Magee v. State

Decision Date06 December 1926
Docket Number26158
Citation110 So. 500,145 Miss. 227
CourtMississippi Supreme Court
PartiesMAGEE v. STATE. [*]

Division B

. (Division B.)

1. HOMICIDE. Where witness lays predicate for dying declaration out of jury's presence, testimony by other witnesses as to such statement is admissible.

Where a witness is introduced to lay the predicate of the dying declaration, and testifies that deceased was in a dying condition and fully realized his condition; and had given up all hope of recovery, and had made a statement, without said witness disclosing what the statement was, not being asked with reference thereto by either party, and other witnesses testified as to such statement, the evidence is admissible the preliminary examination having been out of the hearing of the jury, and the defendant having had opportunity to interrogate such witness with reference thereto.

2. HOMICIDE. Where state relies on dying declaration, showing illicit relations between defendant, deceased's wife, and another man is permissible.

In a prosecution for murder, where the state must rely upon the dying declaration and the circumstances, it is permissible to show the illicit relations between defendant, wife of the deceased, and a third person, and to show that there had been violent quarrels and threats, prior to said killing, growing out of such illicit relations.

3. CRIMINAL LAW. Where instructions fully announced law as to what constitutes offense, referring to indictment to show elements of offense was not reversible error.

While it is improper, in a criminal case, to refer to the indictment as to the manner and form of the killing, to show the elements thereof, it is not reversible error where the law is fully announced as to what constitutes the crime in the other instructions.

4 HOMICIDE. Instruction as to right to take life of larger and stronger assaitant must show defendant reasonably apprehended death or great bodily harm.

While, in a proper case, a person may take the life of an assailant, who is much larger and stronger than the accused, and able to inflict death or great bodily harm by means of fist and feet, an instruction with reference thereto must contain proper hypotheses, and must show that the defendant reasonably apprehended such death or great bodily harm as a consequence of the assault.

5. CRIMINAL LAW. Cry of deceased immediately after shots was admissible as res gestae.

In a prosecution for murder, where there was no eyewitness, and where the attention of others was attracted to the killing by the shots, followed by the outcry of the person shot, "Somebody come here; my wife killed me," such outcry is part of the res gestae, and admissible as part thereof.

HON. W. L. CRANFORD, Judge.

APPEAL from circuit court of Simpson county, HON. W. L. CRANFORD, Judge.

Pendora Magee was convicted of murder, and she appeals. Affirmed.

Judgment affirmed.

J. P. and A. M. Edwards, for appellant.

I. The testimony shows beyond any doubt whatever that the deceased brought on the difficulty in which he lost his life. The defendant testified in her own behalf and said that the deceased came in the house cursing and abusing her, told her that he was going to kill her, struck her with his fist, and made for a pistol that he had placed under the head of his bed the night before, but that she got the pistol first and began backing towards the door of the house and firing the pistol as fast as she could. She said that she knew that if he got his hands on the pistol, he would kill her, and that she shot to save her own life. The homicide was committed by the defendant under apprehension reasonably entertained by her that her life was in imminent danger at the hands of the deceased at the time she fired the fatal shot. Long v. State, 52 Miss. 23; Cannon v. State, 57 Miss. 147; Cotton v. State, 31 Miss. 504, 1 Mor. St. Cas. 915; Head v. State, 44 Miss. 731, 2 Mor. St. Cas. 1700.

II. The court committed grave error in admitting the dying declarations of the deceased. The proper predicate for the admission of the dying declaration was not laid in this case. The declarations of the deceased made by him should have been testified to by Dr. White in laying the predicate for the introduction of the dying declarations so that the court might ascertain whether they were admissible in evidence. Owen v. State, 59 Miss. 549; Nelms v. State, 13 S. & M. 500, 1 Mor. St. Cas. 509, 53 Am. Dec. 94n; Merrill v. State, 58 Miss. 65; Ashley v. State, 37 So. 960.

III. We submit that the instruction for the state is erroneous, for the reason that it is unsupported by the proved facts in the case. There was no eye-witness to the homicide except the defendant and she testified in her own behalf, and made a detailed statement as to how the homicide occurred, which according to her own testimony was justifiable in order to save her own life, or suffering some great bodily harm at the hands of the deceased. We submit that her statement is reasonable, and that it is uncontradicted by any competent evidence.

IV. The court below committed grave error in refusing to grant the instruction asked for by the defendant. The testimony shows that the deceased was a much larger and stronger person than the defendant, so much so that the defendant was wholly incapable of coping with him in a physical combat, and that she was liable to receive serious and great bodily injuries at the hands of the deceased. It also shows that deceased was a negro man, six feet, two inches tall, weight about one hundred eighty pounds, strong, healthy and heavy muscled; and that the defendant is a negro woman not very strong, weight about one hundred fifty pounds. Hill v. State, 97 Miss. 304, 49 So. 145.

V. Dora Simmons, witness for the state testified to the following:

"Q. What did he say? A. He said, 'O Lord, come here somebody, my wife has done killed me.'

"Q. Did either one have a gun or weapon of any kind when you first saw them? A. When I got over there she had hold of the handle of the gun and he had hold of the barrel, and he said, 'Come here somebody, my wife has done shot me.'"

The court committed grave error in admitting this testimony in evidence over the objections of the defendant, for the reason it is irrelevant, incompetent and prejudicial to rights of defendant. Haney v. State, 92 So. 627; Myers v. State, 64 Miss. 333, 1 So. 735.

The judgment of the lower court should be reversed.

Rufus Creekmore, Special Assistant Attorney-General, for the state.

I. The sufficiency of the evidence: Counsel first argue that the evidence is insufficient to support the jury verdict of guilty. They say that the testimony conclusively shows that the defendant acted in self-defense and, therefore, that there is no evidence on which the verdict can stand. This statement is only qualifiedly true. The testimony of the defendant herself did show a case of self-defense, but the testimony of the state's witnesses showed the killing to have been unjustifiable and without cause. There was here presented a clear-cut question of fact, which question has been decided in favor of the state and against the defendant.

II. The dying declaration. Testimony shows beyond all question that the dying declaration was given under the sanctity and with a sense of impending death. McNeil v. State, 115 Miss. 678, 76 So. 625; Ely v. State, 128 Miss. 715, 91 So. 417; Jones v. State, 130 Miss. 703, 94 So. 851; Woollard v. State, 137 Miss. 808, 102 So. 781.

III. Counsel objects to the action of the court in refusing the instruction requested by the defendant on page 22 of the record. This instruction is erroneous because it ignores the fundamental principle of the plea of self-defense. It ignores the fact that before the defendant is justified in taking human life he must believe himself to be in danger of receiving some bodily injury or to be in danger of death at the hands of the deceased. The mere fact that there was a disparity in size and that the defendant was liable to receive injury in the event they became engaged in combat is not sufficient, but he must actually believe that he will receive such injuries or bodily harm at the hands of the deceased.

Then, too, the defendant has received instructions which correctly state to the jury the law with reference to the rights of the defendant to take life when in danger, either real or apparent, of suffering death or great bodily harm at the hands of the deceased.

IV. Statements made by decedent at the time of the shooting. If made simultaneously with the time of the firing of the shots, there can be no question but that they are admissible as part of the res gestae. If made a short time later, then they become admissible as a part of the dying declaration made by the defendant.

The only question at issue in this case, however, is whether or not she acted in self-defense; the fact that she did kill him is undisputed. Clearly, she could have been prejudiced in no way by the admission of this testimony whether it was admitted correctly or erroneously.

The judgment should be affirmed.

Argued orally by A. M. Edwards, for appellant, and Rufus Creekmore, Special Assistant Attorney General, for the state.

OPINION

ETHRIDGE, J.

The appellant, Pendora Magee, was indicted and convicted for the murder of Jesse Magee. The parties, at the time, were working at the camp of, and for, the Great Southern Lumber Company in Simpson county. Jesse and Pendora had married some years before in Jackson, Miss., but each, at the time of said pretended marriage, had living an undivorced spouse. They had had some domestic troubles growing out of appellant's relation's with one Earl Williams, and, on account thereof, Jesse Magee had threatened the life of the...

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12 cases
  • Dean v. State
    • United States
    • United States State Supreme Court of Mississippi
    • 27 Mayo 1935
    ...Hale v. State, 72 Miss. 140, 16 So. 387; Brown v. State, 88 Miss. 166, 40 So. 727; Bell v. State, 55 Miss. 192, 5 So. 389; Magee v. State, 145 Miss. 227, 110 So. 500; C. J., page 268, sec. 507; Wade v. State, 147 Miss. 479, 112 So. 677; Muse v. State, 158 Miss. 449, 130 So. 693; Scott v. St......
  • Dean v. State
    • United States
    • United States State Supreme Court of Mississippi
    • 8 Abril 1935
    ...... State, 83 Miss. 402. 35 So. 572. . . The. court cannot control the order of proof. . . Carlisle. v. State, 73 Miss. 387, 19 So. 247; Hale v. State, 72 Miss. 140, 16 So. 387; Brown v. State, 88 Miss. 166, 40 So. 727;. Bell v. State, 55 Miss. 192, 5 So. 389; Magee v. State, 145. Miss. 227, 110 So. 500; 30 C. J., page 268, sec. 507; Wade v. State, 147 Miss. 479. 112 So. 677; Muse v. State, 158 Miss. 449, 130 So. 693; Scott v. State, 166 Miss. 6, 148 So. 239;. Wilkerson v. State, 134 Miss. 853, 98 So. 770; Goins v. State, 155 Miss. 662, 124 So. 785. . ......
  • Smith v. State
    • United States
    • United States State Supreme Court of Mississippi
    • 12 Noviembre 1931
    ...... declaration in evidence to show that such declarations was. made under a sense of death. . . Underhill's. Criminal Evidence (3 Ed.), sec. 171; Hathorn v. State, 138 Miss. 11, 102 So. 771; Wilkerson v. State, 143 Miss. 324, 108 So. 711; Magee v. State, 145. Miss. 227, 110 So. 500. . . The. giving of the instruction for the state virtually saying to. the jury that ordinarily a defendant is presumed to be. innocent, but that "Yet the court now says to you,". that this presumption of innocence which the law throws. around ......
  • Walton v. State
    • United States
    • United States State Supreme Court of Mississippi
    • 10 Febrero 1930
    ...State, 79 Miss. 309, 30 So. 759; Jackson v. State, 94 Miss. 83, 47 So. 502; Wilkerson v. State, 134 Miss. 853, 98 So. 770; Magee v. State, 145 Miss. 229, 110 So. 500; Snell v. State, 109 Miss. 744, 69 So. 593; Wade State, 147 Miss. 479, 112 So. 677. Testimony as to conduct and appearance, t......
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