Jackson v. State

• Decision Date: 10 December 1888
• Citation: 66 Miss. 89,5 So. 690
• Court: Mississippi Supreme Court
• Parties: ANDREW JACKSON v. THE STATE

5 So. 690

66 Miss. 89

ANDREW JACKSON v. THE STATE

Supreme Court of Mississippi

December 10, 1888

APPEAL from the circuit court of Warren county, HON. RALPH NORTH Judge.

Appellant was indicted, jointly with another, for the murder of one Logan Tingstrom. A severance was had and he was tried separately. The proof developed that, at the time of the killing, a charge of grand larceny was pending against Tingstrom, and that Jackson had been specially deputized by the justice of the peace to make the arrest. The evidence for the state showed that Tingstrom and his wife lived on a flat-boat in the river, that late in the evening of the day he was killed, deceased left the boat to go on an errand to a neighboring house, and his wife and her brother waited on the boat for him to return. Shortly after dark he was returning and when in about fourteen steps of them the defendant stepped out from behind the bushes and shot him in the back that nothing was said at the time and no request to stop or hold up was made of deceased.

The accused testified that after being deputized to arrest Tingstrom, he kept the warrant several days, but did not see him. On the evening of the killing he saw deceased at his boat on the river, making preparations to leave, and went down to arrest him. Seeing him leave the boat for a neighboring house, and knowing he must return a certain way accused waited for him to return. Tingstrom returned after dark, alone, and carrying upon his back a sack and having a gun in his hand. When near him accused ordered him to "stop, hold up," but he kept on. Accused then told him, "Hold up, I have a warrant for you," but Tingstrom kept on in a "kind of run." Accused followed him twenty or twenty-five steps, and when he got in about fourteen steps of the flat-boat said "Stop, or I will shoot you." Tingstrom took his gun in both hands and looked back and started to turn as if to shoot accused and the latter thereupon shot him. There was no ill-feeling between them.

On the trial one H. H. McCaleb was introduced for the state. He testified that he was a reporter for the Vicksburg Herald. That after the killing he had an interview with the defendant, who stated to him voluntarily the circumstances of the homicide. The interview was written out and read to defendant, who said it was correct. The statement was then published in the Herald. The witness said he had no recollection of what was said in the interview, independently of the article, but did know that he took it down at the time it was said and it was substantially correct. Thereupon the witness, over the objection of defendant, was permitted to read, as his testimony to the jury, the statement of the interview copied from the files of the Herald.

The defendant offered to prove, by one Matt Clay, Jr., who was present when the warrant for the arrest of the deceased was given to Jackson, the defendant, that it was read and explained to him, and he was told what to do under it in reference to the arrest. The objection of the district attorney to this testimony was sustained, and the defendant excepted. There was much other testimony, but the foregoing is all that is necessary to an understanding of the opinion of the court.

The court gave the following among other instructions for the state:

1. The court instructs the jury that, if they are satisfied from the evidence in the cause, the defendant, although having a warrant for the arrest of the deceased, that he went upon the bank of the river, having reason to expect the deceased would come by said place, and there the defendant laid in wait for the deceased, and if they are further satisfied from the evidence in the cause that the deceased came along said place where the defendant was in wait, as aforesaid, and that the defendant then and there shot and killed the defendant merely because the deceased did not stop when the defendant told him to halt, he had a warrant for his arrest, then such killing was unnecessary and wanton, and would be murder in the meaning of the law, and the jury should so find.

2. The court instructs the jury, that if they are satisfied from the evidence that Logan Tingstrom, the deceased, made no actual resistance to his arrest, but merely declined to stop when hailed by the defendant, who called him, and told him he had a warrant for his arrest, and the defendant then and there shot and killed him, merely because he did not stop, as aforesaid, then such killing was wanton and murder, and the jury should so find.

3. The court instructs the jury, that if they are satisfied from the evidence that the defendant laid in wait for the deceased, and shot and killed him when the deceased's back was to him, and he was in no personal danger to his life or limb, either real or apparent, then they will find him guilty as charged.

4. The court instructs the jury, that no killing of a human being is excusable or justifiable by an officer, or other person having a warrant for the apprehension of a party charged with felony, merely because the party killed is fleeing from arrest.

5. The court instructs the jury that no killing of a human being by a party having a warrant for the arrest of the person killed, would be excusable or justifiable, even if the party who is killed is resisting arrest, if the party killed could be apparently arrested by less violent means.

The court refused the following instructions asked for by the defendant.

15. Should the jury believe from the evidence that the killing, at the time it was done, was probably necessary in order to prevent the escape of the deceased, then they should acquit the defendant.

16. Should the jury from the evidence believe that the deceased had been guilty of grand larceny, as defined in these instructions, and that a warrant had been issued for his arrest, and placed in the hands of defendant for execution, that he started out in good faith to execute it, and that he tried to execute it without taking deceased's life; that deceased was trying to escape, and that probably he would have escaped, had he not been slain, then the jury should find the defendant not guilty.

The defendant was convicted and sentenced to be hanged.

Reversed and remanded.

McCabe & Anderson, for appellant.

The reported interview between defendant and witness, McCaleb, copied from the files of the Herald, should not have been allowed to have been read to the jury by the witness.

First, because not competent in any event.

Second, because it was not shown to be all that was said.

Third, it was not shown that it stated correctly what was said. See 45 Miss. 330; Greenleaf Ev. 1, § 200.

The court erred in refusing to admit the evidence of Matt Clay, Jr., to show what instructions were given defendant when the writ was placed in his hands. It was admissible as part of the history of the case and for special reasons in this case. It would have tended to rebut the idea that as the defendant was an ignorant, unlettered negro, he probably concluded he had the right to kill the deceased. It would show that he was, on the other hand, properly informed. In a case of conflict of testimony, we are entitled to the benefit of the probability that defendant acted as instructed.

The first instruction for the state was erroneous. It was not applicable to the facts. No one had testified that deceased was killed merely because he would not stop when...