Jackison v. State

• Decision Date: 04 April 1932
• Docket Number: 29850
• Citation: 140 So. 683,163 Miss. 235
• Court: Mississippi Supreme Court
• Parties: JACKISON v. STATE

140 So. 683

163 Miss. 235

JACKISON v. STATE

No. 29850

Supreme Court of Mississippi

April 4, 1932

Suggestion Of Error Overruled May 9, 1932.

(In Banc.)

1 HOMICIDE.

In prosecution for murder based on shooting of deceased with pistol, evidence held sufficient to support conviction.

2. CRIMINAL LAW. Alleged error 'based on admission of confession without showing confession was freely and voluntarily made held unavailable on appeal from conviction where defendant merely interposed general objection.

Alleged error was unavailable on appeal from conviction because error in the admissibility of evidence can be predicated only on objection thereto, specifically pointing out the infirmity therein.

3. CRIMINAL LAW.

General objection to evidence, though overruled, will be deemed sufficient as basis for alleged error, where evidence on its face appears inadmissible for any purpose.

4. CRIMINAL LAW.

Pact that confession was made to officer having accused in custody

would not render confession inadmissible.

GRIFFITH and ANDERSON, JJ., dissenting.

HON. R L. CORBAN, Judge.

APPEAL from circuit court of Amite county, HON. R. L. CORBAN, Judge.

Emanuel Jackson was convicted of murder, and he appeals. Affirmed.

Affirmed.

L. H. McGehee, of McClomb, for appellant.

Before admitting a confession in evidence the trial court should apart from the jury, examine into the matter, and find that such confession was freely and voluntarily made, but in view of this fundamental principle no question was asked and no effort made to ascertain why and under what circumstances this confession was made wherein appellant admitted that he killed the deceased. The record does show that the trial was in progress and that he was being carried to the courthouse for trial. Without this confession nobody would have ever known who killed the deceased and a court would never have let it gone to a jury.

Draughn v. State, 76 Miss. 574.

There is no evidence in this record to show that appellant ever said a cross word or ever had any sort of difficulty with the deceased.

The confession admitted in evidence in this case was fatal error as shown by the very authorities cited by the attorney-general. I think the one case cited of Draughn v. State, 76 Miss. 574, lays down the principle clearly. I admit that this matter was not gone into in the absence of the jury, and the record does not show that a request was made for the jury to retire but that doesn't relieve the situation for the objection was made, and timely made, and the court permitted it to go to the jury without any sort of qualification or investigation as to its legality.

I think that objection made is tantamount to a request for the retiring of the jury for this was a case where a man's neck was at stake, where feeling ran high, and without provocation.

Where evidence raises only issue of self-defense or manslaughter, murder conviction will be reversed.

Jones v. State, 98 Miss. 899.

Deliberation is a necessary element of murder. One may form a felonious desire to kill, and kill in the heat of passion and it is manslaughter.

Dye v. State, 127 Miss. 492.

Where one is accused of murder the law presumes him to be innocent until the contrary is made to appear, but if it be shown that he killed the deceased with a deadly weapon the general presumption of innocence yields to the specific proof, and the law infers that the killing, if unexplained, was malicious, therefore murder; but if the attending circumstances be shown in evidence by the state or the accused the character of the killing is to be determined by considering the whole case.

Hawthown v. State, 58 Miss. 778; Bishop v. State, 52 Miss. 289; McDaniel v. State, 8 S. & M. 401, 47 Am. Dec. 93; Green v. State, 28 Miss. 587; Cotton v. State, 31 Miss. 504; Mask v. State, 36 Miss. 77; Evans v. State, 44 Miss. 762.

The court can't say that malice can be inferred from the use of a deadly weapon, in this case, and under the particular circumstances of this case for the reason, that in the case at bar it was tantamount to the protection of one's own home, in the darkness of the night, for he was where he had a right to be.

This court is in error in affirming this case, unless it specifically overrules the Hathorn case and Draughn case, in reference to the admission of confessions.

Draughn v. State, 76 Miss. 574; Hathorn v. State, 138 Miss. 11.

When a confession by the accused is offered in evidence against him, the burden is on the prosecution to show that it was voluntary, before it can be received, if objection be made.

Coffee v. State, 25 Fla. 501, 6 So. 493; Clayton v. State, 31 Tex. Crim. Rep. 489, 21 S.W. 255; Hite v. Com., 96 Va. 489, 31 S.E. 895; State v. Aguste, 50 La. Ann. 488, 23 So. 612; State v. Gravey, 28 La. Ann. 925, 26 Am. Rep. 123; Amos v. State, 83 Ala. 1, 3 So. 749; Nicholson v. State, 38 Md. 140.

W. D. Conn, Jr., Assistant Attorney-General, and D. C. Bramlett, of Woodville, for the state.

The holding of the court in the Draughn case, 76 Miss. 574, was to the effect that if it was so requested, the trial court should go into the admissibiliy of the alleged confession in the absence of the jury and that if, after such request the trial court should refuse so to do, then such action would constitute reversible error. It will be noted in the case at bar that there was no request on the part of appellant's counsel that the admissibility of this alleged confession be inquired into, before presentation to the jury. In the absence of such request it was proper for this to be gone into, as the record shows that it was.

Randolph v. State (Miss.), 118 So. 354; Ellis v. State, 65 Miss. 44, 3 So. 188, 7 Am. St. Rep. 634; Lee v. State, 137 Miss. 329, 102 So. 296; Simmons v. State, 61 Miss. 243; Perkins v. State, 135 So. 357.

But there is some question perhaps as to whether or not this is a confession or an admission of fact from which guilt may be inferred when considered with all of the other circumstances and conditions surrounding this case.

Pringle v. State, 108 Miss. 807.

A confession is a voluntary statement of the deceased's acknowledgment that he is guilty of the crime charged It is the voluntary declaration of his agency, or participation in the crime. When a person charged with crime only admits certain facts upon which his guilt may be inferred, this will not amount to a confession. This distinction between confessions and admission on facts is recognized by this court in Richburger v. State, 90 Miss. 840, 44 So. 772; Pringle v. State, 108 Miss. 807.

It is not indispensable that motive be shown in order to sustain a conviction of murder. Sometimes the motive may die with the dead man, or be locked up in the breast of the slayer.

House v. State, 94 Miss. 107, 48 So. 3.

Under the facts in this case the jury were warranted in inferring the presence of malice from the use of the deadly weapon, the knife with which the mortal wound was inflicted.

Riley v. State, 109 Miss. 286, 68 So. 250; Johnson v. State, 140 Miss. 895.

Argued orally by L. H. McGehee, for appellant, and by D. C. Bramlette, for the state.

Smith, C. J., Griffith, J., Anderson J., dissenting.

OPINION

Smith, C. J.

This is an appeal from a judgment sentencing the appellant to be hanged for murder.

The appellant's contentions are that the evidence is insufficient to support the verdict, and the court below erred in admitting his confession in evidence.

Alice Jackson testified for the state that on the night of August 25th the appellant came to her house to see another woman by the name of Luella, who was his mistress. Luella was not there, but the appellant spent the night at the house. The next morning, about daylight, the deceased came to the house and called for Luella, his purpose being to have her pick cotton for him. He did not enter the house, but called to the parties therein from the outside. The appellant arose from the bed in which he was sleeping, dressed, and took from under his pillow a pistol he had put there the night before. When the witness told the deceased that Luella was not there, the appellant told her to ask him if he had any cotton to pick, and, on the deceased's asking who it was that spoke, she told him it was the appellant. The deceased then asked the appellant "Did he have anything to do?" to which the appellant replied that he had a crop; whereupon the deceased said, "Don't you think it time to go to work?" And the appellant replied, "Yes, he was going." It was then that the appellant got up, put on his clothes, and took the pistol from under the pillow. The witness then left the house, and saw the deceased walking away from it toward his automobile, which was parked a short distance away. A short time thereafter, the witness, who then had arrived at a neighbor's, heard a pistol shot, went back to her house, and found the deceased lying on the ground near his automobile dead, with an open knife in one hand, and a short stick grasped by the middle in the other. He was killed by a pistol bullet fired close enough to powder-burn his clothing; he had also a bruise under one of his eyes. The appellant was not at the house when the witness returned thereto, but was afterwards arrested, though there is no evidence of an attempted flight by him.

A deputy sheriff by the name of Harvey testified that he brought the appellant to the courtroom, and, while on the way there, had a "casual conversation" with him, in which he told the witness about the difficulty. He was then asked, "What did he say about it?" to which he answered, "He said he shot Mr. Bates" (the deceased). Counsel for the appellant then interposed as follows: "Defense objects to any confession made to Mr Harvey...