Guest v. State

• Decision Date: 02 May 1910
• Docket Number: 14455
• Citation: 96 Miss. 871,52 So. 211
• Court: Mississippi Supreme Court
• Parties: VESTER GUEST v. STATE OF MISSISSIPPI

52 So. 211

96 Miss. 871

VESTER GUEST v. STATE OF MISSISSIPPI

No. 14455

Supreme Court of Mississippi

May 2, 1910

FROM the circuit court of, second district, Chickasaw county, HON JOHN H. MITCHELL, Judge.

Guest appellant, was indicted for manslaughter in the killing of one Benjamin Ward, was tried, convicted, sentenced to the penitentiary for fifteen years, and appealed to the supreme court. The opinion of the court sufficiently states the facts. The language of the district attorney referred to in the opinion, is set forth in the brief of counsel for appellant.

Affirmed.

Knox &amp Busby, for appellant.

For the admission of dying declarations in preliminary hearings by the court for the ascertainment of the facts precedent and necessary to the competency of the proposed evidence, the degree of proof should be such as will exclude all reasonable doubt. And this is doubly important when the competency of any testimony rests upon collateral facts proposed to be proved by the state. In this case the rule applies to the preliminary question: first, whether Ward at the time realized that he was in extremis, and second, whether he was sane and rational; third, whether the existence of that settled feeling of hopelessness on the part of the declarant was proved before the court admitted his statement as a dying declaration. In favorem vitae, all doubt should be resolved against the state and in favor of accused. Bell v State, 72 Miss. 510; Owen v. State, 59 Miss. 549; Simmons v. State, 61 Miss. 257.

In Ellis v. State, 56 Miss. 48, Arnold, J., speaking of a confession said: "if there is reasonable doubt against its being free and voluntary it should be excluded." Mabel Ward testified that her husband, the deceased, asked her the next morning after the fight who it was that cut him. She told him that it was Vester Guest. And nowhere in the record can we find that the declarant ever made a free and voluntary statement as to his condition. The witness says that deceased would merely say that he was bound to die, when he was asked about his condition.

It is said in Lipscomb v. State, 75 Miss. 559, "that the declaration is usually that of a hostile party and is usually proved by the testimony of his friends and relatives, and has justly caused the courts to restrict its admissibility within well defined limits, and to require clear proof of these conditions, the existence of which are essential to its competency."

A very serious error of the trial court was in the granting of the sole instruction on behalf of the state. By Code 1906, § 1236, manslaughter is defined to be "the killing of a human being without malice in heat of passion, but in a cruel or unusual manner, not in necessary self-defense." And by Code 1906, § 1238, "killing of another in heat of passion without malice, by use of dangerous weapons without authority of law, and not in necessary self-defense." But the court below seemed to think all that was necessary to constitute manslaughter was that the killing had to be done without authority of law and not in necessary self-defense. A man may kill another without the authority of law and not in necessary self-defense and still not be guilty of manslaughter. For example, excusable homicide. One may imagine innumerable instances where one might kill another not in necessary self-defense and still not violate the law.

The district attorney, in his argument of the case before the jury, exceeded his privilege, and prejudiced the rights of appellant, by the use of language not justified under the evidence. It will be seen that the district attorney said: "That in his judgment this defendant had great reason to thank his God that the grand jury who returned this indictment, rendered it for manslaughter instead of murder, when they were passing upon his case in the grand jury room." This being poisonous argument to be indulged in by the district attorney, counsel for appellant. having excepted, the court should have sustained his objection. But in the presence of the jury, the court below overruled appellant's objections and permitted the district attorney to repeat and comment upon what the grand jury did in passing upon appellant's case. It being the law that the mere fact that an indictment against one is no proof against him, jurors should not be prejudiced against a defendant simply because there is an existing indictment against him.

George Butler, assistant attorney-general, for appellee.

The appellant absolutely denies the cutting, and his effort on the trial of the cause was to show that the fatal wound was inflicted by Benjamin Ward, his brother-in-law, the party with whom deceased was engaged in the fisticuff fight. This was the only issue in the case, and becomes material in another respect in view of the instruction given on the part of the state and criticized by appellants' counsel.

It is contended by appellant that it was fatal error to admit in evidence the dying declaration of the deceased. But this court will not so hold. Doctor Evans testified that the deceased several times stated that he was seriously hurt, and said that "I have very small hopes of recovery," and that "I am going to die," and that "I do not think that I am going to get well." This witness further testified that deceased was suffering severely all the time except when under the influence of opiates, and could hardly breathe at times.

Mabel Ward, wife of the deceased, testified that the deceased had told her several times during his illness that he was going to die and at no time said that he was going to get well; that he suffered greatly all the time as though he could hardly stand it.

It was after these witnesses had testified, that the state proposed to introduce the dying declaration of deceased, to the effect that appellant cut him, but upon objection by counsel for appellant, the trial court ordered the jury to retire and Mabel Ward was further examined; whereupon she again testified substantially as before. While the jury remained out, R. A. Ward, the deceased's brother, was introduced by the state, and testified that deceased said that he would never get well; that he was bound to die; and never expressed any hope of recovery at all from the time the wound was inflicted, to the time of his death, the last statement being made a short time before his death. It was further proved that on the day before the deceased died, it was proposed to send for another physician, and deceased said that it was of no use, that he could not do any good, that he was bound to die. With this preliminary showing, the jury were recalled and Mabel Ward and R. A. Ward permitted to testify before them that deceased stated that appellant had stabbed him.

The rule of when, and under what circumstances, a dying declaration is admissible in evidence was forever settled by the case of Lipscomb v. State, 75 Miss. 559. The rule there laid down, is as follows: (a) The words must have been made under a realization and solemn sense of impending death. (b) They must have been the utterances of a sane mind. (c) They must be restricted to the homicide and the circumstances immediately surrounding it, and forming a part of the res gestae. (d) A declaration, or part of it, is not admissible unless it would be competent and relevant if it were the testimony of a living witness. (e) Great caution should be observed in the admission of dying declarations, and the rule which restricts their admission should be strictly guarded, and finally, it is said that the admissibility of a dying declaration is a preliminary question for the determination of the court, and the degree of proof required to establish that decedent realized that he was in extremis, is such as to exclude all possibility of doubt.

In the instant case, three witnesses testified positively that decedent had a fixed and firm conviction that he was going to die, and moreover, the positive testimony of one witness is that deceased was sane at the time of the declaration, and it is nowhere hinted or suggested in the record that the deceased was not of sane mind. Neither is there any suggestion that deceased at any time, had any hope of recovery, therefore it may be safely said that there was no error in the admission of the dying declaration, but, on...