Hendrix v. State

• Decision Date: 06 May 1935
• Docket Number: 31425
• Citation: 161 So. 151,172 Miss. 589
• Court: Mississippi Supreme Court
• Parties: HENDRIX v. STATE

161 So. 151

172 Miss. 589

HENDRIX v. STATE

No. 31425

Supreme Court of Mississippi

May 6, 1935

Division B

1 HOMICIDE.

In murder prosecution, refusal to admit all threats and previous manifestations of hostility by deceased against accused held error, where there was recent declaration of reformation by deceased and it became material point for decision whether that declaration of reformation was in good faith, and whether accused would be justified in disbelief of good faith thereof.

2 HOMICIDE.

Wherever there is doubt, confusion, dispute, or conflict as to origin of difficulty, or as to who was aggressor in difficulty which resulted in death, and when such fact is pivotal one in case testimony of uncommunicated threats, and nature and character of previous difficulties, wantonly provoked by deceased, is admissible, provided testimony shows some overt act on part of deceased at time of fatal encounter.

HON. T. E. PEGBAM, Judge.

APPEAL from the circuit court of Chickasaw county, HON. T. E. PEGRAM, Judge.

Otis Hendrix was convicted of manslaughter, and he appeals.

Reversed and remanded.

Rush H. Knox, of Jackson, for appellant.

The testimony with reference to all of the threats and conduct of the deceased which had a tendency to show the hostile feeling on the part of the deceased toward the appellant was competent, and the trial court committed error in refusing to allow the defendant in the trial of this case to tell the jury what happened in the poolroom the night before the killing the next day, as well as the hostile demonstrations on the part of the deceased the day before the killing when deceased came to Wofford's store looking for the appellant, armed with a shot gun; and what the deceased said when he came in Wofford's store armed with a shotgun at the time appellant was in hiding, and what the deceased said then and there to Wofford with reference to this appellant was also competent; the court holding that the fact that the deceased, armed with a shotgun, went to Wofford's store looking for the deceased was incompetent, and in his ruling held that all this evidence was incompetent and stated that he was so holding in order that the defendant could get the benefit of the adverse ruling.

Brown v. State, 88 Miss. 166, 40 So. 737; Lee v. State, 160 Miss. 618.

The court erred in refusing to allow the appellant to explain to the jury just why he shot and killed the deceased.

It is true that the jury are to determine all issues of fact, but they should be given the advantage of all available evidence as to the facts in order that they may justly and rightfully decide the issue.

Underhill on Criminal Evidence (2 Ed.), section 59.

Certainly the accused should have been permitted on a direct-examination to explain his conduct, and to state to the jury why he killed the deceased, and he should have been permitted to "fully unfold and explain his actions and state the motives which he claims prompted them." He knew better than anyone else what intention was present in his mind when he fired the fatal shot.

Hester v. State, decided by this court on April first, No. 31608; Underhill on Criminal Evidence (2 Ed.), section 59.

Wm. H. Maynard, Assistant Attorney-General, for the state.

The lower court's ruling with reference to the admissibility of testimony as to threats was proper.

We are well aware of the rule laid down by previous decisions of this court that merely because a threat may be conditional is not sufficient reason to exclude it. However, an examination of these cases, shows that the condition laid down in the threat was later met.

Echols v. State, 99 Miss. 683, 55 So. 485; Clark v. State, 123 Miss. 147, 85 So. 188.

If the court considers the action of the circuit judge in refusing to allow this alleged threat to be introduced erroneous, this erroneous action would not be sufficient to require a reversal of this case. At various other places in the record the circuit judge allowed appellant to introduce four other distinct threats made by deceased against appellant.

Powell v. State, 145 Miss. 252, 110 So. 515; Richards v. State, 155 So. 429.

Appellant's seventh assignment of error is that the court erred in refusing to allow appellant to explain to the jury why he shot and killed the deceased, the testimony upon this point being where appellant was asked: "Explain to the jury why you shot him?" The lower court ruled this question out on the ground that this was for the jury to determine. Admitting, for the sake of argument, that the court should have allowed this question to be answered by appellant, we cannot see how it would be reversible error, as previous to this question appellant was allowed to give a full explanation of why he had shot the deceased.

Argued orally by Rush H. Knox, for appellant, and by Wm. H. Maynard, for the state.

OPINION

Griffith, J.

Appellant, the defendant, was indicted for murder, and on the trial was convicted of manslaughter. He assigns as error, among other assignments, that the court excluded from the jury much of the material evidence offered by defendant of previous threats and assaults and other hostile maneuvers by deceased against the defendant, all unprovoked by the defendant.

In reviewing that assignment we must take the case as made by the undisputed proof, plus the evidence introduced by the defendant, plus the evidence offered by the defendant but excluded by the court. The case thus considered is this:

There had been an enmity on the part of the deceased towards the defendant for some months, the exact time not being disclosed by the record, characterized by wanton insults, abuses, and assaults by deceased upon the defendant. For instance, on one occasion some time before the homicide, the deceased had taken some money from the defendant in a neighborhood store and upon protests by the defendant, the deceased kicked him around, stating at the time that if the defendant did not like it he would kill him. About two weeks before the homicide, the defendant had informed the officers that the deceased was in possession of intoxicating liquors, which the officers destroyed. When the deceased learned of the defendant's part in this matter, the deceased met him in Paine's store, and cursed him most bitterly and uttered the most vicious threats against him. In the early afternoon of the day before the killing the defendant went to the light plant which was being operated by the deceased to see a negro there employed, and the deceased repeated his abuses and threats, and, with a knife, ran the defendant away. Some short time thereafter, and on the same afternoon, the deceased, with a...