Hathorn v. State

• Decision Date: 09 February 1925
• Docket Number: 24647
• Court: Mississippi Supreme Court
• Parties: HATHORN v. STATE. [*]

102 So. 771

138 Miss. 11

HATHORN v. STATE. ^[*]

No. 24647

Supreme Court of Mississippi

February 9, 1925

Division B

1. HOMICIDE. When dying declaration is admissible stated.

To make a dying declaration admissible in evidence, it must appear that the declarant was under a sense of impending death and had abandoned all hope of recovery. If there is a reasonable doubt that the declarations were so made, they should be excluded.

2. CRIMINAL LAW. Confession must be shown to have been free and voluntary; upon objection proof of free and voluntary character should precede admission of confession.

Before a confession is received in evidence, where it is objected to, it must be shown that it was free and voluntary, and where objection is made, the proof that it was free and voluntary should precede the admission of the confession.

3. CRIMINAL LAW. Confession should be introduced in proof in chief.

A confession should be offered in the proof in chief of the case and not reserved to be used in rebuttal of the testimony of the defense.

4. CRIMINAL LAW. Accused entitled to acquittal, when evidence raises reasonable doubt as to whether killing was in self-defense.

It is improper to give an instruction for the state in a criminal prosecution to the effect that before a killing can be justified on the ground of self-defense it must appear to the reasonable satisfaction of the jury, from the whole evidence, that the defendant at the time he cut and stabbed the deceased had reasonable ground to believe and did believe the deceased was about to kill him. All that is required in such case is that the evidence raise a reasonable doubt in the minds of the jury as to whether the killing was in self-defense or not.

HON. R S. HALL, Judge.

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

Jim Hathorn was convicted of murder, and he appeals. Reversed and remanded.

Reversed and remanded.

A. T. L. Watkins, for appellant.

It is remotely possible that a jury might have convicted the defendant, if the incompetent testimony had been excluded, but this must, of course, be a matter of conjecture. But looking at it now, no one can tell what the verdict was based on, the jury could not, and I seriously doubt if this court can tell whether the dying declaration is in or not in, as a matter of evidence.

Beginning with Bell v. State, 72 Miss. 507, and as reannounced in the recent case of Sparks v. State, 74 So. 123, we say it is uniform law that a dying declaration is a question solely for the court in the absence of the jury, that is before the jury should be permitted to hear it. If damaging statements are heard by the jury, it might be impossible to disabuse their minds of it, even if they were directed to do so and if they tried. Some deadly vengeance may have seized their minds, by certain cruel acts set forth and they could not rid their minds of it. I have examined authorities from the Bell case above and the Owen case, 59 Miss. 547, and all the way down to date and I have yet to find a case where that issue is or should be left to a jury. It is stated in 89 So. 835, that a predicate must be laid. It must be in extremis and with full knowledge of his danger. The declaration must be limited to acts which caused death (not conclusions). It must be made under a fixed belief that death is impending, 98 So. 693. And the testimony must be such that would be competent if the witness were present. I take it that the statement, "struck me for nothing" would not be accepted by any court as competent evidence, it would require the facts and circumstances and not conclusions, 96 So. 459; 89 So. 835. It is hearsay unless made under a belief of impending death, 93 So. 57.

No one can say how long before death, the deceased made the statements, nor what his condition was at the time of making the statement. Dr. Green made his voluntary statements and showed conclusively that it did not come up to the requirements of law. Of course, the jury had heard them and no one could, nor can they now say, that it had no effect on the jury. I am unable to ascertain what portions of the declaration are excluded or what portions, if any, the court intended to exclude. But, I do say without hesitation, that none was competent as such, by any rule laid down by the courts. The court will observe that deceased was not trying to impress that appellant had injured him, but that "he did it for nothing," just a conclusion of a drunk negro.

We fail to understand why the court would attempt to exclude the dying declarations, as shown by Dr. Green and afterward let him return to the witness stand and contradict his former statements. His second statement is no nearer a dying declaration than the first.

A confession is not admissible in evidence, unless it is shown to be free and voluntary, beyond a reasonable doubt. 79 Miss. 517. A man in custody of an officer and being accused is not making a free and voluntary confession. The question whether or not the alleged confession is admissible, is a question of law to be decided by the court. The so-called confession was offered in rebuttal and no predicate had been laid to make it competent and nothing had been done to make it rebuttal testimony. It was an attempt to establish the corpus delicti by confession.

It was certainly error to hold back the witness Walley until after the state had made its case in chief and the defendants had rested and introduced it under the guise of rebuttal. Leading witnesses is a sin pardoned in advance. See record from beginning to end.

It was manifest error to try to impeach defendant on immaterial and irrelevant issues.

E. C. Sharp, Assistant Attorney-General, for the state.

The conditions which must exist to make a dying declaration competent are stated by this court in the case of Bell v. State, 72 Miss. 508. The first dying declaration when attempted to be introduced was excluded by the court for the reason that at the time of the making, as shown by the evidence, deceased had a slight hope of recovery. But several days later he made a similar statement when all hope had fled. Conditions and circumstances under which this last declaration was made were fully investigated by the court and by it determined that at the time of the making Watson had no hope of recovery.

If the jury had accepted the appellant's testimony as to how the cutting occurred, a verdict of not guilty would necessarily have been returned. The testimony was conflicting as to what really happened. The testimony of the state being ample to sustain a verdict of guilty, while on the other hand the testimony of appellant, if believed, warranted a verdict of not guilty.

The confession of appellant was free from any legal objection, so far as shown by the record. In fact, no effort was made to show that it was not voluntary and without fear of punishment or hope of reward. The jury was fully instructed as to the law.

We respectfully submit that the judgment of the lower court should be affirmed.

Argued orally by A. T. L. Watkins, for appellant, and by E. C. Sharp Assistant Attorney-General, for the state.

OPINION

ETHRIDGE, J.

The appellant was indicted and tried and convicted for the murder of one Judge Watson, a human being. The state proved part of its case by the dying declaration of the deceased which is assigned for error. The first witness offered by the state was the county prosecuting attorney, who testified that the deceased sent for him and made a statement, viz:

"I sent for you, you are attorney of this county, and I want to tell you before I die that this negro, Jim Hathorn, stabbed me for no cause in the world, and I don't feel like I will ever live--in fact, I know I will not live. I am bleeding inside now. If I die, I want you to know before I die the facts in this case, that you may know why it was done."

This statement was objected to and excluded on motion by the court. Thereupon the state offered Dr. J. E. Greene, a physician, who testified that he attended the deceased after he was cut; that it took two hours to control the flow of blood; that he kept him under his treatment for four or five days and then sent him to a hospital. The physician stated that the deceased made several statements with reference to his dying; that the deceased stated he did not think he would get well. "He told me several times, 'Doctor, I am going to die, I am filling up in here; I am a sick negro; I can't live.' I told him I thought probably I could pull him through, and he answered, 'I hope so, but I am filling up, and I am going to die; this is killing me--this filling up in here.'" Dr. Greene further stated that he saw the deceased twice a day, and that he said on one occasion. "If I get well, what about getting Mr. Fishel?" This evidence was excluded. Later on during the trial the Doctor was again called to the stand by the state, and was asked the following:

"Q. State when was the last time you saw and administered to him? A. I can't say the exact date.

"Q. What circumstances or occasion? A. I went to his home, and carried him from his home to the train, and sent him to the hospital at Laurel.

"Q. State whether or not Watson made a dying declaration to you on that occasion as to the fact of this stabbing. (Objected to; sustained.)

"Q. Did he make a statement to you that morning as to the circumstances of the stabbing? A. He did.

"Q. What did he say to you about his condition, if anything? A. He said he was coming back a dead negro.

"Q. Was that the last conversation he had with you? A. Yes.

"Q. State what the negro said to you about the circumstances of the stabbing, if anything, after he told you he was coming back a dead negro. A. He said, 'I am coming back a dead...