Lee v. State

• Decision Date: 10 May 1937
• Docket Number: 32711
• Citation: 174 So. 85,179 Miss. 122
• Court: Mississippi Supreme Court
• Parties: LEE v. STATE

174 So. 85

179 Miss. 122

LEE v. STATE

No. 32711

Supreme Court of Mississippi

May 10, 1937

Division B

1 WITNESSES.

Refusal to admit impeaching evidence that eyewitness to homicide had bad reputation for truth in community in which eyewitness formerly lived held reversible error, notwithstanding that impeaching witness did not know eyewitness's reputation in community to which eyewitness subsequently moved.

2 HOMICIDE.

Firing into house in nighttime with knowledge that house was occupied and that persons were sleeping therein was done in commission of act evincing a reckless disregard for human life, and with intent to injure some person therein, and town marshal living in house had such probable cause to believe that person firing gun had committed felony as would warrant marshal in arresting person without warrant (Code 1930, sections 793, 985, 1224, 1227).

3 HOMICIDE.

Instruction that town marshal did an unlawful act when he fired into automobile while attempting to arrest occupants who had immediately prior thereto fired into marshal's house with reckless disregard of human life and with intent to injure some person therein held reversible error, since marshal was warranted in making arrest, under statutes, without warrant (Code 1930, sections 1224, 1227).

4 HOMICIDE.

Evidence that deceased, whom town marshal killed while attempting to arrest deceased without warrant immediately after deceased fired into town marshal's house in nighttime, had stated some six months before, that deceased would be tried for killing marshal and not for possessing intoxicating liquor if liquor prosecution were deferred, was relevant as indicating hostile state of mind and furnishing motive on part of deceased to kill marshal.

HON. T. H. McELROY, Judge.

APPEAL from the circuit court of Calhoun county HON. T. H. McELROY, Judge.

J. L. Lee was convicted for murder, and he appeals. Reversed and remanded.

Reversed and remanded.

Patterson & Patterson, of Calhoun City, and Creekmore, Creekmore & Capers, of Jackson, for appellant.

In support of appellant's contention that he was in his home asleep when someone fired into it, he offered the testimony of himself, his son and his daughter-in-law, all interested witnesses. The testimony showed that Mrs. Ellenberg, a disinterested party, was in the home at the time. What would be the natural effect of her failure to testify on the jury? Certainly, the jury, as reasoning men, would naturally conclude that Mrs. Ellenberg's testimony would not support the appellant, or he would have offered it; or that she knew nothing that would throw any light on the situation. She testified out of the hearing of the jury, on objection of the state, strongly corroborative of the appellant's contention, and of his testimony and that of his son and daughter-in-law, as to all that occurred until the appellant had left the room the second time with a shot gun and flashlight, and until she heard appellant say, "Halt, Sledge," followed by two shots. She did not see what occurred out in the highway when the killing took place as she remained in the bedroom. After she had testified at length before the court, the court excluded her testimony, saying: "The court will rule this way: So far as this witness' testimony goes that it shows there was a misdemeanor committed, but it does not show that there was any knowledge who committed the misdemeanor. Therefore, I will sustain the objection." In this ruling we respectfully insist the court was in grave error in two particulars. First, in excluding the testimony, and second, in ruling that the testimony showed there was a misdemeanor, only, committed.

Brown v. State, 88 Miss. 167, 40 So. 737; Marley v. State, 109 Miss. 717; McCormack v. State, 159 Miss. 610, 132 So. 757; Cartee v. State, 162 Miss. 263, 139 So. 618; Carr v. State, 157 Miss. 102, 166 So. 363.

It was error to give the instruction as follows: "The court charges the jury for the State that even though you may believe that the deceased shot into the house of the defendant some few minutes before the fatal shooting, the court now says to you that that of itself is no justification or authority for the defendant, even though he was an officer of the law, to shoot at the car or casing of the deceased as it passed the defendant or to kill deceased, and that when the defendant so shot at the car or casing he was then and there doing an unlawful act although he only intended to bring the car to a halt and arrest the deceased."

Cartee v. State, 162 Miss. 263; Section 988, Code of 1930.

The lower court ruled, early in the progress of the trial, that the shooting into the house of appellant was only a misdemeanor and the entire trial was conducted in obedience to this ruling and the instruction complained of was given on that theory. Then the question arises: Was the act of the deceased in firing into the home of appellant a misdemeanor or a felony? Or, to state it another way, if the shot fired into the window casing had gone a few feet further north and killed Lantrip, would the one who fired the shots from the highway into the house have been guilty of murder? If so, the fact that Lantrip was not killed operates only to reduce the offense from murder to assault and battery with intent to murder.

Section 985, par. B, Code of 1930; Talbert v. State, 172 Miss. 243, 159 So. 549; White v. State, 169 Miss. 332, 153 So. 387; Banks v. Texas, 211 S.W. 217.

In the case of Washington v. State, 60 Ala. 10, the court held that if a person intentionally discharged a firearm into a dwelling house in which he has reason to believe there are people living, thereby killing a person therein, he is guilty of murder though he had no intention to kill or injure anyone.

State v. Capps, 134 N.C. 622.

The instruction was in the teeth of section 1227, Code of 1930, wherein it is provided that any person may arrest anyone without warrant when such one has committed a felony though not in his presence.

The instruction complained of gave undue prominence to the particular facts stated therein.

64 C. J. 682; Prine v. State, 73 Miss. 838; Gordon v. State, 95 Miss. 543, 49 So. 609; Potera v. Brookhaven, 95 Miss. 774, 49 So. 617; Moorehead v. Gilmer, 153 Miss. 467, 121 So. 143; Gurley v. Tucker, 170 Miss. 569, 155 So. 189.

The court below was in grave error in excluding testimony of R. A. Stafford.

This witness definitely and positively testified that he knew the general reputation of the witness Kincaid in the community where he lived; that it was bad and therefore he would not believe the witness on oath.

It is too well settled in Mississippi that a witness may be impeached by his general reputation for truth and veracity for it to be necessary to cite authority. It was certainly a question for the jury to determine on the testimony of the witness whether he, in fact, had sufficient knowledge of the reputation of the witness to testify and it was not permissible for the court, as a matter of law, to say that the testimony was of no probative value nor can it be said that the exclusion of the testimony was error without injury, for the State's whole case depended on the testimony of the witness Kincaid.

Norwood v. Andrews, 71 Miss. 641.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

It is well enough at this point to refer to the rule of this court that a trial court's ruling will be upheld if the right result has been reached, even though a wrong, insufficient or no reason has been given for such ruling.

Carter v. State, 167 Miss. 311, 145 So. 739; Tucker v. State, 103 Miss. 117, 60 So. 65; Mott v. State, 123 Miss. 729, 86 So. 514.

When Mrs. Ellenberg's testimony was offered there was no testimony to show that deceased had made any act of aggression and consequently the state of mind of the parties toward each other was not relevant. Her testimony might have been competent later, but it was not when it was offered and it was never re-offered after the aggressor was in issue.

It is a familiar rule of law that one, even though he be an officer, has no right to arrest a party for a misdemeanor unless the misdemeanor is committed in his presence or he has a warrant of arrest.

One may not use firearms to effect the arrest of a misdemeanant, even though fleeing from arrest, or to retake him after he has been arrested.

Brown v. Weaver, 76 Miss. 7, 23 So. 388; Kelly v. State, 156 Miss. 535, 126 So. 194.

The instruction complained of merely advises the jury of this rule of law. It certainly cannot be distorted into a charge on the weight of the evidence. Assuming that deceased was the one who shot the house of appellant and assuming that appellant knew that deceased was the one who did it, he still would have had no right to resort to the use of firearms to effect his arrest, unless such act constituted a felony.

Faulkner v. State, 170 Miss. 195, 154 So. 338; Sections 789 and 862, Code of 1930.

We submit that the trial court was not in error in assuming the position it did, nor was the instruction erroneous insofar as it undertook to present to the jury the proposition that such an act was a misdemeanor and that appellant had no right, under the law, to shoot the deceased, or to shoot at him in order to effect his arrest though he had known that deceased was the one who shot his house.

In connection with this instruction, appellant argues that it is erroneous in the further respect that it singles out a part of the evidence and charges on the weight of it. If the alleged act of deceased in shooting the house did, in fact constitute, at most, a misdemeanor, then it must be conceded that the instruction states a correct rule of law. To refuse this instruction for the State...