Hurd v. State

• Decision Date: 15 December 1924
• Docket Number: 24147
• Citation: 137 Miss. 178,102 So. 293
• Court: Mississippi Supreme Court
• Parties: HURD v. STATE. [*]

102 So. 293

137 Miss. 178

HURD v. STATE. ^[*]

No. 24147

Supreme Court of Mississippi

December 15, 1924

(In Banc.)

1 HOMICIDE. Evidence of commission of felony by accused in prosecution for murder for killing officer attempting to arrest parties committing it, admissible.

In the trial of a person for murder for the killing of an officer attempting to arrest the parties who had committed a robbery evidence of the commission of such felony by the defendant and his companions is admissible, where it tends to show that the defendant was present at the time and place of the killing, and tends to establish the identity of the defendant as a participant in the killing; and it is also admissible as tending to show motive for resisting arrest, and that the defendant and his companions were confederated together for the felonious purpose of robbery and resistance to arrest and that in furtherance of this common design the officer was killed by one of the conspirators, in which case the killing of the deceased, by which-ever of them done, would be the act of each and all of them.

2 HOMICIDE. Evidence held to sustain conviction for murder of officer while attempting arrest of parties who had committed robbery; refusal of requested instruction that defendant could not be convicted of murder unless he fired fatal shot held not erroneous.

Evidence discussed, and held, that it was sufficient to warrant the jury in finding that the defendant was present at the time and place of the killing, and that he and his companions were confederated together for the purpose of robbery and resistance to arrest, and that in furtherance of this common design the deceased was killed by one of the conspirators, and under such evidence it was proper to refuse an instruction to the jury that it could not convict the defendant, unless the state had proven beyond all reasonable doubt that he fired the shot or shots that caused the death.

HON. W. H. POTTER, Judge.

APPEAL from circuit court of Hinds county, HON. W. H. POTTER, Judge.

Lester Hurd was convicted of murder, and he appeals. Affirmed.

Judgment affirmed.

J. H. Garth, Jr., for appellant.

First, the court erred in permitting the state to introduce evidence to show in detail that the crime of robbery had been committed near Vicksburg, and in Warren county several hours prior to the time Marshal Lancaster was killed. This evidence was prejudicial to the defendant, and had no connection or no bearing whatever upon the crime of murder of the Marshal Lancaster in Hinds county, and forty to sixty miles away from where Lancaster was killed, and for which this appellant was being tried. There was not and could not have been any connection of the crime of robbery and the crime of murder under this evidence and the circumstances in this case.

Second, the evidence clearly shows that this appellant was on the opposite side of the railroad track from where Lancaster, the deceased was, at the time of his death and several hundred feet away at the time he was killed, and that this appellant was not and could not have been even present at the time of his killing, as is shown by the testimony of the witness, Hamilton, who testified that after he heard the shots fired by Mr. Moore, that he and Lancaster were on the opposite side of the railroad track and train, and that he, Hamilton, undertook to climb up in the box car, and was shot while so doing, and that he then crawled under the train and after crawling under the train, and on the opposite side of the track from where Lancaster was, he heard quite a number of pistol shots, and that about this time Mr. Moore crossed the track and went to where the pistol shots appeared to have been fired, and he there found Mr. Lancaster, deceased, dead with his pistol near him, containing empty shells, or shells nearby Mr. Lancaster, that apparently came out of his pistol, and it cannot be said that it is shown beyond all reasonable doubt that this appellant fired the fatal shot or shots that caused the death of Mr. Lancaster, and the strongest circumstances or inference that could be drawn from this evidence in this case is that he was present at the time of the killing. It is not shown or intended that appellant aided or abetted in the commission of the crime, and of course, even if he was present he would have to do something to incite, encourage or assist the actual perpetrator in the commission of the crime, merely being present at the commission of a crime, even with the intention of assisting in the commission, if necessary, does not make one an aider or an abettor thereof, unless his intention to render such assistance be known to the perpetrator of the crime. Crawford v. State, 97 So. 534.

E. C. Sharp, Assistant Attorney-General, for the state.

Only three questions are presented for determination by this court as we understand it: First, should the court have permitted the state to introduce evidence of the robbery which occurred an hour or two prior to the killing and for which crime the officers were attempting to arrest appellant; second, whether or not the testimony is sufficient to establish the identity of defendant as a participant in the killing; and, third, were the instructions asked by appellant and refused by the court properly refused.

"Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish, first, motive; second, intent; third, the absence of mistake or accident; fourth, common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; fifth, the identity of the person charged with the commission of the crime on trial." Wharton's Criminal Evidence (9 Ed.), sec. 48. It is the contention of the state that it was competent to show the motive and the identity of the person charged with the murder. People v. Molineux, 168 N.Y. 264, 64 L. R. A. 193; People v. Rogers, 71 Cal. 565, 12 P. 679; O'Brien v. Commonwealth, 24 Ky. 2511, 74 S.W. 666; Whitney v. Commonwealth, 24 Ky. 2524, 74 S.W. 257; State v. Barrett, 40 Minn. 65, 41 N.W. 459.

Does the evidence in this case sufficiently identify the appellant as a participant in the murder of Lancaster? The jury answered this question in the affirmative. The second instruction for appellant which was refused is so clearly incorrect that we do not deem it necessary to discuss it at length. Dean v. State, 85 Miss. 40.

OPINION

COOK, J.

In the circuit court of the Second district of Hinds county the appellant, Lester Hurd, was convicted of murder, and sentenced to be hanged, and from this conviction and sentence he prosecuted this appeal.

To establish the guilt of the appellant the state first offered the testimony of two negroes, Roosevelt Richardson and Walter Johnson, who testified, in substance, that just before dark on the day of the killing they boarded an east-bound freight train of the Alabama & Vicksburg Railway Company just as it was leaving the Vicksburg yards; that shortly thereafter this appellant and two companions also boarded the train; that after the train had traveled several miles toward Jackson the appellant came over the train to the car on which the witnesses were riding and asked them for a match; that they had no matches, but, as one of them was smoking, he gave the appellant a light; that the appellant then returned to the place where his companions, were riding, and shortly thereafter the three together came onto the car on which these two witnesses were riding, and after some conversation suddenly covered them with pistols and proceeded to rob them securing from the person of Roosevelt Richardson the sum of nine dollars and thirteen cents and from Walter Johnson twenty dollars in money, a small pistol, and a jug of whiskey. They further testified as to the details of this robbery, and that each of their assailants was armed with a large pistol; that when they reached the suburbs of the town of Edwards their assailants forced them to leave the train, the train proceeding east toward Jackson; and that they immediately reported the robbery to...