Hardeman v. State, 38567

• Decision Date: 05 January 1953
• Docket Number: No. 38567,38567
• Parties: HARDEMAN v. STATE.
• Court: Mississippi Supreme Court

Page 797

61 So.2d 797

216 Miss. 115

HARDEMAN v. STATE.

No. 38567.

Supreme Court of Mississippi.

Jan. 5, 1953.

Rupert Ringold, and J. W. Conger, Winona, for appellant.

J. P. Coleman, Atty. Gen., and Toe T. Patterson, Asst. Atty. Gen., for appellee.

ROBERDS, Justice.

Appellant, Hardeman, indicted for the murder of Dora Marie Houston, was convicted of manslaughter, and sentenced to a term of ten years in the state penitentiary.

He contends on this appeal, first, that the testimony did not justify the verdict of manslaughter; second, that the trial court erred in excluding from the jury part of a statement made by the victim, claimed by appellant to be a dying declaration; and, third, the lower court erroneously refused to grant to appellant certain specified instructions. We will pass upon these contentions in the order stated.

Did the testimony justify the verdict of manslaughter?

Hardeman and Dora Marie Houston both resided in that part of the town of Duck Hill, Mississippi, known as 'Babylon'. They lived some four hundred yards apart. Hardeman had been married and he had some children but he was separated from his wife and was living alone. Dora Marie Houston was married. Her husband was working at Rockford, Illinois. She had three children--two girls and a boy--who were living in the house with her. Leota West, an aunt of Fred Houston, the husband, was also living in the Houston home. The testimony of the state, in substance, is this:

Emma and Ida Houston, daughters of Fred and Dora Marie Houston, and Leota West, testified that about nine o'clock on Sunday night, March 9, 1952, Hardeman came to the Houston home, accompanied by a woman named Dorothy White. Dora Marie Houston was not at home. Hardeman wanted to borrow some money from Emma but she told him she did not have the money. He and Dorothy left. Later that night Hardeman alone came back to the Houston residence and inquired whether Dorothy White was there. She was not. He left. Between eleven and twelve o'clock he returned alone. Dona Marie was then at home. She was in her nightgown preparing to retire. Ironically she was singing 'Good Night, Irene'. Hardeman called to her to come out. She put on a skirt, waist and a coat and went out the front of the house. These witnesses heard no conversation between the two. The next thing they heard was a pistol shot. That was about two minutes after Dora went out of her room. Dora was on the ground near a woodshed to the rear of the house. She had been shot through the stomach with a pistol. A number of people quickly arrived. Dora was brought into the home and later carried to the Grenada Hospital at Grenada, Mississippi.

Willie B. Shaver testified she was the mother of Dora Marie Houston and lived in a house just to the rear of the Houston home. She had retired. She heard the shot and then heard Dora Marie call for her. She immediately ran out in her night clothes. Dora Marie was on the ground and appellant was standing within two or three steps of her. Witness 'shook' Dora Marie, who said nothing. Appellant immediately left, walking fast. Witness followed him, inquiring why he had shot her daughter. Appellant said nothing and continued to leave the scene. Other persons arrived and they carried Dora Marie into the house.

Dorothy White, 24 years of age, testified that she lived near the Houstons; that she saw Hardeman that Sunday morning at his home. She next saw him about nine o'clock that night at a cafe; that he asked her 'Where was that woman'; meaning Dora Marie Houston; she replied that she did not know. He then said he was going to her home and asked Dorothy to go with him, which she did. Dora Marie was not at home. Hardeman undertook, without success, to borrow a quarter from Emma Houston. Later she saw Hardeman and he again inquired 'Have you seen that woman yet?' He then said 'I am going to kill that woman.' Witness remonstrated with him. She also told another person, apparently in the cafe, '* * * that Elbert said he gas going to kill Miss Dora Marie and to take the pistol away from him.' She then went home. Hardeman came to her house about 11:00 to 11:30 o'clock and called through the window to her to come out, which she did. He then inquired 'Is that woman Dora Marie over here.' She replied she was not. Hardeman then told her that Dora Marie's children had informed him she was not at home. Hardeman, apparently believing that the children had misinformed him, asked Dorothy to go to the home of Dora Marie and bring her to him. Witness assured Hardeman that if the children stated Dora was not at home that this was the truth. He then said 'That's all right, if you don't want to go get her, I'll get her if it be next Wednesday.' He left. In about ten minutes she heard a pistol shot. People were running towards the Houston home. She went also. Dora Marie had been brought into the house. Witness rode in the automobile which carried Dora Marie to the hospital at Grenada.

Dr. W. E. Brown, connected with the Grenada Hospital, and Misses Pauline Blankenship and Frances Ayles, two nurses working therein, testified that Dora Marie Houston was brought to that hospital early Monday morning. The exact time is not shown. Apparently it was between one and two o'clock. They testified as to the pistol shot wound in the abdomen; the care and treatment they gave her and that she died from that wound about 4:15 on Tuesday morning following. The bullet wound was just to the left of the navel. In the absence of the jury they repeated some statements made by Dora Marie bearing upon the intentions of Hardeman when he shot her and the criminal nature of the act. These tended to exculpate him. However the only statement relevant to the issue under discussion now is the one admitted by the court to go before the jury and that was 'We were playing.'

Mr. Winston Blakely testified he was marshal of Duck Hill at the time. He was called to the scene, where he was informed Hardeman had done the shooting. He went to Hardeman's home but he was not there. Later he returned and Hardeman was at home. He said this conversation was had between him and Hardeman:

'A. I asked him, I says, 'Did you shoot that girl?' and he says, 'Yes, sir,' and I says, 'What did you do with the pistol?' and the said he lost it going across Mr. Jeff Wilkins pasture.

'Q. Did he say what kind of pistol it was? A. Said it was a .32 automatic.

'Q. Did he make any further statement? A. He said he didn't intend to shoot her, said he intended to shoot through her coat and scare her.

'Q. Did he make any statement with reference to spending his money? A. Yes, sir.

'Q. What statement did he make? A. He said she was spending his money and doing him wrong.' He arrested Hardeman and placed him in jail.

Mr. J. C. Sledge, operating a mercantile business in Duck Hill and who had known Hardeman for a number of years, testified that on Monday morning after this occurrence Sunday night, Hardeman called him over the telephone and asked Mr. Sledge to sign his bail bond. Mr. Sledge gave this account of the conversation: 'A. He called me and said he wanted me to come down and make his bond. I says, 'What is the matter, Elbert?' and he says 'I shot a woman up there last night.' I says, 'What in the world did you do that for?' and he says, 'She was meddling in my business."

Fred Houston, the husband of Dora Marie, testified they were happily married; that they had three children--13, 14, and 16 years of age; that he was working in Rockford, Ill., because he could make more money there than at Duck Hill with which to support his wife and support and educate the children; that he sent money home each month; that he received a telegram notifying him of the tragedy and came immediately but his wife was dead upon his arrival.

That constitutes the evidence on behalf of the State.

The defense recalled Miss Frances Ayles and she was permitted by the court to tell the jury that a short time before the death of Dora Marie she said, in referring to the shooting, 'We were playing.'

The defendant then took the stand. He was 35 years of age; married but separated from his wife; had children, without stating the number or their whereabouts; said he was living alone; that he had been intimate with Dora Marie for two years; that on that Sunday, shortly before sundown, he had seen Dora Marie and they had made an engagement for him to come to see her that night but that she said the children had visitors and he would have to come late; he did come about eleven or a little after; knocked on the door; that she dressed and came out; that they went to the rear of the residence, near the woodshed, with their arms around each other; that they started the act of sexual relations. He then described the shooting in these words: 'Well, we was standing there, sir, with our arms around each other and the gun was right here in my belt, it wasn't under my shirt, just under my belt, and we was hugged up with each other and the gun slipped and she caught it, she put her hands on it first, the gun went back with the barrel part up that way (illustrating) and the magazine laying forwards, and she caught it and I did too, and just in a move the gun went off and she stood there a few minutes and she had this arm still over here, and she stood there just a second or so and says, 'You have shot me,' and I says, 'No, I haven't,' and she went to trembling and I helped her set down and held her hand until her mother got near there.' He then left, intending to go to the home of his father, but changed his mind; that he jumped a ditch and lost the pistol and could not find it and then proceeded to his home, where he was arrested by Mr. Blakely, the Town Marshal. Apparently the pistol was never produced.

He denied that Willie B. Shaver said anything to him, as she had testified. He said he left the scene because he didn't know what she might do.

He denied that he had made any threats against Dora...