurin did severely beat Bennett with a stick and a piece of leaded rubber hose.

There was ample evidence of the beating, but the testimony as to the exact cause of death was in sharp conflict. Dr. B. L. Hammack, the prison doctor who examined the body when it was brought to the clinic, testified that from his examination and information furnished him, he concluded that death was due to a heat stroke, and signed a death certificate to that effect. He stated that he found no evidence of any beating. The justice of the peace who called together the coroner's jury testified that the jury concluded that Bennett died of natural causes. Dr. Van Philpot, medical witness for the state, testified that he performed two autopsies on Bennett's body, one shortly after death and one about two months later. He stated that he finally concluded that Bennett died primarily as a result of the trauma caused by the beating. Four other prominent physicians who formed an ad hoc committee of the State Medical Association to look into Bennett's death testified that they heard testimony from Dr. Philpot and Dr. Hammack and examined the tissue slides and autopsy reports prepared by Dr. Philpot. Each of the four testified that in his opinion, Bennett died of heat pyrexia rather than as a result of the trauma. Although conflicting, the evidence was sufficient to justify the finding that the beating was a substantial contributing cases of death. Houston v. State, 220 Miss. 166, 70 So.2d 338 (1954).

The defendant assigns as error the action of the trial court in limiting the cross-examination of Dr. Philpot concerning his prior mental problems. Dr. Philpot's testimony as an expert was vital to the state's case. On cross-examination defendant's attorney undertook to inquire into Dr. Philpot's past medical history. Upon the objection of the state the court would not permit the inquiry. Outside the presence of the jury defendant's attorney stated that he believed the physician had undergone a complete mental breakdown and had been diagnosed as a schizophrenic and was under the treatment of a psychiatrist for several years. The district attorney objected to this on the grounds that it was an effort to embarrass the doctor and that the occurrence southt to be inquired into was to remote. After considering the matter in the absence of the jury, the court stated: 'I am going to sustain the objection to any testimony that the doctor may have been confined in a mental institution some years ago, the doctor having passed his board examination since that time, and there being no showing that he is not competent at this time. Matters which are not remote in time and which reflect on the doctor's bias or prejudice may be gone into by defense counsel.' The record indicates that Dr. Philpot's mental difficulties were in 1959.

Defendant cites Jones v. State, 165 Miss. 810, 146 So. 138 (1933), wherein the court held that a witness's mental condition would go to both his competency and his credibility and that evidence thereof should be taken into consideration by the jury in weighing such witness's testimony. The trial court had reasonable latitude in determining whether the matters sought to be inquired into were too remote to justify the cross-examination of Dr. Philpot. In his ruling he stated that there was no evidence that Dr. Philpot was not competent at the time he testified. The defendant did not further pursue this matter by showing that there was a probability that Dr. Philpot was not competent at the time he testified, or that his prior mental illness had any bearing upon either his competency or his credibility as a witness in defendant's trial. Absent such showing or tender of proof to that effect we cannot say the trial judge erred.

From time to time witnesses are unjustifiably subjected to harassment on cross-examination about matters that are either irrelevant and immaterial or too remote in time. The administration of the laws are best served by giving the trial court reasonable discretion in the protection of witnesses from being subjected to unjustified harassment concerning their past. Otherwise, members of the public will be hesitant to make themselves available as witnesses and thus tend to suppress the truth. We find no cause to reverse this case on this assignment of error and hold that the trial court did not abuse his discretion in limiting the cross-examination of Dr. Philpot.

It is the contention that the trial court erred in granting the following instruction for the State:

The Court instructs the jury for the State that where two or more persons act in concert to accomplish the commission of a crime, the act of one is the act of all; that is to say, one aiding and abetting in the commission of a crime is chargeable as a principal, and the acts of other principals are considered to be his acts, and his guilt in no wise depends upon the guilt or innocence, the conviction or acquittal of any other alleged...