Harper v. State

• Citation: 83 Miss. 402,35 So. 572
• Court: United States State Supreme Court of Mississippi
• Decision Date: 11 January 1904
• Parties: JOHN J. HARPER v. STATE OF MISSISSIPPI

35 So. 572

83 Miss. 402

JOHN J. HARPER v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

January 11, 1904

FROM the circuit court of, second district, Perry county. HON JOHN R. ENOCHS, Judge.

Harper appellant, a practicing physician, was indicted, tried and convicted of murder, the killing of one William B. Lawrence sentenced to the penitentiary for life, and appealed to the supreme court.

The facts are stated in the opinion of the court.

Reversed and remanded.

A. J McLaurin, for appellant.

The first twelve assignments of error are predicated of the position that there was an eye witness to the killing, by whom the prosecution proved positively that Harper did not do anything to aid in the killing, and did not seem to say anything to abet it, and that the evidence offered of what transpired after the shooting could not throw any light on what occurred at or before the shooting. Of course, there are cases where subsequent events throw light on antecedent occurrences, but this is not one of them. Of course, in cases depending upon circumstantial evidence, every circumstance that sheds light upon the issue is admissible; but this rule ought not to admit, on the contrary it excludes, evidence of circumstances that do not shed light on the issue. Shaw v. State, 79 Miss. 23; State v. Hickman, 6 Am. St. Rep., 58.

The defendant's cause ought not to be cumbered with such irrelevant testimony, often introduced because it is supposed to show that he is a bad man, not to show that he is guilty of the particular offense for which he is being tried--but to get a conviction through the prejudice thus engendered or fed.

The prosecution proved that as soon as decedent was shot, Dr. Harper informed Johnson, and had him send for Dr. Denson, and the justice of the peace and constable, and administered medicine to him; and when the officers and Dr. Denson and Mr. Gunter and others came he showed them the wounds, and had decedent, then unconscious, carried to a small house and put on a cot with a quilt or two under him and a blanket or two over him; and when the small room was crowded with men, vitiating the atmosphere, he closed the door and locked it when he went off to be gone a few minutes, to all of which the defendant objected, because it could not form the basis for any just inference that Dr. Harper participated in the killing. These facts might form the basis of a suspicion, but not of an inference. For they could as well be the acts of an innocent man as of a guilty one. This being so, they ought not to operate against the defendant. Pitts v. State, 43 Miss. 484. Josephine v. State, 39 Miss. 613; State v. Clouser, 69 Iowa 318.

If they amount only to suspicion or probability, however great, they are worth nothing. Algheri v. State, 25 Miss. 584; 1 Stark. on Ev., 572; State v. Clouser, 69 Iowa 318.

Phillips, an eminent author, tells us: "It is the exclusion of every other reasonable hypothesis than that of the guilt of the accused, that invests mere circumstances with force of proof." Pitts v. State, 43 Miss. 484.

The prosecution introduced evidence, over appellant's objections, that Dr. Harper told some persons that the decedent had a lingering disease, and contend that he was doing so to conceal the fact that decedent was shot, and infer therefrom that appellant participated in the killing. This was error. Aiding a murderer in concealing even the body of his victim could not make the aider guilty of participation in the murder--it would make him guilty as an accessory after the fact. Harrel v. State, 80 Am. Dec., 95, note p. 97; White v. People, 81 Ill. 338; Melton v. State, 43 Ark. 371. A man charged with murder cannot be convicted as an accessory after the fact. Phillips v. State, 8 Am. St. Rep., 471.

In addition to the fact that no reasonably certain inference can be drawn from the circumstances, even though they were proved, and, therefore, are worthless, and, if worthless, inadmissible, the testimony by which they are sought to be proved is exceedingly unreliable. Judge REDFIELD said of such testimony: "In a somewhat extended experience of jury trials, we have been compelled to the conclusion that the most unreliable of all evidence is that of the oral admissions of the party, and especially where they purport to have been made during the pendency of the action, or after parties were in a state of controversy. It is not uncommon for different witnesses of the same conversation to give precisely opposite accounts of it; and in some instances it will appear that the witness deposes to the statements of one party as coming from the other, and it is not very uncommon to find witnesses of the best intentions repeating the declarations of the party in his own favor as the fullest admissions of the utter falsity of his claim. When we reflect upon the inaccuracy of many witnesses, in their original comprehensions of a conversation, their extreme liability to mingle subsequent facts and occurrences with the original transactions, and the impossibility of recollecting the precise terms used by the party, or of translating them by exact equivalents, we must conclude there is no substantial reliance upon this class of testimony." I Greenleaf on Evidence, addendum by Redfield to, sec. 200.

The rejection of Boykin's testimony was clearly wrong.

The prosecution introduced testimony which, it was claimed, tended to show that Dr. Harper was trying to conceal the fact that decedent had been shot. The defendant offered to prove by Boykin that during the same time he had asked Dr. Harper what was the matter with deceased, and the defendant told him he had been shot. The prosecution objected to this, because, they said, the defendant could not make testimony for himself. The only way defendant could refute the claim of the prosecution was by showing that he was not concealing the fact by proving that he was telling it.

It was not making testimony for himself. He was not trying to prove that the man was shot, but that he was telling, where occasion required, that decedent was shot, and, therefore, not concealing it.

Such testimony is admissible "wherever the fact that such communication was made, and not its truth or falsity, is the point in controversy." 1 Greenleaf on Ev., sec. 101 (15th ed.); McClary v. Anthony, 54 Miss. 711; Jones v. State, 25 Am. St. Rep., 715; 1 Greenleaf on Ev., sec. 101 (15th ed.); McCleary v. Anthony, 54 Miss. 711; Jones v. State, 25 Am. St. Rep., 715.

There is another error equally as clear. It was permitting Mrs. Wade to tell what Mrs. Howse said to Dr. Harper. The expression of opinion of Mrs. Howse that the deceased had been murdered went to the jury. Mrs. Howse was not an eye witness of the shooting, but she was not far away, and who can tell what influence her opinion exerted over the minds of the jury?

Statements made by others in the presence of a defendant can only be introduced against him where he is called upon to speak in denial, but does not speak, and, therefore, it may be inferable that he intends to admit them: 1 Greenleaf on Ev. (15th ed.), sec. 197; Noonan v. State, 1 Smed. & M. (9 Miss.), 571.

"But, in regard to admissions inferred from acquiescence in the verbal statements of others, the maxim, qui tacet consentire videtur, is to be applied with careful discrimination." 1 Greenleaf on Ev. (15th ed.), 199, 200; Campbell v. Henry, 45 Miss. 331; James v. State, 45 Miss. 576; Kendrick v. State, 55 Miss. 450. The language may have been misunderstood. Gallman v. Perrie, 47 Miss. 143.

The thirteenth and fourteenth assignment of error grow out of the admission of testimony as to the condition of Lawrence's eyes Saturday evening, and then that bloody water seemed to be running out of one of them Sunday morning, without showing that no one else could have had access to him but this defendant in the interim. State v. Wilks, 50 Mo. App., 159. It could afford nothing better than a basis for a suspicion, and as suspicions ought, by all the authorities, to be excluded that which affords nothing but their bases ought to be excluded. The court is bound to decide as to what facts may be the basis of a necessary inference, and should not admit evidence of facts that could not be such basis, although they may be the basis of a suspicion, however strong. Shaw v. State, 79 Miss. 23.

Without showing that no one else could have had access to him no necessary inference could be drawn that Dr. Harper injured decedent's eye. Webb v. State, 73 Miss. 461; Phillips, p. 23. We have the doubtful supposition--not necessary inference--that Dr. Harper injured the man's eye; and from this doubtful supposition we suppose that Dr. Harper participated in the killing of Lawrence, proving one doubtful thing by another, which good sense, as well as Phillips, says cannot be done.

Phillips, in Introduction to Fam. Cases, 23, says:"The law never admits of an inference from an inference.Two imperfect things cannot make one perfect." State v. Wilks, 50 Mo. App., 159.

It was error to admit the testimony of witness Carr as to what Dr. Harper said to him Monday night, when Harper was appealing to Carr not to join in getting a petition to have him removed from his position as doctor for the camp, a petition that never was written, but was discussed. Using the language of Mr. Chief Justice Whitfield in the case of Owens, 80 Miss. 510, "It is impossible to take his language and work out of it, by any just reasoning," any confession that he had "injured, or aided in the injuring, of anybody." See also, State v. Clouser, 69 Iowa 318-19.

This court has expressly condemned such an instruction as the first one given for the state, in that it leaves out all idea of intention, malice, premeditation or deliberation in the...