Jones v. State, 23122

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: COOK, J.
• Citation: 130 Miss. 703,94 So. 851
• Parties: JONES v. STATE
• Decision Date: 22 January 1923
• Docket Number: 23122

94 So. 851

130 Miss. 703

JONES
v.
STATE

No. 23122

Supreme Court of Mississippi

January 22, 1923

1. HOMICIDE. Dying declaration held material.

Where there was a controversy as to whether deceased was shot in the back or was facing defendant and advancing upon him with a dangerous weapon, his dying declaration that he did not know who shot him, and that all he could remember was hearing the report and then falling, was material.

2. HOMICIDE. Preliminary evidence held to render dying declaration competent.

Evidence that immediately before making a dying declaration deceased, when asked by the doctor how he felt, told the doctor he could do him no good and that he was dying "just as fast time can roll," held to warrant a finding that the declaration was made under a solemn sense of impending death so as to render it competent.

3. CRIMINAL LAW. Instruction as to reasonable doubt held improper but not reversible error in view of other instructions.

On a trial for murder, the court charged that the jury should not hunt for doubts or indulge in merely conjectural or chimerical doubts, but that doubts making them hesitate must be reasonable doubts arising out of the evidence or want of evidence; that the jury were not required to know that defendant was guilty before convicting and should not hesitate to find him guilty because able to say, outside of the evidence, that he might have been innocent; but that after considering all the evidence, if they believed beyond a reasonable doubt that he was guilty, they should discharge their duty fearlessly and say so by their verdict. Held, that this was difficult to understand and should have been refused, but it was not reversible error in view of many skillfully drawn and exceedingly liberal instructions granted defendant, repeatedly covering every required element of proof.

[130 Miss. 704]

4. CRIMINAL LAW. Instruction that interest of witness might be considered not error, though defendant's wife was his only witness.

Under Code 1906, section 1923 (Hemingway's Code, section 1583), authorizing examination of any witness touching his interest, an instruction that in weighing testimony of any witness such interest as the witness might have might be taken into consideration was not erroneous, though defendant's wife was the only witness testifying to facts material to the defense.

5. HOMICIDE. Evidence held to justify refusal of peremptory instruction and instruction excluding murder.

On a trial for murder, evidence held sufficient to justify the refusal of a peremptory instruction, and the refusal of an instruction that in no event could the jury find defendant guilty of any higher crime than manslaughter.

HON. S. F. DAVIS, Judge.

APPEAL from circuit court of Humphreys county, HON. S. F. DAVIS, Judge.

Sidney Jones was convicted of murder, and he appeals. Affirmed.

Affirmed.

Frank E. Everett, for appellant.

We admit that the competency of dying declarations is always a question for the court, but the court often makes mistakes in admitting them. That is the ground of our first assignment of error. The dying declaration in this case, copied at page six of the attorney-general's brief, does not approach a dying declaration competent in evidence.

The declaration in the case of Bell v. State, 72 Miss. 508, is as follows: "I saw John when they brought him home the next day, after he was hurt. He told me when they brought him home that he was bound to die and he knew it, for he said: 'I can't live but a few days. I know Ed Bell has killed me. Will die in a few days. . . . I know I will die in a few days for I can't live this way. Ed Bell has killed me. I know it.'"

This declaration was held to be incompetent. In Jones v. State, 79 Miss. 318, the court said: "It was a fatal error [130 Miss. 705] to admit in evidence the testimony of Gordon as to the dying declaration of Ella Bradley. It is manifest that she did not see, and could not possibly have seen who shot her, and that she said appellant shot her simply because he had threatened to shoot her. She was therefore clearly not testifying as a fact that Jones shot her, but was merely stating her opinion that he must have shot her, since he had told her he was going to do so. This was not competent."

In Fannie v. State. 101 Miss. 380, the following declaration: "I could not help myself. He just ran up and hailed me, and I turned around and he shot me the first fire right through. . . . Come carry me back to the doctor. I am shot to death. I am going to die. Make haste and get the doctor. I am bleeding to death. I am going to die. Don't bother me and get the doctor. Make haste, Mamma, and get the doctor, I am going to die," was held to be incompetent and inadmissible.

In McNeal v. State, 76 So. 628, the following declaration: "He said the boys, he never called any name, come up there and persuaded him off, and Frank shot him and did not have any cause, and that he did not do anything to him, and said now they got him. . . . 'I won't be with you much longer; I have got to leave you. Oh, Lord what a pity for Frank McNeal to shoot a poor boy like I am for nothing! I never done anything to Frank,'" was held to be incompetent, because it did not purport to state the facts of the homicide. Therefore, it was error to admit it as evidence.

The next place counsel is in error in his brief, is when he says that the case of Thompson v. State, 83 Miss. 289, has been expressly overruled, and he cites five cases at page eleven of his brief overruling the Thompson case. This statement, we submit, is inaccurate, in that, the authorities cited do not overrule the Thompson case, and the instruction in the case at bar is very different from the instruction in the Thompson case, and all of the cases cited by counsel. The instruction in the Thompson case is: [130 Miss. 706]

"The court instructs the jury that if there are two reasonable theories arising out of evidence of this case one favorable to the state, and the other favorable to the defendant, it is your duty to accept the one favorable to the defendant, although the one favorable to the state is the more reasonable and supported by the stronger evidence." The instruction was approved by Judge TRULY in that case.

In the Rummels case, 96 Miss. 92, the same instruction was asked and refused, and this court, through Judge SMITH, held that even if it should be held that this instruction correctly announced the law, it usually does not constitute reversible error, because the court had instructed the jury over and over again with reference to the reasonable doubt, and does not overrule the Thompson case.

In the Roux case, 97 Miss. 559, the same instruction was asked and in practically the same form as in the Thompson case, and this court said: "This instruction in substance is the same charge that was condemned by this court in the case of Rummels v. State." But we submit that the Rummels case does not condemn this instruction, but simply holds that if the jury is properly instructed with reference to the reasonable doubt, the case will not be reversed because of the refusal of this instruction.

In the Saucier case, 59 So. 858, the same instruction was asked as in the Thompson case, and the court held that it was not error to refuse it, where the jury had been properly instructed by other instructions.

In the Bradley case, 91 So. 277, and Wiley case, 91 So. 906, which are cited by counsel as overruling the Thompson case the court simply adhered to its former ruling, that where the jury had been properly instructed as to the reasonable doubt, the refusal of the instruction asked in the Thompson case is not error.

But we direct the court's attention to the language of the instruction asked and refused in the case at bar, which makes it differ widely from the instruction in the Thompson case or any case cited by counsel, which instruction is [130 Miss. 707] as follows: "The court instructs the jury for the defendant that if there are two reasonable theories in this case, if supported by the evidence, one pointing to the defendant's guilt, and the other to his innocence, and the jury have a reasonable doubt as to which theory is true, then, it is your sworn duty under the law to adopt a theory of innocence, etc."

Surely...