Marley v. State

• Decision Date: 19 July 1915
• Docket Number: 17994
• Citation: Marley v. State, 109 Miss. 717, 69 So. 210 (Miss. 1915)
• Court: Mississippi Supreme Court
• Parties: MARLEY v. STATE

69 So. 210

109 Miss. 717

MARLEY v. STATE

No. 17994

Supreme Court of Mississippi

July 19, 1915

APPEAL from the circuit court of Tallahatchie county. HON. E. D DINKINS, Judge.

E. J Marley was convicted of murder and appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed, and case remanded.

Cutrer & Johnston, A. H. Stephen and Rowe Hays, for appellant.

Geo. H Ethridge, Assistant Attorney-General, and R. N. Miller, for the state.

OPINION

LYELL, Special Judge.

The appellant was indicted at the January term, 1914, of the circuit court of Tallahatchie county, upon a charge of murder. Upon his trial he was convicted of murder and sentenced to life imprisonment. The indictment and conviction were for the killing of one T. Y. Wylie on March 15, 1913, in the town of Sumner, Tallahatchie county, Miss. The homicide occurred at a drug store in said town on Saturday afternoon, where said Wylie was standing on the inside at the time that the defendant and one Zack Denton together entered the said drug store. The shooting began at the time Denton and Marley entered the front door of the drug store. Denton received only one, but a fatal, wound from Wylie's pistol, and ran out of the drug store, and expired in a few minutes on the walk in front of same. Marley ran from the drug store while the shooting was in progress, but after it had begun, and was not wounded. There were twelve or thirteen bullet holes, exits and entrances together, in Wylie's body. Wylie lived about thirty minutes after he was shot, and expired on the operating table in a physician's office in the rear of the drug store where he was taken after the shooting. The evidence discloses that Wylie had emptied his pistol containing six cartridges, and Denton emptied his pistol containing the same number.

The appellant did not testify. His counsel contend that he did not participate in the shooting. It appears that he was armed with a pistol at the time of the homicide, and there was evidence indicating that he participated in the shooting. The evidence disclosed that bad feeling existed between Wylie, on the one hand, and the appellant and Denton, on the other, and that Wylie had threatened them, and that Marley had threatened Wylie. So far as Marley is concerned, this feeling appears to have grown out of the alleged fact that Wylie had run laborers off the Smith Murphy estate, which had been under the management of appellant for two or three years. This estate owned and operated a plantation commissary in the town of Sumner, and Wylie had formerly been employed by said estate, but had been discharged by Marley some time before the homicide. One Pope was a bookkeeper at the commissary, and one Ferguson was another employee. Zack Denton was employed by the same estate.

A few minutes before the homicide there was a difficulty, or near difficulty, between Wylie and Pope and Ferguson in the street near the drug store. Evidence as to the details of this difficulty was, over the objection of appellant, permitted by the court to be considered by the jury. Though Marley was the only one indicted for the homicide, it is argued by counsel for the state that there was a conspiracy between appellant and Pope and Ferguson and Denton to kill Wylie, and that after the difficulty in the street between Wylie and Pope and Ferguson the two latter went to the commissary where Marley and Denton were at the time, and from which Marley and Denton emerged in a few minutes and walked rapidly up the street from the commissary, which was situated on the northwest corner of the courthouse square, in the town of Sumner, to the northeast corner of the square to the drug store where Wylie was at the time, and where the homicide immediately occurred.

The court admitted the dying declaration of Wylie as detailed by his wife and by one L. L. Jones, a deputy sheriff. A witness for appellant, one F. L. Sumner, also testified to the dying declaration of Wylie.

There are many assignments of error which we do not deem it necessary to consider in view of what is hereinafter decided. We hold that the presiding judge was not disqualified to try appellant.

The assignment of error as to the alleged invalidity of the indictment is not well taken. The point was not raised in the lower court. Hays v. State, 96 Miss. 153, 50 So. 557.

It is assigned as error that the court erroneously admitted the dying declaration of the deceased. Proper objection was not reserved in the lower court to the admissibility of this evidence upon the ground relied upon in this court for reversal. It is here contended for the first time that the declaration was inadmissible for the reason that the evidence disclosed that the declarant was actuated by malice, ill will, and a spirit of revenge toward defendant, and the Reeves Case, 106 Miss. 885, 64 So. 836, is relied upon as requiring the exclusion of the dying declaration altogether from the jury. In the Reeves Case, however, it will be noted that the dying declaration was specifically objected to in the lower court upon the grounds mentioned.

The testimony of Mrs. Wylie as to the dying declaration was not objected to by appellant. A general objection only was made to the testimony of the deputy sheriff, L. L. Johnson, the other witness for the state who testified to the dying declaration. After the state rested, appellant moved the court to exclude such parts of the testimony of Mrs. Wylie as dealt with declarant's statement as to what he desired done with his life insurance, the schooling of his children, and his private affairs, and other parts upon the further ground that the dying declaration was a statement of a conclusion and not a statement of facts. The statement specifically objected to was: "Marley killed me."

The court sustained the objection to the statements with reference to his private affairs, the schooling of his children, his insurance, etc., but admitted the statement: "Marley killed me." That statement was manifestly a statement of a fact, and not of an opinion. The dying declaration must be restricted to the act of killing and the circumstances immediately attending the act which form a part of the res gestae.

The appellant introduced a witness, F. L. Sumner, who was present at the time of the dying declaration of the deceased. After the state and defendant finally rested, the appellant moved to exclude all the testimony as to the difficulty between the deceased and Pope and Ferguson prior to the homicide, and also testimony of Mrs. Wylie, and also the testimony of each and every witness as to any purported dying declaration. This motion was overruled by the court, and the record does not show that any exception was reserved to such ruling. It is true that specific objection had been interposed to all evidence relating to the difficulty in the street prior to the homicide, on the ground that Marley was not shown to be connected with...