Hill v. State

• Decision Date: 28 February 1887
• Citation: 64 Miss. 431,1 So. 494
• Court: Mississippi Supreme Court
• Parties: R. J. HILL v. THE STATE

1 So. 494

64 Miss. 431

R. J. HILL v. THE STATE

Supreme Court of Mississippi

February 28, 1887

APPEAL from the Circuit Court of Panola County, HON. A. T. ROANE Judge.

R. J Hill was indicted for the murder of one Henry Brown. Brown was wounded by a stab in the breast on Tuesday, and died from its effects on the next following Monday. On Sunday, the day before his death, a justice of the peace was sent for, and Brown made a statement which was taken down by the justice. This statement was offered by the State as the dying declaration of Brown, and objected to by the defendant. The jury retired, and the State introduced evidence to support the introduction of the statement. Mrs. Brown, the widow of deceased, testified that on Sunday, a short while before the statement was made, her husband said that he was going to die and would not get well. Dr. N. C. Knox testified that he saw deceased while the statement was being made, and that Brown was in a very critical condition, "and I thought that he would live but a short while unless there was a great change." This statement was made about twelve M. on Sunday. The defendant then showed by several witnesses that during the afternoon of that day Brown expressed the hope that he would get well, and by others that he expressed the belief that he would get well. The defendant further showed that deceased had often said "that there was no hell, or hereafter, and all the punishment a man got was in this world." The jury were brought in, and the court admitted the statement as the dying declaration of Brown over objection by the defendant. The State then offered in evidence the written testimony of the defendant, R. J. Hill given voluntarily in his own behalf on his preliminary examination before the justice of the peace, he being charged by affidavit with the murder of Brown. This testimony was admitted over objection by defendant. It was as follows "Mr. Brown came over to my house on Tuesday morning about daylight--came after some water. I asked him how they were getting along working for Major McCullar. He said 'Pretty well,' and he went out of the gate with a bucket of water. I asked him about something he said about giving me a good beating. He said, 'By God! I will yet if you fool with me.' I told him he had threatened to kill me. He said he did not say he would kill me. I told him I could prove it. He asked who by. I said, 'By Jim Ewbanks.' He then picked tip his bucket, and I told him I did not like for any man to run over me in any such style as that. He turned around to me and said, 'By God! if you don't like it, just come out here, and I can satisfy you.' He started toward me, pushing up his sleeves when he saw me come. He turned to get a stick and reached down toward the ground, but did not get it. I got my knife out. He put his right hand in his pocket and held it open with his left, and came toward me, and I went toward him with my knife in my hand, and then I cut him, advancing face to face, and cut him one time." The defendant offered the same evidence in relation to the religious belief of deceased as was shown to the court when it had under consideration the admission of the statement of deceased as a dying declaration. The court refused to admit this evidence, and the defendant excepted.

The court instructed the jury for the State as follows:

"1. The court instructs the jury that no threats, however recently made, or however violent and vindictive, afford any justification or excuse for taking human life. But for defendant to be excusable or justifiable in killing Brown, the evidence must show that at the time of the killing there was some overt act upon the part of deceased indicating a present design and intention then and there to kill the defendant or to do him some great bodily harm, and there was really or apparently imminent danger; that is, immediate, pressing, and urgent danger, real or apparent, of such harm being accomplished. And this danger or necessity to kill must not have been brought upon the defendant by his own willful wrong, fault, or contrivance, and if so brought on then he would not be justifiable even though he was in danger of loss of life or great bodily harm when he killed Brown."

"2. If the jury believe from all the evidence that the defendant killed Brown, and further believe from all the evidence that in the combat which resulted in Brown's death that the defendant was the aggressor, that he provoked, sought, and brought about the difficulty, and then, after provoking and bringing about a difficulty in which he, defendant, was the aggressor and at fault, he stabbed and killed Brown, then in such case the defendant would not be justifiable, even though the jury should believe from the evidence that defendant was really or apparently in imminent danger of great bodily harm at the hands of Brown when defendant cut him, but under this state of facts, if established by the evidence, he would be guilty of manslaughter."

The jury found the defendant guilty of manslaughter, and he was sentenced to two years in the penitentiary. Thereupon he appealed to this court.

Affirmed.

W. S. Chapman, for the appellant.

1. The burden of proof rested on the State to show that Brown's declarations were made under a sense of impending death. Declarations of this character should be admitted with great caution. Brown v. The State, 3 George 442; 1 Greenleaf, § 162; 13 S. & M. 506.

If it appears that he had any hope of living, however slight, the declarations were not competent and were inadmissible. 1 Greenleaf 158; 55 Miss. 430; 9 S. & M. 715; 3 George 433; 1 Cushman 322.

The statement of deceased is incompetent on another ground. Brown was proven, and it was not attempted even to be controverted, to be an infidel. He did not believe there was any hell or hereafter, and did not believe in future rewards and punishments. In 1 Greenleaf, § 157, is to be found this language: "And as an oath derives the value of its sanction from the religious sense of the party's accountability to his Maker, and the deep impression that he is soon to render to Him the final account, wherever it appears that the declarant was incapable of this religious sense of accountability, whether from infidelity, imbecility of mind, or tender age, the declarations are alike inadmissible." Therefore it was not admissible, because he was under no compulsion to tell the truth and was an unbeliever.

But it is claimed that by our code the common-law rule laid down by Greenleaf and others is changed. Section 1604, Code 1880, is as follows: "No person shall be incompetent as a witness because of defect of religious belief."

If this language lets in the evidence of an infidel at all, then I reply: This refers to a sworn witness before the court and original testimony, and not to the hearsay evidence of an infidel, called his dying declaration.

2. The court erred in excluding from the jury the testimony tending to show that Henry Brown had no religious belief whatever in his lifetime. This evidence was offered to discredit the hearsay declarations of Brown introduced by the State and admitted before the jury by the court. Certainly the jury were entitled to know all the facts surrounding Brown when he made his declaration in order that they might weigh this evidence intelligently. All the books hold, as well as this supreme court, that the jury, who are the sole judges of the credibility of witnesses and also of the credibility of the evidence introduced before them, are entitled to all the facts tending to sustain or impeach it. 9 S. & M. 120; 1 Greenleaf, § 160; 1 Cushman 355; Best's Principles of Evidence, § 165; Moore v. State, 12 Ala. 764; Starkey v. People, 17 Ill. 17.

3. That the admission of the testimony of Hill taken in a former trial was an error hardly admits of an argument, this court having settled the rule three times in the cases respectively of Josephine v. The State, 39 Miss. 614; Major Jackson v. The State, 56 Miss. 312, and Farkas v. The State, 60 Miss. 848.

W. S. Chapman also made an oral argument.

P. C. Chapman, on the same side.

The first instruction is obnoxious to the objection that it is vague, uncertain, and indefinite in failing to inform the jury what would constitute "willful fault, wrong, or contrivance" on the part of Hill. This instruction opens a wide field of speculation and is no guide for the jury. The charge to a jury must be plain and explicit, so plain and explicit that there can be no danger of misleading, no field for speculation, but a well-defined rule of law to direct them. Archer v. Sinclair, 49 Miss. 347; Payne v. Green, 10 S. & M. 507; Southern Railway Co. v. Kendrick, 40 Miss. 374. It is also contradictory to the defendant's instructions, and where an erroneous instruction is given the error is not cured by giving another, setting out a rule in direct conflict with the rule stated in the erroneous instruction. Herndon v. Henderson, 41 Miss. 584; House v. Fultz, 13 S. & M. 39. The jury were left to adopt such course as they might see proper, to regard or disregard either instruction in making up their verdict. Herndon v. Henderson, 41 Miss. 601. It would seem that this instruction cuts off all right of self-defense, and if Hill by any willful fault brought on the difficulty, though intending to use no deadly weapon, if Brown resorted to one, he would only be justifiable if he let Brown slay him. In other words, he should fold his hands and receive his death-wound at the hands of Brown without raising a hand to ward off the danger.

The second instruction is erroneous, because there was no evidence to support it. I claim that Hill was not the aggressor, and I can find no evidence tending to show that he was. If it was inferred...