Lee v. State

• Decision Date: 22 December 1924
• Docket Number: 24146
• Citation: 137 Miss. 329,102 So. 296
• Court: Mississippi Supreme Court
• Parties: LEE v. STATE. [*]

102 So. 296

137 Miss. 329

LEE v. STATE. ^[*]

No. 24146

Supreme Court of Mississippi

December 22, 1924

Suggestion of Error Overruled Jan. 12, 1925.

APPEAL from circuit court of Hinds county, HON. W H. POTTER, Judge.

Eddie Lee, alias Eddie Lee Lofton, was convicted of murder, and he appeals. Affirmed.

Judgment affirmed.

Geo. L Teat, for appellant.

I propose to discuss only two propositions in this brief, the first proposition being: That the lower court grievously erred in permitting the state to do what it purported to call impeach the two principal witnesses of the defendant, to-wit his mother Martha Ann McMullen and his step-brother Mose McMullen on what was clearly collateral, immaterial, irrelevant and incompetent matter. The second proposition is that the trial court erred in permitting the state to introduce evidence, to the effect that the defendant committed two robberies en route from Vicksburg to Edwards on the evening of the alleged homicide, the objection being that the full details of the alleged robberies were given in evidence although the defendant was on trial for murder and not for robbery.

The foundation and bed-rock for the proposition of which this brief stands, was laid by Judge WHITFIELD speaking for this court in the case of Napoleon Williams v. State, 73 Miss. 823. This case is a very much more favorable case for the state than the case at bar, because the time and place and nature of the statement was much more closely related to the alleged crime, than are the contradicted facts here complained of. Garner v. State, 76 Miss. 515; Dunk v. State, 84 Miss. 452; Davis v. State, 85 Miss. 416; Bell v. State, 38 So. 796. It is impossible to conceive of a more highly prejudicial abuse of the rule of law prohibiting the impeachment and contradiction of witnesses on collateral matters as was done in the instant case. As was said in several of the foregoing cases, the mere bare statement of this testimony demonstrates its utter incompetency, irrelevancy and inadmissibility, unless the court here refuses to follow the long settled and well-recognized rule of evidence which forbids a witness to be contradicted and impeached upon matters collateral to the issue in the case.

On the second proposition as to whether the court committed error in permitting a full trial of the defendant and complete detail of testimony on the two robberies, testified to by the witnesses for the state, but which robberies were not included in the indictment upon which he was being tried, I shall be very brief. Whitlock v. State, 6 So. 237.

S. C. Broom, for appellant.

In discussing the first proposition we desire to call the court's attention to our motion made at the very beginning of the trial and before any evidence had been introduced on behalf of the state to strike from the indictment the words "Alias Lofton." The court overruled this motion. We knew then and it is now affirmatively shown by the record, and is uncontradicted that there was a negro named Eddie Lee Lofton living in the city of Jackson. We believed that a mistake had been made and we knew that whenever the word "Alias" is used in connection with a man's name that it registers an impression on the mind of those who were present that this man is now under an assumed name or has at sometimes gone under an assumed name and the inevitable conclusion is that there can be no excuse or reason for going under an assumed name except for the purpose of avoiding some legal penalty. The chief of police should never have been permitted to testify as to this hearsay statement of the co-defendant Lester Hurd. Under no theory of the law is the confession of a co-defendant admissible in evidence against a co-defendant.

The second proposition constitutes fatal and reversible error. It was in keeping with the general scheme of the prosecution to overwhelm the defendant with suspicion, by innuendo as in the first proposition, and by direct proof as stated in the second proposition where they went into great detail and proved him guilty of the crime of robbery of a negro in Warren county several hours before the marshal was killed. It will be observed that an effort was made to introduce an alleged confession of the defendant. The chief of police had sworn that he had made a statement to him. It will be observed that the court was in error as to the law in such cases. Ellis v. State, 65 Miss. 44; Hunter v. State, 74 Miss. 515; Draughn v. State, 76 Miss. 574; Johnson v. State, 107 Miss. 196. It will be seen that the learned court below was in error as to the law. It will be seen from these authorities that the competency of the evidence and its admissibility is a question of law to be determined by the court. Having determined its competency and admissibility, it is then for the jury to say whether the confession thus voluntarily made is true or untrue. The state utterly failed to make out a case in chief.

The motion was predicated upon this proposition. It is of course, immaterial whether the proof shows him to be a principal or accessory before the fact. But in either case it must be shown: First, that he fired the fatal shot which resulted in the death of Mr. Lancaster; or, second, that there was a conspiracy to kill if necessary; or, third, that he was present for the purpose of aiding and abetting; or, fourth, did aid and abet; or, fifth, did perform some overt act, and; sixth, if he was an accessory before the fact it must first be shown who the principal was that did actually kill Lancaster. Harper v. State, 83 Miss. 402; Osborne v. State, 99 Miss. 410; 9 Am. & Eng. Law 575; 2 Thompson, Trials, sec. 2216.

The prosecution proceeded to make out a case in rebuttal that could not be made out in chief; and, brought on witnesses, among others the chief of police, and proceeded to fill in where necessary and bolster up their case. Defendant then and there promptly objected, which objection was overruled. Davis v. State, 85 Miss. 416; Williams v. State, 73 Miss. 820.

H. M. Bryan, assistant attorney-general, for the state.

The proof was amply sufficient to sustain conviction. We have gone into great detail and have possibly encroached upon the patience of the court in setting out what we deem to be the salient portions of the testimony in this case, because as we view the record, the question of sufficiency of proof is in reality the only serious matter to be considered. It is our contention that whether appellant actually fired the shot that resulted in the death of Ollie Lancaster, or whether he was a part of a conspiracy, engaged in the commission of unlawful acts amounting to a felony, and was present at the homicide with his companions in crime, the result is the same.

The overwhelming accountability for the presence of appellant at the time of the homicide as adduced by the state was not shaken by the defense in this case and it is immaterial whether the jury believed that the appellant actually fired the gun,--if he was present, aiding, abetting, encouraging or participating in the homicide, he occupied the status of a principal. The authorities even go further and lay down the general rule that: "All who join in the common design to kill, whether in sudden emergency, or pursuant to a conspiracy are liable for the acts of each of their accomplices and furtherance thereof. This liability attaches whether the acts were specifically contemplated or not, and although defendant did not know when or how the homicide was to be committed, or what particular individual was to do the killing, or, although defendant was under the impression that the person whose death he was endeavoring to bring about was a different individual from the one actually killed. The accomplices are so liable, although the conspirator who actually committed the homicide cannot be identified." 29 C. J. 1072; Peden v. State, 61 Miss. 267.

There is nothing in this record which could have led any juror to believe that the appellant withdrew from the common design to rob and resist arrest. One may escape responsibility for a homicide committed by a confederate in pursuance of the common design, if, before it is committed, he withdraws entirely from the undertaking and such fact is communicated to his associates under such circumstances as would permit them to take the same action. The rule is clearly expressed in 29 C. J. 1076. It cannot be denied that Ollie Lancaster was at a place where he had a right to be. He had the authority of law back of him to arrest the three robbers, who had been previously described to him, on sight. White v. State, 70 Miss. 253; Bridges v. State, 20 So. 348; Israel v. State (Tex. Crim.), 230 S.W. 984, 15 A. L. R. 453; Tolbert v. State, 71 Miss. 179, 14 So. 426, 42 Am. St. Rep. 452. While it is true that the instant case differs somewhat in its facts from the Tolbert case in that appellant had not been previously convicted and was not an escaped convict, yet the same rule applies because of the clearly established antecedent robbery. Douglas v. State, 44 So. 817; McCoy v. State, 91 Miss. 257, 44 So. 814; Sullivan v. State, 85 Miss. 149, 37 So. 1006; Jones v. State, 70 Miss. 401, 12 So. 444; Simmons v. State, 51 Miss. 243; Dean v. State, 85 Miss. 40, 37 So. 501.

The court did not err in admitting testimony showing the robbery by appellant and his companions immediately prior to the homicide. It is a well-known rule of evidence that testimony showing other crimes should be admitted for the purpose of showing motive and full identification. Wharton's Criminal Evidence, 1736; People v. Pool, 27 Cal 572; 3 Greenleaf's Ev., sec. 13; 1 Bish. Cr. Law, secs. 253 to 257; Fowler v. Padget, 7 Term R. 514; State v. Williams, 28 Nev. , 82 P. 353; State v. Morgan, 22 Utah 162, 61 P....