King v. State

• Decision Date: 03 December 1888
• Citation: 5 So. 97,65 Miss. 576
• Court: Mississippi Supreme Court
• Parties: ROBERT KING v. THE STATE

5 So. 97

65 Miss. 576

ROBERT KING v. THE STATE

Supreme Court of Mississippi

December 3, 1888

APPEAL from the Circuit Court of Warren County, HON. RALPH NORTH Judge.

In July, 1888, Robert King was indicted on the charge of having on the 12th of May, 1888, killed and murdered one Gus Cox. He was tried, convicted and sentenced to be hanged. From the judgment against him he appealed to this Court.

The evidence showed that King, Cox, and others were in a justice of the peace's court-room, the two mentioned discussing the settlement of a law-suit between them, when the former commenced shooting the latter with a pistol. Adams, the justice of the peace, who was a witness for the state testified that, when King had commenced to shoot, Cox ran out of the house and, "King ran out of the door behind Cox Cox turned to the right and King to the left, towards home." The witness was then asked what King said, as to the cause of the shooting, after he had been arrested and brought back into the court-room; to which inquiry he replied: "I think Williams said, 'Oh, Bob, what made you do that?' And he said, 'That man threatened my life!'" This answer was, by the Court, excluded from the jury. The proof showed that Cox, after getting out of the courtroom, had turned aside and fallen, and King, having followed Cox out of the house, was going away from him, and in the direction of his, King's, home, when he was arrested and carried back into the court-room, and then, a little more than a minute after the shooting, made the statement narrated by Adams and excluded from the evidence by the Court.

The counsel for the appellant here assign, as errors of the court below, seventeen particulars of that court's action in the conduct of the trial of the accused. But only three of the points assigned for error have been considered by this court, and they relate to the rejection of the evidence offered by the accused, as above stated, and to other evidence offered by him, the nature and purport of which, as well as the circumstances in which the same was rejected, are sufficiently stated in the opinion delivered herein.

Reversed and remanded.

McCabe & Anderson, for the appellant.

Within one minute after the killing was over, and before the defendant had time to cool or concoct a story, he was asked by a person present, why he had done the killing. His reply was: that man threatened my life--that is, tried to kill him. The appellant offered to prove this fact, but the court refused to allow him to do so. The action of the court in this regard is the subject of the appellant's third assignment of error.

The statement of the defendant as to why he killed the deceased ought to have gone to the jury. It was part of the res gestae, and was admissible as such. It was certainly made without any premeditation or artifice, and without any view to the consequences. It would have elucidated the facts with which it was connected. It was also admissible because after admission by the court of other things he said at the time. Scaggs v. State, 8 S. & M., 722.

In addition to the fact that the deceased was a man of bad character, and had made repeated threats against the life of the defendant, defendant offered to prove and show that he, defendant, knew of his own knowledge, that deceased habitually went armed with deadly weapons, to wit: a knife and pistol; that he had had frequent fights in which he used them, and that the defendant had seen him in several fights, in which he made use of such deadly weapons and tried to kill his antagonists therewith. But the court refused to allow the proof or any part thereof to be made.

The action of the court in the particulars named constitutes the subject of our 10th and 11th assignments of error.

The court below erred in both the particulars named.

Actus non reum facit, nisi mens sit rea. Whether or not a man is guilty of a crime in a given case depends upon how the thing looked to him at the time. By the law of the land, as laid down in the repeated decisions of this court, a defendant on trial in a criminal case for murder, where his defence is that of a justifiable homicide, is entitled to the benefit of any quickened apprehensions which may naturally and reasonably arise out of the facts and circumstances that surrounded him at the moment of the killing; and our juries are told, that they are not to try the defendant by the light of after-developed facts and events, nor should they hold him to the same cool and correct judgment which they are now able to form; but must, as far as possible, put themselves in his place, take a view of all the surrounding facts and circumstances, and give to the defendant the benefit of any quickened apprehensions that might naturally and reasonably arise from such surrounding facts and circumstances, and judge of his guilt or innocence accordingly.

Now if the defendant is entitled to the benefit of his quickened apprehensions, aroused in the manner indicated, and the jury are to give him the benefit of such quickened apprehensions, then we claim that he is entitled to have every fact or circumstance that would or might, reasonably and naturally, have quickened his apprehensions, or the apprehensions of a reasonable man situated as he was, go to the jury as lights, by which to judge of his intent. In no other way can they see or know what the surrounding facts and circumstances were. In no other way can they put themselves in his place. In no other way can they give him the benefit of such quickened apprehensions. What is the use to tell the jury that they must give him the benefit of any quickened apprehensions reasonably and naturally arising out of the facts and circumstances surrounding him, and at the same time, withhold those facts and circumstances from their consideration? If miracles were still in order, we might at least hope them success; but the days of miracles, we are told, are over.

The views here announced will be found fully and elaborately outlined in the reasoning of this court in the cases of Spivey v. State, 58 Miss. pp. 864-5-6; Cotton v. State, 31 Miss. 504; and in Horrigan & Thompson, Self-Def., p. 683; 22 Ala. p. 39; 16 N.W. 743.

That the facts here offered to be proved would have quickened, or serve to quicken, the apprehensions of the defendant, or of any reasonable man situated as he was, will hardly be denied. What figure they may have cut in this killing no one knows; or to what extent they would have shielded the defendant had they gone to the jury, and been considered by them. We wager little in asserting that they would have reduced the verdict from murder to manslaughter.

H. C. McCabe, of counsel for the appellant, argued the case orally.

L. W. Magruder, on the same side.

The testimony of Adams as to King's statement one minute after the killing should have been admitted as part of the res gestae. It is not necessary that the words should be coincident in time to the act. If they stand in a causal relation to it, or "part of its condition," or if generated by a feeling produced by the act or event, and spring from it, they are part of the res gestae.

In Mayes v. State, 64 M., 329, a test is laid down as the true rule, which rejects the theory, that the words spoken were made so as to preclude the idea of fabrication. I submit that this is not in accord with the authorities, or in reason altogether satisfactory. It may not be the only test, but surely, it must have weight unless the coincidence of time must exist. Words are part of res gestae, not because...