King v. State

• Decision Date: 14 February 1927
• Docket Number: 25945
• Citation: 146 Miss. 285,111 So. 378
• Court: Mississippi Supreme Court
• Parties: KING v. STATE. [*]

111 So. 378

146 Miss. 285

KING v. STATE. ^[*]

No. 25945

Supreme Court of Mississippi

February 14, 1927

(In Banc.)

1 WITNESSES. Testimony in rebuttal of defendant's statements denying conversations threatening deceased, held admissible under circumstances.

In prosecution for murder, testimony of conversations with defendant in rebuttal to his denial of making statements to effect that deceased had accused him of burning his store and that he was going to kill him if he accused him again held admtssible, in view of evidence in connection with deceased's position at time of killing and proximity of place where killing occurred to store.

2. CRIMINAL LAW. Alleged error in permitting special counsel to consume disproportionate time in argument can only be considered on special bill of exceptions.

Only way that alleged error in permitting special counsel employed by state to consume disproportionate time in argument can be brought to supreme court is for it to be embodied in a special bill of exceptions, which must show abuse of discretion of lower court in that regard.

3 CRIMINAL LAW. Supreme court can take notice of arguments only when objection is taken thereto, and statements embodied in special bill of exceptions.

Supreme court cannot take notice of arguments and what was said during argument, unless objection is taken at time, and statements embodied in a special bill of exceptions, either signed bye the judge, or, in case of his refusal, by two attorneys present in court.

HON. E. J. SIMMONS, Judge.

APPEAL from circuit court of Pike county, HON. E. J. SIMMONS, Judge.

J. K. King was convicted of manslaughter, and he appeals. Affirmed.

Judgment affirmed.

Price & Price, and E. G. Williams for appellant.

M. S. McNeil and J. A. Lauderdale, Assistant Attorney-General, for the state.

Argued orally by E. G. Williams and J. H. Price, for appellant, and M. S. McNeil and J. A. Lauderdale, Assistant Attorney-General, for the state.

OPINION

ETHRIDGE, J.

The appellant, J. K. King, was indicted for the murder of one Virgil Bailey in Pike county, Miss., and was placed on trial for and convicted of manslaughter, and sentenced to a term of seven years in the state penitentiary. From this sentence he prosecutes this appeal.

It is not necessary to set out the facts in detail, as we think there was a conflict in the evidence, and the evidence introduced for the state is sufficient to sustain the conviction. It will only be necessary to set out the facts with reference to the assignments which we shall consider and decide in this opinion.

The appellant testified in his own behalf, and on cross-examination was asked whether he did not, on Sunday before the killing, go into a filling station in the city and have a conversation with some one over the telephone, and if he did not say in that conversation, or at the close of it, in the presence of Mr. Spence, the manager of the filling station:

"If that son of a bitch accuses me of burning his store again, I will kill him."

To which question he stated that he had no recollection of any such conversation, and denied having a conversation over the telephone at that place on said occasion. He was further asked if he did not state to the mayor of the town that Bailey had accused him of burning his store, and he denied making that statement. In rebuttal, the state put these witnesses upon the stand, and they testified to these respective conversations. The mayor testified that Mr. King was in his place of business about five o'clock in the afternoon, before this killing occurred at night; that Mr. King stated to him, "Mr. Bailey has accused me of having something to do with setting fire to his store building;" and he (the mayor) then said, "Mr. Bailey was in here a day or so ago, and he said some one had attempted to burn his building." Mr. King replied, "Yes, he has accused me."

Mr. Spence, a witness to the conversation in the filling station, testified that Mr. King was in that place on Sunday, before the killing on Friday, and had a conversation over the telephone; that, when he hung up the receiver of the telephone, he turned and said:

"If that son of a bitch accuses me of burning his store again, I will kill him."

He did not call any names.

It appears in the evidence that Mr. Bailey had a store in the city, and about a week before the killing some one attempted to set fire to it, and Mr. Bailey had stated to some people that Mr. King was guilty of this act. In view of the evidence introduced for the state in connection with Mr. Bailey's position at the time of the killing and the outcries he made, and in view of the proximity of the place where the killing occurred to the store, we think this evidence was permissible and pertinent to the issue, and there was no error in the admission of same.

It was also assigned for error that the court erred in permitting special counsel employed by the state to consume one hour and a half of the two hours allowed for argument to each side in the closing argument for the state. The facts with reference to this error did not appear by a special bill of exceptions, but by a statement on motion for a new trial to the effect that counsel for defendant, in the absence of counsel for the state, requested the court to control the time which special counsel would be allowed to speak, and not permit him to have so much time in closing the case. The court stated that it did not think it could control that matter. The district attorney opened the case for the state for thirty minutes, but there was no special bill of exceptions to show how fully the case was gone into in the opening argument, nor what was said by the district attorney in presenting the case. The only way that matters of this kind can be brought to this court and assigned for error is for them to be embodied in a special bill of exceptions, which bill must show an abuse of discretion in that regard. Cartwright v. State, 71 Miss. 82, 14 So. 526; Powers v. State, 83 Miss. 691, 36 So. 6.

It is also assigned as error that the court erred in permitting certain statements and arguments to be made by the special counsel employed to assist in the prosecution. The only bill of exceptions with reference to this matter is as...