Leverett v. State

• Decision Date: 23 December 1916
• Docket Number: 19294
• Citation: 73 So. 273,112 Miss. 394
• Court: Mississippi Supreme Court
• Parties: LEVERETT v. STATE

73 So. 273

112 Miss. 394

LEVERETT v. STATE

No. 19294

Supreme Court of Mississippi

December 23, 1916

Division B

APPEAL from the circuit court of Forest county, HON. PAUL B JOHNSON, Judge.

Thomas H. Leverett was convicted of murder and appealed. The facts are fully stated in the opinion of the court.

Case reversed and remanded.

E. E Rose, Currie & Currie and J. W. Cassedy, for appellant.

If the jury believed the appellant went up to Richton Mill on the night just previous to the shooting, looked into the mill and saw Bradley, the deceased, while he was engaged about his work, in the face of his denial, this would go a long ways toward convincing them that appellant's business in Richton was to look him up and kill him. It was on this theory that the evidence was offered and on this theory that it was allowed by the court. For the present purposes we assume that it will be agreed that the intent and purpose of the evidence was material, and that it was received, and materially aided the state in securing a conviction.

The only question then left to consider was the court in error in allowing this testimony to go to the jury? The objection to the testimony was that it was not sufficiently shown that the appellant was the person the witnesses were saying that they saw looking into the Richton mill window. We contend that before this evidence should have been allowed to go to the jury the state must have made out at least a prima facia case of the defendant. We readily agree that the identity of a person may be shown in many ways, but our contention in this case is, it must be shown in some way. Just suspicion or inference, or probability certainly would not be sufficient. (Wigmore on Evidence, sec. 411-412-413, and State v. Alton 105 Minn. 410, 15 Am. & Eng. Ann. Cases 806.)

Second. The court erred in ruling out the testimony of Dr. W. W Weathersby, Mrs. T. H. Leverett and S.W. Wilkerson. (Under this heading assignments number 8-9-10-11-12-13-14 and 15 will be included.)

We contend that however strong the case may be for the state, the defendant was entitled to have his version of the case submitted to the jury, even though his version of the case was supported by his testimony alone. This identical question was before the court in the case of Harris v. State, 72 Miss. 99.

This court also in the case cited below has held that when evidence has been offered tending to prove that the deceased was the aggressor, even though there may be a conflict of testimony on the point, evidence of previous though uncommunicated threats is to be admitted as supporting the other evidence. See Johnson v. State, 64 Miss. 430; Guice v. State, 60 Miss. 714; Hawthorn v. State, 61 Miss. 749; Johnson v. State, 66 Miss. 189; Echoles v. State, 55 So. 485; Bell v. State, 66 Miss. 192; Miles v. State, 54. So. 946; Prime v. State, 73 Miss. 838.

The testimony of Wilkerson was admissible on two theories, first, it corroborated the defendant as to the beginning of the difficulty; second, it corroborated the testimony of Dr. W. W. Weathersby in that it helped to identify the person who was talking to and who made the threats against the life of the defendant, as being the deceased Bradley, and it linked in and corroborated the testimony of Mrs. Leverett as to the telephone conversation in which deceased Bradley again threatened defendant's life.

We respectfully submit that the action of the court in ruling out this testimony alone is sufficient to entitle the defendant to a new trial.

In passing on the instructions we submit to the court without further argument that instructions for the state numbered 1, 2, 3, and 4, are erroneous for the reasons stated in the assignment of error and motion for a new trial. We do not renew said statements now, because nothing further can be added to the statements already given. We wish to discuss, however, instructions numbered 5 and 9 together. The court will note that instruction number 5 and also instruction number 9 singles out a part of the testimony and an important and material part, and calls the jury's special attention to same, and directs them in instruction number 5 that--"still the finding and reading of this letter is no excuse, justification nor defense for the taking of the life of Ed. Bradley"--and instruction number 9 says--"still such conduct in writing the same on the part of Leverett's wife, does not in law, justify or excuse, nor makes a legal and lawful defense for the taking of Ed. Bradley's life by Leverett, the defendant, and you should not so consider the same if you believe from the testimony beyond a reasonable doubt Leverett killed Ed. Bradley."

We think the writing of the letter above referred to, was a very important item to be considered by the jury in determining who was the aggressor in the difficulty. On this theory and on this theory only, the letter was allowed by the court to be introduced in testimony and it ought to have been received by them, as any other part of the testimony without being singled out, separated and set apart in instructions by the state, and specifically condemned by said instructions. We contend that a man ought to be tried by the law as a rule, and that the testimony ought not to be pointed out by the court in a way to effect its weight as testimony.

We submit that instructions number 6 and 7, ought to have been refused by the court because instruction number 6 announces that--"the only excuse or justification offered by the defendant for the killing of Ed. Bradley is self-defense."--This is a peremptory instruction, withdrawing from the jury's consideration the defense of . . . failure to believe the testimony offered on any material point. Instruction number 7 goes still further than instruction number 6 and announces to the jury that . . . "the defendant offers self-defense for the killing of Ed. Bradley and under the law in this case, you should not consider any defense other than that offered and supported by the testimony in this case."

The court will note that instruction number 6 used the statement that the only excuse or justification offered by the defendant, etc., and instruction number 7 after announcing the same proposition is peremptory that the jury were not to consider any defense other than that . . . "offered and supported by the testimony in this case." The reading of these two instructions together will convince the court that the effect of these two instructions were to remove the burden, from the state, of showing defendants guilt beyond every reasonable doubt and placing the burden upon the defendant to offer some satisfactory defense, and see that same is supported by the testimony whereas we understand the rule to be that the state must show the defendant to be guilty beyond all reasonable doubt, and this is true even though the defendant offered no testimony or no defense.

We respectfully submit that the court was in error in granting the instructions above referred to for the state, and because of this appellant should be awarded a new trial.

We wish to call the court's attention particularly to instruction number 1, the court having allowed the defendant in his testimony to state to the jury the threats delivered by deceased to him while at Columbia. We undertook before the court in this instruction to say to the jury for what purpose this testimony might be received by them. After the court had granted to the state instructions numbered 5 and 9 saying to the jury that the finding and reading of the letter was no excuse or justification for the killing, and was not to be considered by the jury in that connection, it then became of greater importance to the defendant to have the jury properly instructed, as to how this testimony might be received by the jury, so in instruction number 1, we requested the court to instruct the jury that the threats used in connection with this particular transaction and allowed by the court in the evidence were to be taken into consideration in determining which was the aggressor in the difficulty. We have heretofore cited the court on the question of the admissability of the testimony of Dr. W. W. Weathersby, Mrs. T. H. Leverett and Wilkerson, the cases decided by this court on the question of the admissability of threats communicated and uncommunicated, each of these cases also pronounce the rule that the purpose of such testimony is to aid the jury by the consideration of the threats in determining who was the aggressor in the difficulty.

We also direct the court's attention to instruction number 2; nowhere in the case, from the defendant's point of view, has the jury been told the meaning of the law term, "overt act." The state by its instruction told the jury that if the appellant killed deceased at a time when he was in no danger real or apparent, etc. . . . then he was guilty of murder. From appellant's point of view it then became highly important for the jury to be instructed as to what the law was with reference to the meaning of an overt act. An overt act as we understand it, may be a motion or a gesture, which under ordinary circumstances would be considered trivial, but if weighed in the light of the surroundings and taking into consideration the attitude of appellant and deceased at the time of the shooting, then such motion or action could be considered as an overt act. For this reason we say, the court ought to have granted instruction number 2 explaining this matter to the jury.

Ross A. Collins, Attorney-General, for the state.

The trial judge must exercise some discretion in excluding from the jury prior threats and details of controversies which under the facts of the case have no relevancy.

In the case of Holly v. State, 55 Miss. 425, CHALMERS, J in...