Huddleston v. State

• Decision Date: 11 February 1924
• Docket Number: 23564
• Citation: 98 So. 839,134 Miss. 382
• Court: Mississippi Supreme Court
• Parties: HUDDLESTON v. STATE

98 So. 839

134 Miss. 382

HUDDLESTON v. STATE

No. 23564

Supreme Court of Mississippi

February 11, 1924

Division B

APPEAL from circuit court of Newton county, HON. G. E. WILSON Judge.

Victor Huddleston was convicted of murder, and he appeals. Affirmed.

Judgment affirmed.

Byrd &amp Byrd, for appellant.

The objection to the testimony in regard to whether defendant was drinking or not was well taken. From the testimony of the witness as adduced by the state it would seem that the crime for which defendant was being tried was a violation of the liquor law. There is not a line of testimony in the record even remotely suggesting that liquor had anything to do with the killing. This testimony was highly prejudicial.

The alleged threat, in these words: "He was around there drunk, and I went to him and told him he ought not to go on that way, and what was the matter with him? And he said he was going to kill him a man--he was going to kill him a man to be called bad"--was not made against the deceased, and the deceased was not present, and if the defendant really made the statement it could apply with equal force to every man in existence. Henson v. State, 6 So. 463. There is an utter lack of identification of either the shell or the gun.

As to the actual killing, and the facts immediately connected therewith, there were but two witnesses, the state's witness, Glover Brown, and the defendant himself. The instruction given is upon the weight of the evidence and is violative of section 1578, Hemingway's Code, which provides that the defendant is a competent witness in his own behalf. Buckley v. State, 62 Miss. 705.

The peremptory instruction for the defendant should have been given because the testimony for the state was completely controverted, impeached and contradicted. By an overwhelming weight of the evidence the state's only witness to the homicide was shown to be a consummate liar and his testimony was impeached so completely that the necessity for a jury's verdict vanished.

J. H. Sumrall, Assistant Attorney-General, for the state.

The admission of the testimony as to the drunkenness or sobriety of appellant on the night of the homicide was entirely proper as a circumstance to prove a motive for the overt act which had already been testified to by state witnesses, when the testimony in question was introduced, and as a connecting fact between a former hostile statement made about deceased by appellant, and the actual homicide. Again, this testimony became important as touching the credibility of the appellant himself as a witness in his own behalf. 28 R. C. L., page 620, sec. 209; Payton v. State, 60 Texas, 475, 132 S.W. 127.

Counsel for appellant criticises the third instruction given for the state, which is a correct and fair announcement of the law as to the province of the jury in determining the credibility of witnesses. Buckley v. State, 62 Miss. 705, cited by counsel, has no application to the instruction complained of since the Buckley case only condemns calling the jury's attention to the interest of the witness as influencing his testimony, while the instruction complained of is free from any such objection. As authority for the giving of this instruction, and in support of the rule announced see Thomas v. State, 61 Miss. 60; Owen v. State, 63 Miss. 450; Miller v. State, 35 So. 690; Waldrop v. State, 54 So. 66; Peddre v. State, 54 So. 721; Vails v. State, 94 Miss. 365.

Appellant lays great stress on what he chooses to term the "lying testimony" of state witness Brown. It rather appears that Brown's idea about the matter was that he should not discuss this matter indiscriminately with people generally, he having the idea, as stated by him on the stand, that it would be unlawful for him to do so; and this idea was no doubt strengthened by the apparent interest of such a large number of people, who for some reason desired to have him discuss his knowledge of the actual shooting. But even though we adopt every contention of counsel with reference to all the state's witnesses, certain undisputed facts and circumstances remain which, properly considered, lead to no other conclusion than the one of guilt.

Argued orally by J. R. Byrd, for appellant, and J. H. Sumrall, Assistant Attorney-General, for the state.

OPINION

ETHRIDGE, J.

The appellant was indicted, tried, and convicted of murder and sentenced to imprisonment for life. The killing occurred very late at night following a fish fry or party at which the deceased and the defendant were on said night. There were two eyewitnesses to the killing--Glover Brown, a state witness, and the defendant. The killing as detailed by the state witness was the culmination of a dispute or argument between the deceased and the appellant, in which dispute the deceased called the defendant a "damn liar," and according to the state's witness the defendant stated, "If you call me that again, I will shoot your head off." Whereupon the deceased repeated the statement, and the defendant stepped in front of him, threw up the gun, and fired; the shot taking effect in the left eye, tearing away the eye, the left cheek bone, and the lower part of the skull. After the shooting the defendant turned and ran back southwardly in the direction from which they came, and disappeared from the community, and was later arrested in the Delta and returned for trial.

The state's witness states that when the defendant ran past him that he then ran in the opposite direction and caught up with some other parties, who were also returning from the dance, and told them about the matter; that they went on to a white man's house and told them about it, and the state's witness and two or three others returned to the place where the deceased was lying; that the gun was lying near the deceased and was a single-barrel shotgun, which the deceased and some others, including the brother of the defendant, had carried to the fish fry or party. The defendant was not with them until after they reached the party, but when they started to leave the party he and the deceased and a number of others left together; the deceased then having the gun. The party separated at a certain point in the road; the deceased, the defendant, and the state witness Brown going one way, and the others taking another road. The defendant at some point on the journey took the gun before any dispute arose. It seems from the state's witness' testimony that the dispute was about a girl.

The state introduced evidence of a previous threat against the deceased made some three days before the shooting, growing out of some contest or rivalry between the defendant and the deceased in their work, which was swamping for a lumber concern. It seems from the evidence that the deceased could do more rapid work and won in these contests, and that this irritated the defendant.

It was also proved by the state that during the party the defendant was intoxicated, and that he threatened to kill him a man and buy a black box. The testimony concerning this evidence as to the drunkenness and these threats was objected to, the objection overruled, and exception taken.

The defendant's version of this affair was that he and the deceased were good friends, and that the deceased was going home with him to spend the night; that the deceased had the gun and gave it to him requesting him to carry it awhile, and that he was carrying the gun unbreeched on his arm, and that he did not know it was loaded; that he and the deceased were walking along talking, and the state's witness Brown was behind them some steps, and not knowing the gun was loaded he decided to breech the gun, and in breeching it the gun discharged, killing the deceased, his friend; and that he was excited and ran back to a relative and told them about it and was advised to leave, which he did because so advised by relatives. He denied the threats, denied being intoxicated, and proved by others that the gun was a tricky gun and would sometimes fire on being breached, but that he did not know that, and that he did not own the gun; it being owned by his brother, who...