Hunter v. State

• Decision Date: 05 December 1938
• Docket Number: 33265
• Citation: 183 Miss. 779,184 So. 835
• Court: Mississippi Supreme Court
• Parties: HUNTER v. STATE

184 So. 835

183 Miss. 779

HUNTER v. STATE

No. 33265

Supreme Court of Mississippi

December 5, 1938

Division B

1 HOMICIDE.

In prosecution for murder allegedly committed while deceased was undertaking to prevent defendant's killing a third party defended on ground of self-defense against the third party evidence held to authorize conviction.

2. CRIMINAL LAW.

In murder prosecution, where defendant had testified that he was not the person who cut the deceased, county jailer's testimony that defendant asked him on the morning after the killing "how the boy was getting along that he cut last night" was admissible in rebuttal.

3. CRIMINAL LAW.

In murder prosecution, admission in rebuttal of county jailer's testimony that defendant had asked him on the morning after the killing "how the boy was getting along that he cut last night" was not reversible error, where defendant was not denied opportunity to offer further testimony in surrebuttal.

4 HOMICIDE.

In murder prosecution, that district attorney made motion in jury's presence for the court to repair to the scene of the killing for a view of the premises was not ground for reversal, since defendant could have requested that the jury be retired before objecting.

5. HOMICIDE.

In prosecution for murder allegedly committed while deceased was attempting to prevent defendant from killing a third party, exclusion of evidence that defendant was suffering from lung trouble and hence was not on an equal footing with third party in the fight without resorting to deadly weapon was not

6. HOMICIDE.

In murder prosecution, defended on ground of self-defense against a third party, evidence that some one shot at defendant after the fatal cutting and after defendant had left the scene of the cutting was immaterial.

7. HOMICIDE.

In prosecution for murder allegedly committed while deceased was trying to prevent defendant from killing a third party, exclusion of evidence concerning prior difficulty with the third party and others in which deceased was not involved was not error, where evidence authorized finding that defendant did not accidentally cut and kill deceased while acting in necessary self-defense.

HON. "W. J. PACK, Judge.

APPEAL from the circuit court of Jones county HON.W. J. PACK, Judge.

Charley Hunter was convicted of murder, and he appeals. Affirmed.

Affirmed.

Charles C. Evans and Paul G. Swartzfager, both of Laurel, for appellant.

The court erred in sustaining the State's objections to questions propounded by appellant 's attorneys to the state's witness Joe Potter.

It is our contention that the testimony sought by the questions and answers and the unanswered questions were a part of the res gestae and for that reason should have gone to the jury free from any objection on the part of the district attorney or from any adverse comment on the part of the court. The testimony here objected to is indeed a part of the res gestae. It clearly indicated the instigators of the difficulty which resulted in the death of Essie Lee Tanner, where it began, when it began, how it began, who the parties involved were, and who the aggressors were.

Mayes v. State, 64 Miss. 329, 1 So. 733; McCormick v. State, 132 So. 757; Carr v. State, 166 So. 363; Dixon v. State, 154 So. 290; Simon v. Dixie Greyhound Lines, Inc., 176 So. 160.

The evidence of the Shoemake witness offered substantiates the contention of appellant that he was ganged by not only the state witnesses Joe Potter, Sallie Watts, Emmet Shine, but by Frank Bell as well.

The testimony of the witness Shoemake is competent and should have gone to the jury as part of the res gestae.

Mayes v. State, 64 Miss. 329, 1 So. 733; McCormick v. State, 132 So. 757; Carr v. State, 166 So. 363; Dixon v. State, 154 So. 290; Simon v. Dixie Greyhound Lines, Inc., 176 So. 160.

In the presence of the jury the district attorney asked the court for permission to take the jury to the place and the scene of the killing for the purpose of viewing and inspecting the place and surroundings. To which motion comment was made by the court, and objections of appellant sustained.

It is true that the trial judge overruled the district attorney's motion for a view and inspection of the place where Tanner was killed but the damage had been done. Appellant 's right to a free and impartial trial by unbiased and unprejudiced jurors had been violated.

Armstrong v. State, 174 So. 892; National Box Co. v. Bradley, 154 So. 724; A. & P. Tea Co. v. Davis, 171 So. 55.

The court should have excluded from the jury the testimony of Jeff Hilbun, the county jailer.

This testimony was given by the state in rebuttal, for the purpose as stated by the district attorney impeaching the testimony of the appellant. It was not only given by the state for the purpose of impeachment, but for the purpose of a confession of the crime charged against the appellant as well. This testimony was highly prejudicial to appellant and should have been excluded from the jury for at least three reasons: 1. If competent and admissible it should have. been given in chief instead of in rebuttal; 2. If given for the purpose of impeachment no predicate was laid; 3. If given as a confession, and we are of the opinion this is the primary motive that prompted the district attorney in offering it, it should have been excluded for reason that no showing was made by the state to prove that it was freely and voluntarily made.

Church v. State, 176 So. 162; Harrison v. State, 168 Miss. 699, 152 So. 494; Bonelli v. Brown, 70 Miss. 142, 11 So. 791; Roney v. State, 167 Miss. 827, 150 So. 774; Hathorn v. State, 102 So. 771; Brettinum v. State, 167 So. 619; Simon v. State, 37 Miss. 288; Ellis v. State, 65 Miss. 44, 3 So. 188; Brown v. State, 167 So. 82; Fletcher v. State, 131 So. 251.

Appellant's motion for a directed verdict upon the charge of murder should have been sustained for the reason that the indictment charges the appellant with the willful, unlawful, felonious, and of his malice aforethought killing of Essie Lee Tanner, a human being, etc. None of the elements necessary to constitute murder were shown by the testimony of the state.

Appellant, under all of the facts in the case if he did kill Essie Lee Tanner, was certainly justifiable and excusable under paragraph (b) of Section 989, of the Code of 1930. It might be contended that appellant cannot claim justification and excuse under this section of the code for the reason that he was using a dangerous weapon. In the case of Hill v. State, 97 Miss. 304, 49 So. 146, this court held: "Defendant held justified in using a deadly weapon to protect himself. Where deceased was a much larger and stronger man, and defendant was liable to receive great bodily injury at his hands, although deceased was unarmed."

Hill v. State, 97 Miss. 304, 49 So. 145; Waldrup v. State, 98 Miss. 567, 54 So. 66.

The facts which were not permitted to go to the jury clearly show that appellant was a sick man and in a critical condition at the time of the killing and at the time of the trial. The facts of the record show that Joe Potter, with whom appellant was fighting at the time of the killing was a strong, able bodied man, and in addition thereto according to appellant's testimony, which was corroborated by others, the said Joe Potter was armed with a dangerous weapon, to-wit, a knife, and appellant had a right to apprehend great harm and eminent danger to himself at the hands of the said Joe Potter.

If it should be said this was not a case for a directed verdict, yet it is our contention under all the facts and inferences to be drawn therefrom, and the circumstances surrounding this entire unfortunate affair, that the verdict of the jury is contrary to the weight of the testimony and for this reason should be reversed and judgment entered here for appellant.

Heflin v. State, 178 So. 594.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

It is only when previous events which lead up to a difficulty are necessary to be shown to properly and correctly understand the main transaction itself, that such anterior events become a part of the res gestae and are admissible in evidence as such.

Carr v. State, 175 Miss. 102, 166 So. 363; Carter v. State, 167 Miss. 331, 145 So. 739; McCoy v. State, 91 Miss. 257, 44 So. 814; Rich v. State, 124 Miss. 272, 86 So. 77.

In the presence of the jury the district attorney moved the court to repair to the scene of the killing and there view the premises. The court overruled the motion and thereupon appellant moved for a mistrial. This latter motion was overruled. We submit that there was no error of which appellant can complain with respect to the actions of the court on these two motions.

Armstrong v. State, 174 So. 892.

In rebuttal the state introduced Jeff Hilbun, Jones county jailer, who testified over defendant's objection, that on the morning after the stabbing and while appellant was in jail, the appellant asked him "How the boy was getting along that he cut last night." The court's overruling of the objection to this testimony is assigned as error for the reasons that: first, it was not proper rebuttal; second, that no predicate was laid for the impeachment of the defendant; and third, that it was in the nature of a confession and was not qualified as required by law before being given to the jury.

This testimony does not constitute a confession. In his testimony the defendant denied that he had stabbed Tanner and it is always permissible to show that a witness has made statements out of court inconsistent with and contradictory to his testimony in court.

As to it being improper rebuttal, we submit that there is nothing of which appellant could complain in any event.

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