Huggins v. State

• Decision Date: 06 January 1913
• Docket Number: 15,920
• Citation: 60 So. 209,103 Miss. 227
• Court: Mississippi Supreme Court
• Parties: TONY HUGGINS v. STATE

60 So. 209

103 Miss. 227

TONY HUGGINS v. STATE

No. 15,920

Supreme Court of Mississippi

January 6, 1913

APPEAL from the circuit court of Pike county, HON. D. M. MILLER Judge.

Tony Huggins was convicted of murder and appeals. The facts are fully stated in the opinion of the court.

Affirmed.

Frank C. Lee, and R. W. Cutrer, for appellant.

On cross-examination of the main prosecuting witness for the state, C. R. Gardner, the defendant, sought to show that Givens, the deceased, and defendant engaged in a difficulty on the morning of the homicide in which deceased was the aggressor, and that without any cause on defendant's part, Givens, the deceased, assaulted and struck the defendant and chased appellant with a scantling, one by three by four feet long, into appellant's own yard and that witness was with deceased when he ran appellant into his yard, and that witness and deceased, then and there, in the presence of defendant's wife, threatened the life of appellant, and that this was one and the same, a continuous difficulty in which deceased lost his life.

This testimony was certainly admissible and to have it excluded from the consideration of the jury, having shown an overt act on part of deceased, was such error as will cause the court to reverse this case. Brown v. State, 37 So. 957; Foster v. State, 12 So. 832; Nunnery v State, 87 Miss. 542. In the case of Brown v. State supra, it was held that "it was fatal error to refuse to allow the defendant to show, on cross-examination of state's witnesses the details of the previous difficulty. In the case of Foster v. State, supra, the learned judge says: "It (referring to admitting testimony of the previous difficulty) would have, in that case, shed light on the homicide. It would have illustrated the character of the deceased and the greater or less probability of his doing again, in pursuance of his declared purposes, what he would have been shown to have done on the previous occasion following up the threats that preceded that."

In the case of Hawthorne v. State, 61 Miss. 749, it was held to be fatal error for the trial judge to have excluded evidence of the previous difficulty and of threats of personal violence made against the defendant. In that case the threats were made some time prior to the killing and were communicated to defendant by a third party. In the opinion of the court, it was held that it was error for the trial judge to have excluded the testimony offered. Whether the facts were as testified by the witnesses for the state or as stated by those for the defendant was the question for decision by the jury and not by the court. It is only when the court can say that there is no overt act established and no evidence from which the jury might rightfully find existence of such acts that testimony should be excluded which is admittedly competent if the overt act is established. We submit that it was error for the court to exclude testimony of defendant relative to the previous difficulty. Johnson v. State, 54 Miss. 430; Holly v. State, 55 Miss. 424; Kendrick v. State, 55 Miss. 436; Spivy v. State, 58 Miss. 858; Guice v. State, 60 Miss. 704.

After the case had been closed the trial judge permitted the state to call C. R. Gardner and permitted him to give such evidence in rebuttal as was beneficial to the state only. The court not only permitted this witness to testify to matters it had just forbidden the defendant to go into and cross-examine any of the state's witnesses on, but permitted this witness to go all over the case and testify to new matters not brought out by the state in the presentation of its case and the court further went into and invaded the realm of defendant's rights by allowing this witness to give evidence impeaching the testimony offered by defendant on matters immaterial to the issue and not in rebuttal to any material facts offered by the defendant. This alone is reversible error and should reverse this case. Bell v. State, 38 So. 795; Chism v. State, 70 Miss. 742, 12 So. 852; Anderson v. State, 91 Miss. 407; 45 So. 359; Williams v. State, 73 Miss. 820; Cooper v. State, 94 Miss. 480.

Clem V. Ratcliff, for appellant.

We submit that the testimony offered by defendant on the question of previous, continuous difficulty was competent as shedding light on the tragedy and to show the jury who was the aggressor. See Brown v. State, 37 So. 957; Foster v. State, 70 Miss. 756. Certainly, as held in the last citation, if the state is permitted to show the previous difficulties, and to give their minute details, the prisoner should be allowed to give his version thereof. This testimony, if competent by the state at all, could not have been so by way of rebuttal. We cite: 69 Miss. 485; 70 Miss. 742; 73 Miss. 820; 33 So. 796 and 85 Miss. (Flowers case) 591 and 94 Miss. 480.

Our contention is, that the testimony should have been admitted for the defendant, and not having admitted it for the defendant, then it was error to admit it for the state after the defense had closed its case, and denied the defendant the right to give his version of the difficulty leading to the tragedy. We contend that it could not have been admitted to rebut, for there was nothing to rebut it, but if there was, it was immaterial matter as to the issue, and could not be contradicted. See Chism v. State, 70 M. 742; Bell v. State, 38 So. 795; Anderson v. State, 91 M. 407. We invite the attention of the court especially to the language of the court in the Chism case, supra, 70 M. 742; and Cooper case, 94 M. 480.

We insist on reversal of the case because of the error of the court in overruling the motion for a new trial for the reason that Juror Barnes could not read and write as required by the Constitution and the law. Mabry v. State, 71 Miss. 716.

George H. Ethridge, assistant attorney-general for appellee.

It is contended by the appellant that the court committed error in not permitting the defendant, on cross-examination of C. R. Gardner and others to show a previous difficulty between the parties. The brief undertakes to set out the testimony on this point, but omits wholly to state what the court says in its ruling on this point as shown in the state of facts at page 48 of the record, and I submit that the defense showed, or at least disclosed their purpose to show that the deceased committed an overt act, that evidence of previous difficulties would not be admissible. After the overt act was shown by the evidence for the defense, the whole matter was gone into by the defendant, and he had the right to recall under the rulings of the court, any witness for further cross-examination he desired, but he failed to do so, and cannot complain of the matter now. It is well settled in the decisions of this court that until an overt act is shown that previous difficulties and threats cannot be shown, as it would not throw any light whatever upon the transaction. See Guice v. State, 60 Miss. 724, and authorities cited in said opinion.

It is next contended that the trial court erred in permitting the state to recall C. R. Gardner and Jim Reidell in rebuttal, to testify as to the previous difficulties, and it is contended in that argument that the effect of this evidence would be to contradict the witness for the defense on immaterial matters. I submit that the defense having offered evidence of previous...