Gurley v. State

• Decision Date: 26 February 1912
• Docket Number: 15,543
• Citation: 57 So. 565,101 Miss. 190
• Court: Mississippi Supreme Court
• Parties: W. H. GURLEY v. STATE

57 So. 565

101 Miss. 190

W. H. GURLEY v. STATE

No. 15,543

Supreme Court of Mississippi

February 26, 1912

APPEAL from the circuit court of Neshoba county, HON. GEO. H ETHRIDGE, Special Judge.

W. H Gurly was convicted of manslaughter and appeals.

Among other instructions granted by the court for the state is the following: "No. 6. The court charges the jury, for the state, that the dying declaration is legal testimony, and if they believe beyond a reasonable doubt in this case that shortly before the death of the deceased, and at a time when he was conscious and believing that death was imminent and impending, he made statements to Morgan Parker, P. G Tinsley, and J. T. Monroe, and other witnesses who testified in this case, as to how the difficulty occurred, then it is the duty of the jury to consider and weigh the same, along with the other testimony in the case, in determining the guilt or innocence of the defendant."

Judgment reversed.

Flowers Alexander & Whitfield, for appellant.

The court decides whether the declaration offered to be proved was made under a realization of impending death. Owens v. State, 59 Miss. 547; Lipscomb v. State, 75 Miss. 559; Guest v. State, 96 Miss. 871.

This question is a preliminary one and should be decided by the court in the absence of the jury. Lipscomb v. State, supra; Guest v. State, supra.

Since the proof of the dying declaration is a material part of the case, and since the court decides whether it was made under a solemn sense of impending dissolution, the court should be satisfied beyond a reasonable doubt that the declaration was so made. The accused is entitled to the benefit of the reasonable doubt on questions of fact decided by the court as well as on questions decided by the jury. Bell v. State, 72 Miss. 507; Lipscomb v. State, 75 Miss. 559; Guest v. State, 96 Miss. 871.

It is apparent from the instructions for the state and the defense that the court did not deal with the alleged dying declarations in the way the law requires. The trial judge did not consider that the question of the competency of the evidence as to the statements made by Dr. Davis was one for him to decide. He would only make such preliminary examination as was necessary to see whether the evidence both as to the condition of the declarant's mind at the time and as to the statements made was sufficient to go to the jury. He submitted to the jury the question as to whether Dr. Davis was under a sense of impending death and without hope at the time the alleged statements were made. This was done by instruction No. 6 for state which is:

"The court charges the jury for the state that the dying declaration is legal testimony, and if they believe beyond a reasonable doubt in this case that shortly before the death of the deceased, and at a time when he was conscious and believing that death was imminent and impending he made statements to Morgan Parker, P. C. Tinsley and J. T. Monroe, and other witnesses who testified in this case, as to how the difficulty occurred, then it is the duty of the jury to consider and weigh the same along with the other testimony in the case in determining the guilt or innocence of the defendant."

And then he gave instruction No. 6 for the defendant which is:

"The court further instructs the jury that they must be satisfied beyond a reasonable doubt that at the time Dr. Davis made the declaration as testified to by the witness that he had at that time a full realization and solemn sense of impending death and that he had abandoned all hope of life; and the jury must be further satisfied beyond a reasonable doubt that Dr. Davis was sane and rational at the time he made said declarations, and if the jury is so satisfied beyond a reasonable doubt, then you are instructed that you cannot consider any part of said declarations, except that part pertaining to the killing, and the circumstances immediately attending it and forming a part of the transaction at the time."

We call the court's attention here to these two instructions as furnishing an explanation of the action of the court in admitting the statements made to Monroe, Harper and Tinsley. The court did not proceed upon the theory that it was his duty to determine finally these preliminary questions. If he did so act, why submit the same questions to the jury? It is not for the jury to say whether the man was conscious of approaching death and without hope. With this issue the jury has nothing to do. McDaniel v. State, 8 S. & M. 401; Nelms v. State, 13 S. & M. 500; Lipscomb v. State, supra.

The second important error committed in the trial court which in our judgment calls for a reversal of the judgment of conviction is that the Hon. A. M. Byrd, who made the closing argument for the state commented indirectly upon the failure of the defendant to testify.

Our legislature, deeming that the right of the defendant to testify in his own behalf or decline to testify should be protected, undertook to write such safe-guard into the statute. Section 1918 of the Code is as follows:

"The accused shall be a competent witness for himself in any prosecution for crime against him; but the failure of the accused, in any case, to testify shall not operate to his prejudice or be commented on by counsel."

In the face of this statutory provision prosecuting attorneys will not directly and expressly comment upon the failure of the defendant on trial to take the stand in his own behalf. Such comments these days are always indirect. The statute is sought to be evaded by the use of expressions which may produce the desired effect and yet not be condemned. The comment in the case at bar is indirect and adroit. The able attorney who made the closing argument in behalf of the home man and in the prosecution of the stranger did not say:

"The defendant has not taken the stand to testify; he is afraid to do it; he cannot face the jury and tell how the thing happened without convicting himself; if he knew he was innocent he would not keep the jury in the dark about it but would give them the benefit of whatever information he may have."

Nothing as direct and palpable as this was done or said.

But one of the attorneys for the defense having stated to the jury that if Gurley had died from his wounds and Davis had recovered, the latter would be on trial for his life and the learned prosecuting attorney seized upon this remark and proceeded to draw a contrast between the conduct of Burley in the trial and the supposed conduct of Dr. Davis if he had been on trial.

We may take the language of the presiding judge upon which he acted in overruling the motion for a new trial. See page 395 of the record where the following statement by the court is found:

"The court recollects the matters referred to in the testimony, and was watching the arguments of counsel very close, and I recollect the defendant's counsel had commented on the fact that if Dr. Davis had gotten well and defendant had died, that Dr. Davis would have been on trial perhaps instead of the defendant on a similar charge, and that counsel for state, Mr. Byrd, in alluding to that, quoted from counsel for the defendant in substance and said, "if that was true, he would have put Blankenship and other witnesses up and Dr. Davis would have mounted the stand and told how that occurred,' this statement being objected to, the court promptly sustained the objection and instructed the jury not to regard it, and the court also instructed the jury not to regard any statement as to the defendant not testifying, and I will also state that the instructions asked for by the defendant on that line on that point were given prior to the opening of the arguments of counsel and those instructions were read by counsel for the defendant to the jury and they were fully informed thereby by defendant's request, no prejudice could result from the defendant's failure to testify."

This is a statement by the court as to what he heard the prosecuting attorney say in his closing argument. This statement of fact touching the incident is that upon which the court acted in holding that no harm was done and in overruling the motion for a new trial.

This remark of counsel as understood by the presiding judge amounted to saying that, "Dr. Davis, if he were on trial, would mount the stand and tell this jury how it happened. He would not do as this defendant has done, keep his mouth closed and refuse to tell the jury how the thing happened."

This remark held up to the jury the failure of Gurley to testify. It suggested to the jury that Gurley should be condemned for his failure to testify. The other man, if he were on trial, would be more frank, and less afraid of a full disclosure, ready to give the jury the benefit of all he knew about it. Nothing could be plainer than that this was indeed a comment upon the failure of the defendant to take the stand in his own behalf. The statute contemplates that the silence of the defendant shall not be called to the attention of the jury in the argument for the state. Sanders v. State, 73 Miss. 444; Reddick v. State, 16 So. 490; Drane v. State, 92 Miss. 180, 45 So. 149.

Claude Clayton, assistant attorney-general, for appellee.

This brings me to a consideration of a material and vital proposition of law as to the admission of these declarations in evidence, and while I admit that it is always necessary to lay a foundation for the introduction of dying declarations on the trial of an indictment for murder by first proving that they were made under a sense of impending death, yet this is a fact, and can be proven and established in any of the accepted ways of establishing a fact. It may be proven by the express words of the deceased, that he knowns that he is bound to...