Harley v. State

• Citation: 345 So.2d 1048
• Decision Date: 11 May 1977
• Docket Number: No. 49565,49565
• Parties: Clarence HARLEY v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 1048

345 So.2d 1048

Clarence HARLEY v. STATE of Mississippi.

No. 49565.

Supreme Court of Mississippi.

May 11, 1977.

H. Clark Coleman, Jr., West Point, John P. Fox, Houston, for appellant.

A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before GILLESPIE, ROBERTSON and LEE, JJ.

ROBERTSON, Justice, for the Court:

Clarence Harley was indicted by the grand jury of the Circuit Court of the First Judicial District of Chickasaw County, for the murder of Emmett Kirby, Jr. He was convicted of manslaughter and sentenced to serve a term of eighteen years in the state penitentiary with six years being suspended.

There were six assignments of error but we will discuss only two. We think there is merit in those two and are of the opinion that the conviction and sentence should be reversed and this case remanded for a new trial.

The two assignments of error, which we are sustaining, contend:

The trial court erred in refusing to permit the appellant to present to the jury certain threats made by the deceased against the life of the appellant which were communicated to the appellant by third parties.

In a murder trial wherein a principal issue was appellant's state of mind upon confrontation by deceased and the reasonableness and apparent necessity of appellant's actions, the trial court erred in excluding, as hearsay, prior death threats by deceased against appellant communicated to appellant by third parties.

The victim of the fatal shooting, Emmett Kirby, Jr., was the brother of appellant's wife, Ladester Kirby Harley. There was bad blood between Harley and his brother-in-law, Kirby, extending back into 1974. The appellant was allowed to testify of threats on his life made directly to him by his brother-in-law, Emmett Kirby, Jr.; he was also allowed to testify of threats against him made by his (appellant's) wife and threats made directly to him by his stepson.

Appellant was not allowed to testify of threats by the deceased which were communicated to Harley by his wife and stepson. Harley attempted to testify of these threats to show his state of mind on November 7, 1975, the day of the fatal shooting.

On Wednesday, two days before the fatal encounter on Friday, appellant had a run-in-with his 16-year-old stepson Wendell Cousin, who lived in his home. This testimony was offered out of the presence of the jury:

'A Wendell Cousin. He throwed a .25 automatic on me also on that Wednesday morning, and that's when the last remarks were made about her brother killing me, and that was on Wednesday. And that's when I went and purchased that gun Wednesday evening when I got off from work, when the remarks were made that morning about her brother killing me.

'Q Tell specifically what was said there about him killing you.

'A When her son had that pistol and was trying to get to me. He was in the living room and I was in the kitchen, and he was trying to get to me with that gun and was begging his mother to let him kill me. His mother, she was fighting with him to keep him from killing me because she didn't want her son involed. She was fighting with him-well, not fighting. She was scuffling him, trying to keep him out of the room where I was, and he had a .25 automatic, trying to get to me. And so that was the last words. She said, 'No, don't kill him.' Said, 'Emmett, Jr.'s going to kill him.' That was on Wednesday morning after Halloween night.

'Q Now that was two days before this incident?

'A That's right, and this trouble took place that Friday.

'Q Tell the Court what your state of mind was after getting reports of these threats.

'A I was real afraid for my life because it was more than one was threatening my life. Along with Emmett, Jr. was my wife and stepson, which was three of them right there...