Maddox v. State

• Decision Date: 07 October 1935
• Docket Number: 31831
• Citation: 173 Miss. 799,163 So. 449
• Court: Mississippi Supreme Court
• Parties: MADDOX v. STATE

163 So. 449

173 Miss. 799

MADDOX v. STATE

No. 31831

Supreme Court of Mississippi

October 7, 1935

Suggestion Of Error Overruled November 11, 1935.

(In Banc.)

1 HOMICIDE.

In prosecution for murder of divorced husband of defendant's sister, who was living in deceased's home prior to killing and was leaving deceased's home in response to defendant's order when killing occurred, whether defendant was guilty of murder or manslaughter held for jury as against contention that killing occurred while defendant was attempting to prevent continuance of adultery between his sister and deceased and was therefore guilty of manslaughter only (Code 1930, section 995).

2 HOMICIDE.

Refusing motion for new trial in murder prosecution on affidavit of witness that state's witness was pursuing defendant as defendant pursued deceased, and that affiant had heard state's witness and deceased threaten life of defendant, held not error, where affidavit was cumulative only and tended to impeach state's witness.

3. WITNESSES.

In murder prosecution, admitting testimony of physician, who attended deceased, with reference to nature and effects of wound found upon body of deceased, held not reversible error. (Code 1930, sction 1536).

HON. R. E. BENNETT, Judge.

APPEAL from circuit of Adams county HON. R. E. BENNETT, Judge.

Thomas Maddox was convicted of murder, and he appeals. Affirmed.

Affirmed.

L. C. Gwin and O. M. Hornsby, both of Natchez, for appellant.

The court erred in admitting, over objection of appellant, testimony of the witness Dr. C. A. Everett.

McCaw et al. v. Turner et al., 88 So. 705.

This court has said that the language of the statute, section 1536, Code of 1930, is clear and unambiguous and that its manifest purpose is to protect a patient both before and after death from disclosures that might be made by his physician; to distinguish between that testimony which is offered in a civil case and that which is offered in a criminal case, defeats that manifest purpose.

If the construction placed on the statute in McCaw v. Turner, is the correct construction then, in our opinion, it is the duty of the attorneys appearing in a case to object to such testimony when offered in furtherance of the public policy of the state as announced by the statute.

United States Fidelity & Guaranty Co. v. Hood, 87 So. 115; State v. Traylor, 56 So. 521, dissenting opinion; State v. Rawles, 60 So. 782.

The court erred in refusing appellant's instruction peremptorily instructing the jury that they could convict of no greater crime than manslaughter.

Adultery is made a crime by section 772 of the Code of 1930, thus appellant, by the undisputed testimony, went to the house of Lawrence Neece to resist the commission of an unlawful act within the meaning of section 995.

Williams v. State, 84 So. 9.

It is appellant's contention that even had the attempt to commit the unlawful act, which appellant was resisting, had been abandoned, then this case is still within section 995, Code of 1930.

Long v. State, 52 Miss. 23, 40; Williams v. State, 90 So. 705, 127 Miss. 851; Burgman v. State, 133 So. 208; William v. State, 120 Miss. 604, 82 So. 318; Fletcher v. State, 129 Miss. 207, 91 So. 338.

The verdict is against the overwhelming weight of the evidence.

McCrory v. State, 25 So. 671; McNeil v. State, 76 So. 625, 115 Miss. 678; Waller v. State, 44 So. 825, 91 Miss. 557; Godwin v. State, 19 So. 712, 73 Miss. 873; Johnston v. State, 30 So. 39, 79 Miss. 42.

Appellant recognizes the rule that newly discovered evidence where merely cumulative or going to impeach a witness is no ground for a new trial, but respectfully submits that the testimony of the witness Ruby Lee O'Neal was material to appellant's case and would probably have resulted in a different verdict.

Campbell v. State, 86 So. 513.

W. D. Conn, Jr., assistant attorney-general, for the state.

Section 1536 provides that "all communications made to a physician or surgeon by a patient under his charge, or by one seeking professional advice, are hereby declared to be privileged and such physician or surgeon shall not be required to disclose the same in any legal proceeding except at the instance of the patient."

The statute does not apply in criminal prosecutions as between the deceased and his physician.

Davenport v. State, 143 Miss. 121, 108 So. 433.

The defendant was not resisting any unlawful act, but was the aggressor from start to finish and under the state's testimony killed the deceased at a time when the deceased was making every effort to make his escape from the murderous assault of the defendant.

In the light of the testimony given by the witnesses for the state, we submit that not only is the verdict of the jury not against the great weight of the evidence, but is sustained by it and was the only verdict which a jury, fully conscious of its duties, should have returned.

The bare fact that the witness, Shea, ran up the hill in the direction taken by the principals to this homicide would throw absolutely no light upon the degree of the crime committed by the defendant. When the affidavit is stripped of all inferences and appearances, there is no fact which would throw any new light upon the homicide in question. The court properly overruled the motion for a new trial.

OPINION

McGowen, J.

Appellant was tried and convicted in the circuit court of Adams county on an indictment charging him with the murder of Lawrence Neece and was sentenced to be hanged. From that judgment he appeals here.

The facts necessary to state are that appellant's sister Florida, married Neece and to them a child was born, which at the time of the killing was about two years old. Later she secured a divorce from Neece and married Matthieson, but a short time before this homicide occurred she had returned to Neece, without a divorce from Matthieson, and was living in his home in that section of Natchez known as "under the hill." One witness testified that on the evening before the homicide appellant was seen oiling his gun and heard to make a threat that he would get Neece. On the morning of the homicide Shea was at the home of Neece and Florida was also there. The appellant went to the home of Neece and had a conversation with him. Shea testified that he heard Neece tell the appellant, "You are not going to hit her where I am," and that the appellant drew his gun and said to his sister, Florida, that he would give her three minutes to get her things and get up the river bank; that Neece got his gun and asked Florida if she wanted him to go with her. They left the house going north up the river, toward appellant's house; they were in single file with Florida in the lead, Lawrence Neece immediately behind her, then the appellant, and then the witness Shea. Florida had the child it her arms when they left but handed it to Neece. After they had proceeded a short distance, Neece gave the baby back to Florida and a combat ensued between appellant and the deceased. The first blow seen by any state witness was apparently struck by the appellant. The appellant drew his gun, Neece thereupon hit him and knocked him off his balance, and he stumbled and...