Lott v. State

• Decision Date: 05 February 1934
• Docket Number: 30763
• Citation: 152 So. 488,168 Miss. 710
• Court: Mississippi Supreme Court
• Parties: LOTT v. STATE

152 So. 488

168 Miss. 710

LOTT v. STATE

No. 30763

Supreme Court of Mississippi

February 5, 1934

Division B

1. CRIMINAL LAW.

While party in criminal case is not confined to any particular order of offering proof, if evidence is incompetent when offered, party must show how it will be made competent.

2. CRIMINAL LAW.

Where evidence of defendant's wife in murder prosecution relative to prior trouble with decedent was excluded, it should have been reoffered after defendant had testified respecting such matter, manifest purpose of testimony being to inject so-called unwritten law into case.

3. CRIMINAL LAW.

Court will not reverse conviction unless it appears after full complete trial that there was error which would probably have influenced jury.

4 HOMICIDE.

In murder prosecution, exclusion of testimony of defendant's wife, manifestly offered for purpose of injecting so-called unwritten law into case, held not reversible error, since it would not, probably, have influenced jury to return different verdict.

HON. D M. ANDERSON, Judge.

APPEAL from circuit court of Leake county, HON. D. M. ANDERSON Judge.

Ed Lott was convicted of murder, and he appeals. Affirmed.

Affirmed.

W. T. Weir, of Walnut Grove, Ross R. Barnett, of Jackson, and T. J. Barnett, of Carthage, for appellant.

Evidence of previous difficulties between defendant and the person killed or assaulted . . . is admissible. It is also proper to introduce evidence of facts tending to show the cause of such difficulties and ill feeling.

Wells v. State, 73 Miss. 456, 19 So. 258; 30 C. J. 182; King v. State, 5 So. 97; Brown v. State, 40 So. 737; Brown v. State, 47 So. 1009; Echols v. State, 55 So. 487; Burks v. State, 57 So. 367; Leverett v. State, 73 So. 273; Clark v. State, 85 So. 190; Mott v. State, 86 So. 515; Johnson v. State, 54 Miss. 430; Hester v. State, 110 So. 443.

Lott testified as to the overt act on the part of the deceased to bring him within the rule permitting him to show previous difficulties with the deceased.

This court has held that a defendant in a murder prosecution may show "any previous or concurrent circumstances which reasonably tend to increase recent provocation."

Lee v. State, 134 So. 187.

It is our opinion that if Mrs. Lott's testimony could have gone to a jury, it would amply have corroborated Ed Lott's testimony, and had the jury believed her, would have been sufficient, in our minds, for the jury to have been of the opinion that Lott was not guilty of murder and, at the worst, the killing was merely manslaughter.

McCormick v. State, 132 So. 757; Cartee v. State, 139 So. 618.

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

When the state rested its case, there was absolutely no conflict in the testimony as to who the aggressor was--it being at that time shown that the defendant was the aggressor,--that he had shot Slay at a time when Slay had absolutely no knowledge of the presence of accused.

The defendant opened his case with a great number of character witnesses, and then introduced Mrs. Lott, and undertook to prove previous difficulties.

At the time this testimony was offered it was incompetent, because there was no conflict as to who the aggressor was in the fatal difficulty. It is true that Ed Lott later came on the stand and by his testimony probably raised a conflict sufficient to make his wife's testimony admissible, but her testimony was not offered again, when the issue made it competent. At the time her testimony was offered, the court could not foresee or foretell what, if any, other witnesses would testify. His ruling was eminently correct.

King v. State, 5 So. 97; Brown v. State, 40 So. 737; Echols v. State, 55 So. 487; Moorman v. State, 69 So. 1002; Clarke v. State, 85 So. 188; Mott v. State, 86 So. 515; Johnson v. State, 54 Miss. 430; Hester v. State, 110 So. 443; Lee v. State, 134 So. 187; James v. State, 139 Miss. 521, 104 So. 301; Hill v. State, 16 So. 901; Muse v. State, 158 Miss. 449, 130 So. 693; Kelly v. State, 156 Miss. 535, 126 So. 194; Reece v. State, 154 Miss. 862, 123 So. 892; Callas v. State, 151 Miss. 617, 118 So. 447; Salmon v. State, 151 Miss. 539, 118 So. 610.

Argued orally by Ross R. Barnett, for appellant, and by W. D. Conn, Jr., for appellee.

OPINION

Ethridge, P. J.

Ed Lott, appellant, was indicted, tried, and convicted of the murder of Dempsy Slay, and sentenced to the penitentiary for life, from which judgment he appeals.

It appears that Lott shot Slay and one Bilbro from a barn owned by Lott in which he had dug a pit in preparation for trouble with his neighbors, and that just prior to the killing of Slay, Lott fired at a Mr. Thomas who was passing, which shot attracted the attention of some neighbors. Ten or fifteen minutes later these same neighbors heard two shots, and one neighbor was in a position to see the smoke, and also saw two men fall, Slay falling first being instantly killed. Bilbro, who was with Slay, started to call for help and started back in the direction from whence they came, and was shot down by Lott. It was proven that both Slay and Bilbro were unarmed and in their shirt sleeves, and were passing on the highway in front of the house and barn of Lott, and that Lott fired on them, from the barn without any words or any warning. A number of witnesses were attracted by the shooting, and they could see the smoke from the gun coming from the barn, some of them seeing Bilbro fall, and a number of them hearing his call for help.

The men who were shot remained where they fell for a considerable time, from one to two hours. The sheriff was sent for and he came, as did also the marshal of Walnut Grove. After the officers arrived, men were displayed at points where they could observe and shoot into the barn, the sheriff instructing them not to shoot unless Lott fired; and the sheriff then tried to get Mrs. Lott to communicate to Lott the fact that he was the sheriff and would not hurt Lott, but was only seeking to arrest him, and to urge him to surrender. This Lott refused to do, and a few minutes later fired on the assembled crowd, quite a number of shots being fired at that time in which Lott was wounded. Just prior to the shooting, Mrs. Lott had gone into the barn where her husband was, and as he started to shoot, she made an outcry for him not to do that since so many people had assembled. One man, under the direction of the sheriff, went along the side of the barn, and saw a gun barrel sticking out; wrested it away, and Lott was brought out of the barn, both he and Mrs. Lott being wounded. They were taken to jail, and later, Lott was conveyed to the hospital in Jackson, Mississippi. He made a statement to the sheriff that he dug the pit for the purpose of using it in fights; that he thought all the neighbors were against him; and that they would mob him. He stated he thought Bilbro was one Lewis. He repeated his statements to the sheriff after he was placed in the jail in Hinds county.

The only error assigned in the appeal is the exclusion of the testimony of Mrs. Lott, wife of appellant, who testified that about two weeks before the killing, Slay came to her house and asked about her husband; that she told him her husband was away, and that Slay then asked her to let him come in and she picked up a pistol and told him to go away and he left; that she told her husband this, and he demanded of Slay that he make amends, which he refused to do; that she was not present when her husband made...