House v. State

• Decision Date: 25 January 1909
• Docket Number: 13,097
• Citation: 94 Miss. 107,48 So. 3
• Court: Mississippi Supreme Court
• Parties: JAY DEE HOUSE v. STATE OF MISSISSIPPI

48 So. 3

94 Miss. 107

JAY DEE HOUSE v. STATE OF MISSISSIPPI

No. 13,097

Supreme Court of Mississippi

January 25, 1909

FROM the circuit court of Lee county, HON. EUGENE O. SYKES, Judge.

House appellant, was indicted and tried for the murder of James Putt, convicted, sentenced to the penitentiary for life, and appealed to the supreme court.

The opinion of the court states the facts.

Affirmed.

Guy Mitchell, for appellant.

The fifth assignment of errors presents the question of the competency of the dying declaration of decedent. The declaration is manifestly the expression of an opinion and not one of fact, and therefore was improperly admitted. The defendant objected to the declaration made in these words "He shot me without cause;" then to make the objection more specific and to meet the requirements of the court as announced in the Lipscomb case, 75 Miss. 777, 21 So 657, as to objections being too general, defendant objected to the words "without cause" in such alleged declaration, because it was the expression of an opinion and not of a fact. There can be no point made in this case at bar that the objection is too general. In considering whether this statement was one of opinion or one of fact, the court must take into consideration the surroundings and relevant circumstances of declarant when the statement was made, and these things will materially aid in determining whether the statement is one of fact or not. The surroundings and circumstances as detailed in the evidence, negative the idea that this declaration is a statement of a fact. If the decedent were living and placed on the stand, he would not be permitted to testify that defendant shot him "without cause." The only thing he would be permitted to state with reference to it, would have been that he was making no hostile demonstration toward accused when the shot was fired. The cause for the shooting is clearly a question for the jury, and not one that can be answered by the decedent when under the shadow of death, when his mind must to some extent have been impaired; a time when inferences and opinions may appear to be facts, when the passions of anger and revenge are lingering to cloud the mind. The result of this practice would be to try a man out of court and without giving him a hearing.

In the Payne case, 61 Miss. 161, this court held that the statement "Shot me without cause" was one of fact. The court gave no reason for its conclusion, and only one authority was cited to sustain the position, and that was Wroe v. State, 20 Ohio St. 460, which upon careful examination, shows that the court was hardly justifiable in reaching that conclusion. The next case to announce this doctrine was Boyle v. State, 105 Ind. 469, 97 Ind. 322, and the court was divided on the proposition; the dissenting opinion being the much clearer and showing the fallacy of the court's reasoning. As we stated, our court relied upon the Wroe case above cited, and we find that case is based on a decision of the Kentucky supreme court, Handy v. Commonwealth, 5 Crim. L. Mag. (Ky.) 47. That case cites Rex v. Scaife, L. M & R. 551, where the statement before the court was: "I don't think he would have struck me if I had not provoked him;" and the court admitted this upon the sole ground that it. was in favor of the prisoner. The case of Handy v. Commonwealth, was also one in which the dying declaration was in favor of accused, and not against him. In this case it is said: "The general rule that declarations of deceased are admissible only when they relate to facts, and not to opinions, is subject to the exception that declarations of mere opinions of deceased, are admissible when favorable to the accused, and explained the conduct of the deceased." Thus we see that out court has followed the Handy case when it was based altogether on another rule of law. As proof of this assertion, we find that the supreme court of Kentucky in a later case than Handy v. Commonwealth, condemns the cases above cited, and shows wherein they are not analogous to the Handy case. See Collins v. Commonwealth, 12 Bush (Ky.) 271; in which the declaration was: "Michael Collins killed me and killed me for nothing." As to such a declaration the Kentucky supreme court says: "The statement that Collins killed the deceased for nothing," was but an expression of an opinion and was clearly inadmissible.

After careful examination of all the cases that even tend to hold that declarations of this character are admissible, it must appear that there is either a defective reason, or no reason at all, given for the decision. We call attention to two of these cases which attempt to give their reasons. In Sullivan v. State, 102 Ala. 142, it is put on the ground that the statement was of a collective fact. In Boyle v. State, 105 Ind. 469, the Indiana court says that: "He cut me without reason" is an inference of facts from observed facts, which of itself shows the error of the decision, as the statement of the court is a good definition of an opinion." There is a decisive test to which dying declarations must be subjected, and that is whatever may be stated by a witness under oath, is admissible in evidence as dying declarations made by him under the consciousness of approaching death: 10 Am. & Eng. Ency. of Law (2d ed.), 376, 377; Whitley v. State, 38 Ga. 50; State v. Footyou, 33 P. 537; Lipscomb v. State, 75 Miss. 559, 23 So. 210, 230. See also note of Worthington v. State, 56 L. R. A. 353; Sweet v. State, 107 Ga. 712, 33 S.E. 422, where the court says that a declaration of this character is one of opinion based on facts, or what he supposed were facts within his knowledge.

The dying declaration, admitted in evidence in this case, influenced the verdict to a great extent, as the other testimony for the state was in hopeless conflict with defendant's.

It is the duty of the district attorney to confine himself to the testimony in his argument to the jury, and we submit that the language used by the district attorney in his closing argument in this case, as shown by pages 173 to 175 of the transcript, should not have been permitted over defendant's objections, which were made at the proper time.

Anderson & Long, on the same side.

The state was permitted, over appellant's objection to introduce evidence, on the trial, as to the alleged dying declaration of the deceased to the effect that appellant shot him "without cause." While this ruling of the court below seems to be sustained by the case of Payne v. State, 61 Miss. 161, yet, in our view, the case cited should be overruled. "Without cause" means of course without legal cause. If the declarant did not have sufficient learning to know the law of self-defense, such a declaration would be entitled to no force whatever. To illustrate: It is the law that one is entitled to take the life of another, if necessary in order to prevent that other from committing a felony. How many laymen know this is the law? If, under such circumstances, a person were shot down, we venture the assertion that if he were asked by a by-stander, coming up after the shooting, why he was shot, he would say he was shot "without cause." Again, take a case where two persons have had an altercation, in which charges and counter-charges are made, by one against the other, of wrong doing, the matter winding up by one telling the other, "to prepare himself, and they would shoot it out the next time they met;" and afterwards, the one making the threat cools off and concludes he is in the wrong, and makes up his mind that the next time he meets his adversary, he will apologize to him and shake hands; and later they meet unexpectedly at a street corner, having seen in close proximity before they saw each other, and the party making the threat, with a view of carrying out his friendly purpose, makes a move to draw his right hand from his pocket, to shake hands and apologize, and the other not knowing his purpose, shoots him down. Clearly under the law, the party doing the shooting under these circumstances, is without guilt. What would the wounded man say in his dying moments, were he asked about the shooting? Our idea is he would say, what almost anyone would say under the same circumstances, that he was shot "without cause." Many other illustrations of the unsoundness of the principle announced in the Payne case, supra, might be made. We do not see how any court ever could have held that the language in question was a statement of fact.

We contend that Powers v. State, 74 Miss. 777, 2 So. 127; Kendrick v. State, 55 Miss. 436; Jones v. State, 30 So. 759; and Lipscomb v. State, 75 Miss. 559, 28 So. 210, 230, are not authorities against us. In the Powers case, the dying declaration was, "You have killed me without cause." The court held that it was properly admitted as a dying declaration, as well as a statement made to the accused and not denied by him. In the Kendrick case, the dying declaration was, "You have murdered me without cause or occasion, and it was damn cowardly of you," addressed by the wounded man to the defendant, to which the latter made no reply. The court held the declaration admissible in evidence, as a charge not denied by the defendant. In the Jones case, "it appeared that the deceased, while sitting in a room at night, with her back to the window, was shot by someone on the outside, and died shortly thereafter. She made the dying declaration, that she thought 'the accused shot her; that he told her he would, if he saw any man talking to her that night.'" The court held this statement inadmissible, as not a fact, but an opinion.

There is a full discussion of this question in the chapter on Dying Declarations, 10 Am. & Eng. Ency. of Law (2d ed.), beginning at page 360, an in Harper v....