King v. State

• Decision Date: 08 February 1897
• Citation: 21 So. 235,74 Miss. 576
• Court: Mississippi Supreme Court
• Parties: TOM KING v. STATE OF MISSISSIPPI

21 So. 235

74 Miss. 576

TOM KING v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

February 8, 1897

October 1896

FROM the circuit court of Tare county HON. Z. M. STEPHENS, Judge.

Tom King, the appellant, was indicted for the murder of one Walter Clayton. The evidence showed, or tended to show, that defendant laid in wait for the deceased in the early part of the night of the killing, and made threats of doing great bodily harm to deceased if he had to wait on the roadside along which deceased was expected to come, until midnight. When the deceased came he was in the company of others, and defendant accompanied them along the road, the parties indulging in a spirited quarrel as they went. It appeared however, for a while before the homicide, that the controversy had ended, but it was again suddenly renewed, and defendant struck deceased with a piece of a fence rail and killed him. Some hours after the homicide and during the same night, the defendant and a witness returned to the scene of the killing in search of a knife with which defendant claimed the deceased was endeavoring to cut him at the time of the encounter, and, while making the search in the dark defendant, who was stooping and feeling about, arose, saying "Here is the knife, " and produced a "longhandled barlow, " which he asserted he had found on the ground.

The sixth instruction given for the state was in these words: "6. If you believe from the evidence, beyond a reasonable doubt, that defendant made threats the night of the killing and before the killing, that he would get the deceased that night, and that he would make it right with him if he had to wait till midnight, and that he was afterwards seen on the road traveled by deceased; that when deceased came along defendant provoked a difficulty and procured a dangerous weapon, a piece of rail, and attempted to strike deceased when deceased was doing nothing to defendant, and was prevented from doing so, but that he, defendant, still retained the weapon in his hands and followed deceased up, then deceased would have had a right to draw a knife in his own defense; and if defendant then struck deceased and killed him, he is guilty of murder, and you should so find."

The nineteenth instruction asked by appellant, and which was refused, was as follows:

"19. If the jury believe, from the evidence, that defendant waited by the road for deceased, and stated, in effect, that he was waiting for deceased, to raise a difficulty with him, the jury will reject and discard this testimony altogether, in arriving at their verdict, if, considering all the evidence in the case, they have a reasonable doubt as to whether defendant was waiting for deceased for the purpose of killing him, or simply for the purpose of having a fight with him without weapons. This testimony will also be discarded by the jury in arriving at their verdict, if, from all the testimony in the case, they have a reasonable doubt whether the killing was the result of a sudden encounter, or was the accomplishment of a purpose in the mind of defendant while he was waiting by the road."

The other instructions referred to by the supreme court are sufficiently given in the opinion.

Reversed and remanded.

Eugene Johnson and J. F. Dean, for appellant.

The statement of the defendant, "while feeling around on the ground" in the dark, "Here is the knife, " or "I've found the knife, " at the very time he finds it, or at the very time he raises up with it in his hand, is competent testimony, and should have been admitted. The statement is a part of the res gestae. It is a verbal act. It is a declaration accompanying the act, that explains it and gives it character. That this testimony should have been admitted, we contend is clearly sustained by overwhelming weight of authority. Greenl. on Ev., vol. 1, sec. 108, note 2; Mayes v. State, 64 Miss. 329. Whether the deceased was armed with a knife is one of the vital questions in this case. Defendant testified to this fact, and put on the stand another witness to corroborate his own statement. The ruling of the court deprived him of the full force of the testimony of this witness. The weight to be given this testimony was for the jury, not the court. The court had no more right to assume that the exclamation or statement made at the time of picking up the knife was pretended or feigned, than to conclude that defendant's whole statement about it was fabricated. The re-examination by a party of his witness should be confined to explaining and setting himself right on points which the cross-examination has brought out, but not fully developed, and which need explanation, so that the testimony of the witness may be fairly and clearly understood.

In this case the state had an advantage to which it is not entitled, it had its important testimony repeated to the jury at the very end of the case. Dillard v. The State, 58 Miss. 368.

The sixth charge for the state is erroneous, because it wholly omits the necessary qualification that the threats, to be of any value as testimony in the connection given, must have expressed a purpose on the part of defendant to kill the deceased, or to do him some great bodily harm, and that this was defendant's purpose or design at the time he uttered them.

The fifth instruction for the state is certainly erroneous. After the numerous decisions of this court (Cunningham v. State, Polluck v. State, Hawthorne v. State, and others), it is useless to discuss before any intelligent tribunal in Mississippi the doctrine of the burden of proof in criminal cases. However, the very language of the charge in question has been passed on and condemned. Hawthorne v. The State, 58 Miss. 778.

Wiley N. Nash, attorney-general, for appellee.

The facts show that appellant was seen lying in wait for the deceased on the road he knew deceased would have to travel to get to his home, and he stated that he was there to "get" Clayton, and would do so if he had to stay there until midnight. King was the aggressor throughout, from first to last, from the meeting until the death. More than this, he brought on the difficulty; he provoked it, while the deceased all the while was trying to avoid a difficulty. The appellant, when the fatal blow was given, did not act fairly but took advantage of the deceased. He evidently slipped up on Clayton and killed him when...