Huggins v. State

• Decision Date: 16 January 1928
• Docket Number: 26789
• Court: Mississippi Supreme Court
• Parties: HUGGINS v. STATE. [*]

115 So. 213

149 Miss. 280

HUGGINS v. STATE. ^[*]

No. 26789

Supreme Court of Mississippi

January 16, 1928

APPEAL from circuit court of Lauderdale county. HON. J. D. FATHEREE Judge.

(In Banc.)

1. HOMICIDE. To convict defendant of murder as coconspirator of one killing to escape after robbery, it was necessary that conspiracy to commit robbery include agreement to kill if necessary.

To convict defendant of murder as coconspirator of one killing deceased to escape after robbery of deceased's store, it was necessary that joint enterprise and conspiracy should cover not only design or purpose to commit robbery or larceny, but should extend to and include common purpose and agreement to resist arrest with great violence or kill deceased or other person who interfered with or attempted to apprehend them.

2. HOMICIDE. Whether defendant was guilty of murder as coconspirator of one killing to escape after robbery held for jury.

Whether defendant and one killing deceased to escape after robbery conspired to commit larceny in deceased's store and agreed between themselves to resist arrest with great violence, or to kill deceased or any one who might interfere with or attempt to apprehend them, so that defendant would be guilty of murder as co-conspirator, held for jury.

3 HOMICIDE. Evidence of accused's attempted escape from jail held admissible in murder prosecution.

In prosecution for murder, permitting jailer to testify that while accused was confined in county jail awaiting trial he attempted to escape from jail held not error, since it is always permissible to show flight or attempted flight on part of defendant as circumstance tending to show guilt.

4 HOMICIDE. Instructions in effect that, if defendant and W agreed to rob store and kill if necessary, and W. killed deceased in carrying out agreement, defendant was guilty of murder held correct.

In murder prosecution, instructions in effect that, if defendant and W. agreed to rob store of deceased and to kill him if he interfered with them in robbing store or in escaping after robbery, and that in carrying out such agreement W. killed deceased in order to escape, defendant was guilty of murder held correct.

HON. J. D. FATHEREE, Judge.

Eugene Huggins was convicted of murder, and he appeals. Affirmed.

See, also, 113 So. 352.

Judgment affirmed.

D. B. Holmes, Jr., and Victor W. Gilbert, for appellant.

After a robbery is over and one of the parties kills in making an escape, a confederate cannot be held for murder unless there was premeditation on his part. A case very similar on its facts to the case at bar was decided by the New York Court of Appeals in People v. Marwig, 125 N.E. 535. Under the facts of the case the appellant should not have been convicted for murder and he should have had a peremptory instruction.

J. A. Lauderdale, Assistant Attorney-General, for the State.

Counsel for appellant cite the case of People v. Marwig, 125 N.E. 535, which certainly sustains the contention made by the state in the case at bar. In Osborn v. State, 99 Miss. 410, the court holds that a conspiracy can be proven like any other controverted facts by the acts of the parties, or by circumstances as well as their agreement. See, also, Street v. State, 42 Miss. 2; 5 R. C. L., p. 1088, par. 37.

OPINION

COOK, J.

At the August, 1927, term of the circuit court of Lauderdale county, the appellant, Eugene Huggins, and one Marion Walton were jointly indicted for the murder of J. J. McCarty. There was a severance and a separate trial of the two defendants, and the appellant was convicted and sentenced to be hanged, and from this conviction and sentence he prosecutes this appeal.

The deceased was shot and killed by Marion Walton; and the appellant was convicted for the murder as a co-conspirator, the theory of the state being that these two defendants went to the store of the deceased, McCarty, for the purpose of robbery or theft; that in furtherance of this design the deceased was shot and killed by Walton; and that, consequently, the appellant was also guilty of murder.

The proof offered by the state shows, in substance, that the deceased operated a suburban store and gasoline filling station, in the city of Meridian, and lived with his wife and children in rooms at the rear of the store. Shortly after dark on the day of the homicide, Mrs. McCarty went to their living room; just a short time afterwards her husband came into the room and secured his pistol, as he frequently did at night. A little while afterwards, Mrs. McCarty heard someone call her husband out of the store to the filling station, and overheard a conversation between him and some party, who stated that he desired to purchase gasoline to carry to a car nearby. McCarty asked the would-be purchaser to leave a deposit with him to guarantee the return of the can in which the gasoline was to be carried away. While this transaction was going on, Mrs. McCarty heard some one in the store, and upon going to the door between her room and the store she saw the appellant at the cash drawer, from which she afterwards discovered between twenty-five and thirty dollars had been extracted. She called to her husband, and thereupon the appellant fled through the front door of the store by the gasoline tank where McCarty and Walton were standing, and McCarty drew his pistol and fired two shots at the appellant as he fled down the street. McCarty then charged Walton with being implicated in the theft, and, with the gun still in his hand, directed Walton to go into the store and be seated until the arrival of the police. He then directed his wife to telephone for the police.

At the time McCarty shot at the fleeing appellant, John Burns, a witness for the state, was nearby, and he walked up into the front door of the store. Walton, who was then seated about the middle of the store, first told Burns to get out of the door, but when he did not do so, Walton then said, "Look, some one is moving my car." Burns turned to look, and Walton immediately drew his pistol and shot twice at McCarty, one bullet hitting his arm, and the other entering the side of his head, killing him instantly. Walton then threw his gun on Burns, who dodged behind the door facing, and then fled. He was arrested some time during the next day. McCarty, at the time he was shot, was standing by and leaning on a barrel, with his gun in his hand pointing downward.

On Monday, prior to the killing on Saturday, the appellant sold a pistol to one Mike Thomas for six dollars, and there is testimony to the effect that this pistol belonged to Walton. A few hours prior to the killing, the appellant and Walton went to Thomas' store and repurchased this pistol for six dollars and fifty cents. At the time they purchased the pistol, they had no car, and were walking. Later they were seen on a bridge not far from McCarty's store, and they then had no car. Just prior to the killing, Walton was attempting to buy gasoline for a car, which he represented, was nearby, while the appellant was in the store at the cash drawer. The appellant was detected, and fled. A few moments later Walton shot and killed McCarty; and a few hours later, he and the appellant were again together at the home of a negro woman in Meridian.

The appellant and Walton were both arrested, on the following day, and afterwards the appellant made a confession to certain officers, which confession was shown to have been freely and voluntarily made, and the admissibility thereof is not challenged. In this confession, he stated that he and Walton purchased from Mike Thomas the pistol which he had previously sold to Thomas; that shortly after purchasing this pistol, they decided to rob some one; that they later went to McCarty's store and bought some lunch, their purpose in doing so being to view the situation in the store; that they came out of the store and sat on a railroad track nearby to eat this lunch; and that while they were eating, they made their plans to rob the store. The plan which they agreed upon, as detailed by the appellant, was that, for the pretended purpose of purchasing gasoline. Walton was to call McCarty out to the gas pump in front of the store, while he, the appellant, was to go in the store and rifle the cash drawer and steal whatever else he could. He further stated that they carried this plan out; and...