Haney v. State

• Decision Date: 10 July 1922
• Docket Number: 22483
• Citation: 92 So. 627,129 Miss. 486
• Court: Mississippi Supreme Court
• Parties: HANEY v. STATE

92 So. 627

129 Miss. 486

HANEY v. STATE

No. 22483

Supreme Court of Mississippi

July 10, 1922

1. CRIMINAL LAW. Error cannot be predicated on irregularity in drawing jury in absence of evidence that accused not fairly tried.

Where there is no evidence that accused was not tried by a fair and impartial jury, error cannot be predicated upon irregularity in the drawing or impaneling thereof. Section 2692, Code of 1906 in relation to impaneling juries, is made directory by secton 2718, Code of 1906.

2 HOMICIDE. Statement of deceased admissible as dying declaration only if made in extremis, and burden on state to show such fact.

Before a dying declaration is admissible, the declarant must have a sincere and settled belief of his impending dissoluton, and have lost all hope of recovery, however slight. The burden of proof to show this is upon the state before the declaration is admissible.

3. CRIMINAL LAW. Statement of deceased that accused shot him for nothing, made immediately after shooting, held not part of the res gestae.

A statement of a person shot made a minute or two after the shooting, in the absence of the accused, to the effect that the accused shot him, and shot him for nothing, is merely the rehearsal or history of the shooting, a past transaction, and is not admissible as a part of the res gestae. This statement is in no sense a verbal act explaining any part of the difficulty, and constituting a part of it.

4. CRIMINAL LAW. Homicide. Admission of statement of deceased not part of res gestae nor dying declaration, reversible error.

In this case the deceased had threatened to take the life of the appellant. There were no eyewitnesses to the shooting, which occurred at night upon a street. The accused shot deceased once with a shotgun. The defense was self-defense, the accused claiming that the deceased, a much larger man, had just thrown a brick at him, and was at the time of the shooting in the act of assaulting him with a wooden picket. Held, that it was reversible error to admit in testimony the statement of the deceased above quoted, since it was neither a part of the res gastae nor a dying declaration.

HON. R S. HALL, Judge.

APPEAL from circuit court of Jones county, HON. R. S. HALL, Judge.

Houston Haney was convicted of murder, and he appeals. Reversed and remanded.

Reversed and remanded.

Currie & Currie, for appellant.

It is apparent to this court without further argument on this point, that the statement or declaration made by the deceased, was not competent as a dying declaration. We cite as conclusive on this proposition, the following: In the case of the State v. Bell, 17 So. 232, the court held: "That it was error to admit a dying declaration, without full inquiry into all of the circumstances under which they were made and with an examination of all witnesses able to throw light on the matter." There was no such inquiry or investigation made by the court or the district attorney in the present case.

These declarations or utterances by the deceased were permitted to be proven by the court without reference to circumstances or conditions under which they were made and without reference to the condition or state of mind of the deceased with reference to whether or not he believed he was going to die. This testimony, was, as has been said, highly prejudicial to the defendant, and in our humble judgment, must cause a reversal of this case.

This court well understands without our rehearsing the reasons why such testimony should not be given, unless qualified as required by law. State v. McNeill, 76 So. 625. On this point, we cite the following: Fawn v. The State, 101 Miss. 389, 58 So. 2; Bell v. The State, 72 Miss. 507, 17 So. 232, and numerous other. Sparks v. The State, 74 So. 123.

We submit that the foregoing authorities are conclusive upon the proposition of the incompetency of the declaration or statement of the deceased in this case. There was no qualification whatever made by the state through its district attorney, or the court, who also, as will be seen from the record engaged in the cross examination of witnesses at its pleasure. This testimony was purely hearsay.

The declarations or statements made by the deceased after he was shot, were not a part of the res gestae. The deceased had been shot and the appellant was not present when the statement or declarations were made. The difficulty was a completed affair, and everything that the deceased said was nothing more than a narrative of the past event, and could not under any theory be held to be a part of the res gestae. Field v. The State, 57 Miss. 474; Fondron v. Durfree, 39 Miss. 324; Granger Insurance Company v. Brown, ante, 308; 34 Am. Rep. 446; Denton v. The State, 1 Swan (Tenn.) 279; Kraner v. The State, 61 Miss. 158.

In Mays v. The State, 64 Miss. 333, 1 So. 735, 60 Am. Rep. 58, the question of res gestae is fully discussed by the court and clearly defined, and while it seems that the courts up to this time had not clearly defined or formulated a definition of the term, our court in this case clearly held that, to constitute the declarations or statements a part of the res gestae, they must be made during the affray. Lewis v. The State, 68 So. 785, 109 Miss. 586.

We might cite other authorities on this subject, but we feel that from the above decisions, the point under discussion is too well settled to require further argument or citation, and summing up this point, there can be no serious contention made disputing the fact that this testimony offered by the state was purely hearsay, was incompetent, was improperly admitted by the court and resulted in the conviction of the defendant for which he is entitled to a reversal of this cause.

H. T. Odom, assistant attorney-general, for the state.

Briefly the errors relied on by the appellant herein may be stated as follows: First: the action of the trial court in instructing the sheriff not to impose on the farmer friends in getting talesmen, but to go into the stores and banks and get them; Second: the admission of evidence as to statements of the deceased after he was shot.

As shown by special bill of exceptions at page 23 of the record, after the regular panel had been exhausted the court gave the sheriff the following instruction: "Mr. sheriff, don't impose on our farmer friends here, but go down in town and get business men to fill the panel. Get them out of the stores and banks and make them come up here and serve on the jury."

While it is admitted that this order is rather unusual, we see no harm to the appellant from this action of the court. If the court had said, "Go out and pick men who will convict," it would be quite different, but there is nothing in the statements of the court to indicate that he had any feeling in the case. No by-stander or any member of the jury already accepted, if they heard the statement (which the record does not disclose) could have inferred that the court wanted men on the jury who would convict. Certainly this action of the court could not in any manner be calculated to prejudice the rights of the appellant or deprive him of his right to a fair and impartial trial by twelve unbiased jurors. This assignment is wholly without merit, and is not pressed by counsel for the appellant.

Passing now to the competency of the statements made by the deceased after he was shot. Counsel for the appellant have quoted at length from the evidence, and I deem it unnecessary to burden the court by setting out this testimony again. Suffice it to say that several witnesses testified in substance that forthwith after the shooting the deceased exclaimed "Oh, Lordy, Lordy! you shot me and you shot me for nothing." Some of the witnesses said that the words used were: "Oh, Oh! Houston shot me and he shot me for nothing." Whatever the words may have been, the substance of the statements are the same, and the fact that this statement of the deceased was made immediately after the shooting and almost simultaneously therewith, all of the witnesses who testified on that point agree, and the evidence of Callie Evans, shows that the appellant had not left the scene of the tragedy when the deceased made this statement.

In the case of Mays v. State, 1 So. 735, relied on by counsel for the appellant, it is held that the res gestae may extend over weeks and months even, and that each case must be determined by its own particular merits. The case of Field v. State, 57 Miss. 474, is not in point and is easily differentiated from the case at bar, the declaration there being by a poisoned person as to her husband giving her coffee about an hour before. The court held this incompetent, but in rendering an opinion used in part the following language. "The exception to the rule that declarations, in order to be admissible, must be simultaneous or contemporaneous with the principal event, as deduced from these and similar cases, seems to rest upon the idea that the interval of time has been very brief, proffering assistance or making inquiry, and that there has been neither opportunity nor motive for fabricating a false story."

Therefore the first statement of the deceased therein was admissible under the res gestae rule being simultaneous with the shooting, and the last case coming within the exception as stated, by the court in the Fields case, supra.

We contend further that said statements of the deceased were admissible as dying declarations, notwithstanding argument of counsel for the appellant to the contrary, who contend that the proper predicate was not laid to make these statements admissible as dying declarations. It will be noted that these statements were made under the following circumstances, as disclosed by the record. After the deceased had...