Jones v. State

• Decision Date: 31 October 1927
• Docket Number: 26607
• Citation: 148 Miss. 531,114 So. 343
• Court: Mississippi Supreme Court
• Parties: JONES v. STATE. [*]

114 So. 343

148 Miss. 531

JONES v. STATE. ^[*]

No. 26607

Supreme Court of Mississippi

October 31, 1927

(Division B.)

CRIMINAL LAW. Map of scene of homicide held admissible notwithstanding hearsay testimony with reference to location of objects.

Map of scene of homicide, drawn by persons who made measurements held admissible, notwithstanding hearsay testimony with reference to locations; such testimony being information given and substantiated under oath at the trial.

Division B

APPEAL from circuit court of Leflore county.

HON. S F. DAVIS, Judge.

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

Judgment affirmed.

Kimbrough, Tyson & Kimbrough, for appellant.

The diagram or plat was offered in evidence as Exhibit "A" to the testimony of Mr. Johnston. Objection was immediately made because of certain entries on the map, but counsel for appellant stated that they did not object to the introduction of the map showing permanent physical structures such as houses, roads, fences, ditches, trees, etc., or distances between them, but they did object "to the location of persons in the field and other matters on there that are not permanent fixtures and of necessity were entered by the witness on hearsay statements."

It was fatal error for the state to be allowed to go to the scene of the homicide and through its county attorney prepare a plat based entirely on hearsay and then examine and cross-examine ignorant negroes, some of whom testified they could not write, and at least one of whom testified that she did not know what the map meant, in reference to such map.

If this map and the testimony in reference thereto had not been presented to the jury, we can see how the jury could readily have brought in a verdict of not guilty in this case. On the other hand, we can conceive of how the jury might have brought in a verdict of guilty, which verdict would, no doubt, have been sustained by this court, but it is folly to argue that the testimony complained of was not of a most influential and damaging character. When it is considered that the county attorney, known personally, no doubt, to each juror in the box and carrying with his testimony the weight of his official position, testified to the correctness of the map, and the witnesses were examined in respect thereto, as to where they located themselves in the fields at the scene of the homicide, it is apparent what tremendous influence such testimony necessarily had on the minds of the jury. If the county attorney had confined his map to the location of immovable physical bodies, such as houses, trees, ditches, etc., and the witnesses had been interrogated in respect to such map, no proper objection, we think, could have been made by appellant; but when the county attorney went into speculation and undertook to locate persons at various points over the fields of appellant and deceased, and then testify as to what the conditions were, what the distances were between these arbitrary points and what his and their observations resulted in, defendant was deprived of that fair trial to which he is entitled under the law.

In this connection, we will cite but two cases which we think conclusively dispose of this matter; namely, Fore v. State, 75 Miss. 727; and Brett v. State, 94 Miss. 669, 47 So. 781.

Rufus Creekmore, Special Assistant Attorney-General, for the state.

The record shows that Means Johnston, county attorney of Leflore county, several days after the killing took place, went out to the scene of the difficulty, taking with him a tape line, and made measurements showing the distances from the deceased's house to the cotton house, from the cotton house to the ditch, from the ditch to a certain thorn tree, etc. After making these measurements, he prepared a map showing the location of these various fixed objects and also showing in a rough way the topography of the ground. The map as originally prepared also showed the location of the deceased and the defendant as the same was pointed out to him by the witnesses. The testimony shows that there had been no change in the physical conditions existing at the time of the killing from that existing at the time the map was made by him, and that the map or diagram as made by him was a correct diagram of the premises. The map was thereupon offered in evidence as Exhibit "A" to the testimony of this witness; whereupon objection was made by counsel for the appellant.

Mr. Sid Gillespie was the owner of the place on which McBee was killed and he accompanied the county attorney to the scene of the killing on the day on which the county attorney made the observations and measured the distances for the purpose of preparing the map. Mr. Gillespie was a witness for the state.

From a reading of the record, it is perfectly manifest that no error was committed by the court in permitting this map to be introduced in evidence and to be seen by the jury. The only objections which counsel made to...