Hardy v. State

• Decision Date: 07 June 1926
• Docket Number: 25781
• Citation: 108 So. 727,143 Miss. 352
• Court: Mississippi Supreme Court
• Parties: HARDY v. STATE. [*]

108 So. 727

143 Miss. 352

HARDY v. STATE. ^[*]

No. 25781

Supreme Court of Mississippi

June 7, 1926

Division B

1 HOMICIDE.

In prosecution for murder, admitting testimony of details of previous altercation between deceased and accused held prejudicial error.

2 HOMICIDE.

Previous difficulty between deceased and person accused of murder and threats made at such time are admissible.

3. CRIMINAL LAW. Instruction that malice is implied from nature of weapon, and that use of deadly weapon is evidence of malice, incorrect as omitting deliberate use of weapon, held not misleading, in view of other instructions.

Instruction in murder trial that malice is implied from nature and character of weapon used, and that use of deadly weapon not in necessary self-defense is evidence of malice, while incorrect as omitting "deliberate" before the words "use of deadly weapon," held not misleading in view of other instructions.

4. HOMICIDE. Whether presumption of guilt from deliberate use of deadly weapon has been overcome is question for jury.

It is question for jury whether presumption of guilt from deliberate use of deadly weapon has been overcome by evidence so as to change its character from an unexplained killing with deadly weapon.

5. WITNESSES. Permitting state in murder prosecution to cross-examine husband of deceased as to statements relative to getting divorce and to contradict such testimony in rebuttal held proper (Code 1906, section 1923 [Hemingway's Code, section 1583]).

Under Code 1906, section 1923 (Hemingway's Code, section 1583) permitting state on cross-examination in prosecution for murder to question husband of deceased relative to statements made to another as to getting divorce from his wife, and in rebuttal to introduce witness contradicting such testimony held proper.

6. WITNESSES.

Witness in murder prosecution may be interrogated on cross-examination as to interest, bias, or prejudice, to bring out existing or previous relationship of witness towards crime or accused.

7. CRIMINAL LAW.

Credibility of witnesses is always issue of fact for jury.

HON. R. S. HALL, Judge.

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

Carrie Hardy was convicted of murder, and she appeals. Reversed and remanded.

Judgment reversed and remanded.

D. B. Cooley and H. E. J. Ross, for appellant.

I. The basis of the first and second assignments of error is the admission, over objection of the appellant, of certain testimony of the witnesses Adam Hill and W. D. Hendry. Adam Hill was asked on cross-examination if he did not have a conversation with Hendry prior to the killing in which he threatened the life of the deceased. This question was objected to by the appellant. He answered that he did not make the threat. Hendry was introduced by the state in rebuttal and testified that Adam Hill did make the threat in the conversation with him in his store, prior to the difficulty.

Hendry testified that at the time they were talking about Adam getting his divorce. This alleged conversation took place in the absence of the appellant. So far as the record shows she had no knowledge of it whatever.

We submit that the court committed fatal error in the admission of this testimony for the following reasons: (1) Witnesses cannot be contradicted as to their own statements about immaterial matters. (2) Threats made out of the presence of the accused, even if made by a co-conspirator, are inadmissible before a conspiracy is established. There was no charge of conspiracy in this case and no evidence tending to establish one. It is hard to conceive upon what theory the court permitted this testimony to go to the jury. See Jeffries v. State, 28 So. 948; Williams v. State, 19 So. 826; Drake v. State, 29 Tex.App. 269.

II. The court erred in admitting the testimony of Hendry as to the threat made by the witness, Adam Hill, without first showing a conspiracy existed between the witness and the appellant. As above stated, there was no charge of a conspiracy and not a word of testimony tending to establish one. See Rich v. State, 86 So. 770.

III. The basis of the third assignment of error is the admission of the testimony of Sallie Crosby and Joe Marshall, her son, about a previous difficulty between appellant and the deceased. This difficulty is alleged to have occurred on the Sunday night before the killing on Wednesday night. The two difficulties were wholly disconnected. This court has condemned testimony of this character in a number of cases. Rich v. State, 86 So. 770; Hughes v. State, 38 So. 33; Raines v. State, 33 So. 19.

IV. Another objection we offer is to the instructions for the state submitting to the jury the question of whether appellant was guilty of murder. There is an entire absence of evidence of a deliberate design on the part of the appellant to effect the death of the deceased. The evidence, we submit, overwhelmingly shows that the appellant acted without malice. It shows that appellant went on a lawful mission to take the witness Adam Hill his supper. The evidence shows that it was her custom to do this. It shows that she did not know the deceased would be present. The evidence further shows that appellant undertook to leave the place of the difficulty before the deceased came up, in order to avoid trouble. The testimony of the appellant shows that she acted in necessary self-defense. Her testimony is corroborated by the eye-witness Adam Hill. The facts, as detailed by these two witnesses, were not contradicted by the state.

This court has held in several cases that where there is an absence of evidence of deliberate design on the part of the appellant to effect the death of the deceased, it is error to submit to the jury the question of whether or not the appellant is guilty of murder. Jones v. State, 54 So. 724; Staiger v. State, 70 So. 690.

The court erred in giving an instruction for the state that the use of a deadly weapon in a difficulty, not in necessary self-defense, is, in law, evidence of malice. This is not a correct announcement of the law on this question. The correct rule is that the deliberate use of a deadly weapon, in a difficulty, not in necessary self-defense, is, in law, evidence of malice. This instruction omits the word deliberate, which, we contend, is fatal error. There can be no malice without deliberate design.

Again, by this instruction, the district attorney invoked in behalf of the state the presumption of malice which arises from the killing with a deadly weapon. Our court has held that it is the duty of the state to introduce some of the eye-witnesses to a homicide; and that if the state fails to do so and the defendant introduces the eye-witnesses, then the state is bound by their testimony. Patty v. State, 88 So. 498.

This court has held that the giving of an instruction on the presumption of malice from the use of a deadly weapon, where all the facts and circumstances attending the killing were fully shown by the testimony, is error. Godwin v. State, 19 So. 712; Patty v. State, supra; Cumberland v. State, 70. So. 696.

Rufus Creekmore, Special Assistant Attorney-General, for the state.

I. Counsel object first to the action of the court in permitting the district attorney to cross-examine Adam Hill on the question of whether he did not state to Mr. Hendry that "he wanted a divorce from his wife and was going to get it, and if she did not quit fooling with him he was going to kill her;" and upon Adam's denial of such statement to the witness, to the further action of the court in permitting the witness Hendry to contradict him by testifying that such statement was made by Adam to him. Counsel say that this was an immaterial matter and one irrelevant to the issue and so the court should not have permitted it to be introduced in evidence.

On this point counsel cite Jeffries v. State, 28 So. 948; and Williams v. State, 19 So. 826, which cases held that where a witness is questioned on cross-examination as to the irrelevant and collateral matters he cannot be impeached as to this testimony by proving contradictory unsworn statements made by him out of court.

This general rule announced in the Williams case, supra, is not applicable here because the question which arises in the instant case is not what the general rule of law may be, but whether the facts in this particular case come within that particular rule of law or the exemption thereto. The rule is also well settled that a witness may be cross-examined as to his interest in the outcome of the cause or to his feeling or bias against any party to the cause. This right of examination of the witness is specifically given by the statute itself. See section 1583, Hemingway's Code (section 1923, Code of 1906); and Underhill on Criminal Evidence (2 Ed.), sec. 222, p. 405.

These statements made by Adam and about which he was asked on his cross-examination were such as would show his bias or his interest in the suit and, therefore, they were not collateral and the court was not in error in permitting the examination on these points.

The facts distinguish the case at bar from the Williams case because in that case the cross-examination of the witnesses with reference to the statements made by her had no bearing on the case whatsoever, and could in no way tend to show her interest, prejudice or bias in or toward any one concerned with the case or its outcome; while here they go to the root of the matter. Newcomb v. State, 37 Miss. 383, is directly in point. See to the same effect: McMasters v. State, 81 Miss. 374, 33 So. 2; Upchurch v. State, 96 Miss. 586, 51 So. 810; Magness v. State, 106 So. 195, 63 So. 352; Rouse v. State, 107 Miss. 427, 85 So. 501.

II. Counsel next...