Hancock v. State, 37551

• Decision Date: 02 October 1950
• Docket Number: No. 37551,37551
• Citation: 47 So.2d 833,209 Miss. 523
• Parties: HANCOCK v. STATE.
• Court: Mississippi Supreme Court

Page 833

47 So.2d 833

209 Miss. 523

HANCOCK v. STATE.

No. 37551.

Supreme Court of Mississippi, Division B.

Oct. 2, 1950.

Crawley & Brooks, William D. Brooks, Kosciusko, for appellant.

John W. Kyle, Attorney General, by Geo. H. Ethridge, Jackson, for appellee.

ROBERDS, Presiding Justice.

Hancock was convicted of manslaughter in the killing of Dixie Ola Hancock, his twenty-one-months old girl, and sentenced to twenty years in the state penitentiary.

On this appeal, he urges (1) that the evidence is insufficient to sustain the verdict; (2) that the court erred in refusing to permit him to propound to the prospective jurors on the voir dire examination certain questions; (3) that the court erred in permitting the State to introduce in evidence pictures of the body taken after death; and (4) in excluding from the jury the testimony offered by defendant as hereinafter specified. We will deal with these questions in the order stated.

The first question necessarily requires a summation of the evidence. Appellant contends he did not kill the child. He says its Mother, the wife of appellant, killed her.

The tragedy occurred in October 1948. Appellant, when he testified, was thirty-three years of age. He had previously served three or four years, at home and abroad, in the United States Marine Corps. He and his wife had two children, Dixie Ola and another girl three years of age. He was a tenant, and the family resided some ten miles from Kosciusko, Mississippi.

On the morning of Tuesday, October 19, 1948, about eight-thirty o'clock he appeared at the office of Dr. Willard Barnes in Kosciusko and asked Dr. Barnes to go to his home to see his sick child. He and the doctor proceeded to his home in the doctor's automobile. On the way Hancock told the doctor the child had been sick for several days; that it had had difficulty walking, and he did not know what the trouble was. On arrival at the Hancock home, Dr. Barnes found Dixie Ola lying upon a table, some two feet high, in front of, and some three or four feet from, an open fire. She wore night clothing. It was evident at once the child was dead. Dr. Barnes testified she had been dead some ten hours. He found her body badly mutilated. It had upon it, from the bottom of the feet to the top of the head, many cuts, bruises, abrasions and wounds, covering the entire body, including the face. Appellant, in response to inquiry by Dr. Barnes as to the cause of the mutilations, said: '* * * he had switched or spanked it, or something to that effect, a few days previously.' Dr. Barnes told appellant an investigation should be made, and he should obtain a permit to bury the child. The two returned to Kosciusko, and Dr. Barnes notified the sheriff and the undertaker. Hancock went to the funeral home. He inquired of Coleman, the undertaker, whether the sheriff would want to go out 'and look at the baby.' Coleman asked if he had not had a doctor attend the child and Hancock replied: '* * * he had not up to the time it died.' Asked by Mr. Coleman the cause of the death, appellant said: '* * * it was walking across the floor and his wife hollered at it and it fell and hit its head on the floor, and I asked him when that was and he said it was three or four days.' Coleman also testified appellant said the child had been unconscious for a couple of days.

The sheriff and Roy Braswell, a deputy, and T. L. Thweatt, insurance agent for the funeral home, and an employee of that home, then went to the Hancock home. Mr. Braswell and Mr. Thweatt testified. Braswell testified the child was yet in front of the fire. He described the wounds in these words: 'It was very bad, bruised up all over its body, almost black on its legs, was skinned up and bruised up and had already turned blue and black more or less, and most of those I'll say down below the knees, the biggest part of it, and all over its face and head was almost solid bruises--cuts and bruises * * * around the eye--one of the eyes and back of the head just above the ear was a bad place and had several cuts on the side of its face, more or less on the side, and lots of places on the back of its legs about the hips of the child, legs and hips.' Thweatt also described the wounds, which we need not repeat.

The body was brought to the undertaker and pictures were made of it. There Dr. Barnes made a more thorough examination of the remains.

The body was brought to Jackson, Mississippi, for examination by Dr. F. G. Bratley, Doctor of Medicine and a Pathologist. He made a thorough examination of, and performed an autopsy upon, the body. After saying there were many abrasions and lacerations over the entire body he described two in particular. These were upon the child's head. He said: '* * * there were two particularly on the scalp, one at the top of the head and one over the back surface of the head. These were lacerations and they were rather deep. The one over the back of the head was about one inch in length, and the one on the top of the head was about three-quarters of an inch in length.' He also made an internal examination. He said he found some pus in the kidneys. He thought that infection had been present for some two weeks; it might have existed longer, but not over a month and a half at the longest. He said there was a blood clot of some two ounces over the surface of the brain. This was from some small vessels which go between the covering of the brain and the brain tissue itself. He said the brain tissues were swollen 'due to the increase in fluid in the brain.' He examined a laceration on the leg; took a particle therefrom and examined it under the microscope. He said that showed a hemorrhage extended from the skin down to the muscle. He said the hemorrhage had existed at least three days 'and it could have been there for a period of a week to ten days.' He did not think all the contusions and wounds had been inflicted at the same time. He was asked his opinion as to the cause of the death of the child and replied: 'In my opinion the cause of the death was edema, that is, swelling of the brain and brain tissues along with the hemorrhage on the surface of the brain, aided also by these many lacerations and contusions and abrasions over the surface of the body, the chief cause being the edema or swelling of the brain.' He said the natural consequence of the swelling of the tissues would be to produce unconsciousness within about six hours after the blow.

Hancock was arrested and placed in jail. The deputy sheriff and district attorney there interviewed him. Braswell, deputy sheriff, testified they asked Hancock if he had whipped the child and he replied he had whipped it with a small switch some two feet long, 'and had whipped it pretty hard all right'; that on Saturday afternoon, before the Tuesday morning Dr. Barnes found the child dead, 'he said the child had a falling out spell in the kitchen, stayed unconscious for a little while'; that on Sunday morning, 'or some time Sunday', it fell off a woodpile and skinned its head, and that Sunday afternoon he whipped it to make it walk and get some exercise.

Shelton, a detective, visited appellant in jail. Hancock told him, so Shelton testified, that he had whipped the child on numerous occasions; that occasionally he got limbs off a peach tree in his back yard and whipped the child with these; that on Sunday night before the Tuesday the child was found dead '* * * the child fell in the floor unconscious and its mother was cooking supper and he tried to make it walk from him to its mother and back and said it made the trip once or twice and it fell.' They picked up the child and it was unconscious; they ate supper; that around two or three o'clock in the morning the house was cold; this wife got up and made a fire and laid the baby before the fire; that next day, Monday, he was away from home and when he returned in the afternoon the child was still asleep or unconscious. They went to bed and Tuesday morning she was still unconscious or asleep. He then went for the doctor.

Mrs. S. H. Jones testified for the State. She lived about a quarter of a mile from the Hancocks. Hancock and his wife came to her house about noon Sunday. They ate lunch at her home. Neither child was with them. Hancock said they were at home asleep. They remained at her home until nearly three o'clock in the afternoon, and said they were then going to Mr. Greer's. That night, while on her porch, she heard a child crying. She went to the Hancock home Tuesday morning about 8:30 and saw Dixie Ola. She was dead.

The foregoing recitals are drawn from testimony of the State.

For the defense, Mrs. Nina Hancock, mother of defendant, said defendant and his family had resided in her home some four or five weeks. He had attacks of malarial fever. Defendant was kind to the children. However, friction developed between the mother and the family of defendant and she asked them to move out of her home, which they did.

Mrs. Willene Murphy, first cousin of defendant, said he and his family resided in her home some two weeks, and appellant treated the children in a kindly manner.

Herschell Hancock, brother of defendant, said appellant was affectionate towards his children. He said, however, he was much surprised to learn Dixie Ola had been beaten so badly and appellant had done nothing about it. He was shown the pictures and could not understand why defendant had not gotten a doctor.

Mrs. Eula Hancock, wife of Herschell Hancock, said appellant was affectionate towards the children.

G. G. Carter testified appellant had been working for him prior to the time of this deplorable event. Hancock worked for him Friday. That was his last day. Defendant said he was ill. Witness went to the home of appellant Monday morning to ascertain why he had not been at his work since Friday. He said he saw both children on the front porch Monday morning. Defendant told him he was looking for a place to which to move. ...