Jackson v. State

• Decision Date: 10 November 1930
• Docket Number: 28795
• Citation: 158 Miss. 524,130 So. 729
• Court: Mississippi Supreme Court
• Parties: JACKSON v. STATE

130 So. 729

158 Miss. 524

JACKSON v. STATE

No. 28795

Supreme Court of Mississippi

November 10, 1930

APPEAL from circuit court of Panola county, First district, HON GREEK L. RICE, Judge.

(In Banc.)

1 HOMICIDE.

Instruction confining jury to verdict of manslaughter for killing of wife held properly refused under evidence.

2 WITNESSES.

Child is qualified as witness if it has sufficient capacity to observe events and to recollect and communicate them.

3 WITNESSES.

Child, to qualify as witness, must have capacity to understand questions and frame intelligent answers, and must have consciousness of duty to speak truth.

4. WITNESSES.

Objection to competency of child as witness after cross-examination held too late.

5. CRIMINAL LAW.

In murder prosecution, district attorney's persistency in attempting to bring out evidence that child in mother's arms was powder burned by shots defendant fired did not require reversal, in view of defendant's own testimony.

HON. GREEK L. RICE, Judge.

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

Judgment affirmed.

Herbert M. Fant and James McClure, Jr., both of Sardis, for appellant.

The distinction between the crime of murder and that of manslaughter is the presence of malice in the former and its absence in the latter crime. The evidence as set out above shows conclusively that the appellant harbored no malice in his heart at the moment he fired the shots that killed his wife. This evidence further shows that the killing was done in an instant of time, on the spur of the moment, after appellant had been aroused to great feeling, so much so, as disclosed by the evidence that he had lost his sense of reason at the time he fired the fatal shots. There are no facts disclosed by the record to warrant the jury in finding that appellant acted from a deliberate design to effect the death of his wife.

Preston v. The State of Mississippi, 25 Miss. 387.

The trial court erred in permitting the testimony of Mack Henry Webb to go to the jury over the objection of the appellant.

The record shows that Mack Henry Webb was a seven year old negro boy, that he did not know the difference between telling a lie and swearing a lie, that he thought he would go to jail if he told a story in the court room.

Wm. A. Shipman, Assistant Attorney-General, for the state.

In McDaniel v. State, 8 S. &. M. 401, it is held that where on a trial for murder the fact of the killing is proved, and no accompanying circumstances, the law presumes the killing was done maliciously, and it will be murder; so if the attending circumstances appear, and no express malice be shown, yet if the act of killing were done with a deadly weapon, or under circumstances of barbarity and cruelty, the law presumes malice in the perpetrator; and if unopposed these presumptions may amount to full proof of the fact; that it is from these presumptions of law and the whole evidence in the case as well, as from the state's evidence as from the accused, that the jury must make up their verdict.

Lambeth v. State, 23 Miss. 352; Green v. State, 28 Miss. 698; Hawthorne v. State, 58 Miss. 784; Gee v. State, 80 Miss. 288; Mask v. State, 36 Miss. 77; Brown v. State, 98 Miss. 786, 54 So. 305; Riley v. State, 109 Miss. 286, 68 So. 250; Huddleston v. State, 134 Miss. 382, 98 So. 839; Staiger v. State, 110 Miss. 557, 70 So. 690; Johnson v. State, 140 Miss. 889, 105 So. 742.

In Peters v. State, 106 Miss. 333, 63 So. 666, this court held that a child six years of age is not merely by reason of the fact disqualified as a witness, and under section 1919 of the Code of 1906, religious belief, or want of it, constitutes no disqualification; that all that is required to qualify a child as a witness is that it should have sufficient capacity to observe events and to recollect and communicate them; that the question of the capacity of a witness to testify is primarily a question for the judge, and his decision will not be reversed on appeal, unless it is clearly erroneous.

Hays v. State, 126 So. 17.

OPINION

Smith, C. J.

The appellant was convicted of the murder of his wife, and was sentenced to be hanged.

The appellant testified in his own behalf, admitted the killing, and that it was without justification, but claimed that it was done in the heat of passion. The court below refused an instruction requested by the appellant eliminating murder from the consideration of the jury, and another requested by him directing the jury to find him guilty of manslaughter.

The testimony of the appellant himself discloses that the homicide occurred in the house in which he and his wife were living, together with two of the wife's children by a former marriage, one of whom was seven and the other about a year and a half old. The wife was cutting wood with an axe belonging to the appellant, and what then occurred can best be told in the appellant's own language:

"A. I told her not to cut my axe in any nails and she said it wasn't the first G d axe she had cut nails with. She went in the house and I stood in the door; and she said she was going to her sister's all night and going home the next day. I reached in my trunk and got my pistol.

"Q. She said she was going to her sister's that night and going home the next day. What effect did that have on you? Did it make you mad?"

After stating that he was angry and did not realize what he was doing, the appellant said that he shot his wife twice while she was "sitting in a chair." On this evidence, it is manifest that the court below did not commit error in refusing to confine the jury to a verdict of manslaughter.

The only eyewitness to the killing other than the appellant, was the decedent's seven year old son, who testified on behalf of the state. No objection to the competency of this witness was made until at the close of his cross-examination, which discloses the following questions and answers:

"Did you have any conversation with Mr. Thompson over there about what would happen to you if you told a lie here in court? Did he tell you where you would go? A. Yes, sir.

"Q. He told you would go to jail? A. Yes, sir.

"Q. And...