Mayes v. State

• Decision Date: 07 February 1887
• Citation: 64 Miss. 329,1 So. 733
• Court: Mississippi Supreme Court
• Parties: SID MAYES v. THE STATE

1 So. 733

64 Miss. 329

SID MAYES v. THE STATE

Supreme Court of Mississippi

February 7, 1887

APPEAL from the Circuit Court of La Fayette County, Hon. W. S FEATHERSTON, Judge.

The case is stated in the opinion of the court.

Judgment reversed.

W. V Sullivan, for the appellant.

The testimony of Henry Wortham should not have been admitted as part of res gestoe, because from his own statement it appears that the alleged conversation was some five minutes after the difficulty occurred, some distance away from the place, and after he (deceased) had been engaged in conversation with others.

T. M Miller, Attorney General, for the State.

In answer to the assignment of error touching the testimony of Wortham, it will be sufficient to call attention to the reason given by the learned judge to the effect that the time was so short that the idea of a concocted story is entirely negatived. It was a statement in the nature of an exclamation--strictly reg gestoe.

OPINION

COOPER, C. J.

The appellant has been convicted of the murder of one Albert Lester, and assigns many errors in the proceedings in the court below. We deem it unnecessary to consider the many assignments, many of which are without the semblance of merit, since the judgment must be reversed on the point hereinafter indicated.

The homicide occurred at a social meeting, which had been protracted through the night, during which time many of those present had indulged in the excessive use of intoxicating liquor, a number of fights resulted, and among these was one between the deceased and one Kirkwood. According to the testimony of the witnesses for the State, it appears that while Kirkwood and deceased were fighting the appellant ran in between them, threw his arm around deceased, and cut him with a knife across the stomach, inflicting the wound from which death resulted. On the other hand, the testimony of other eye-witnesses who testified on behalf of the appellant is that he did not inflict any wound on deceased but only separated him and Kirkwood and that Kirkwood gave the mortal blow. The dying declaration of the deceased, made several days after the injury, was admitted in evidence, and by it it appears that the appellant was the guilty agent. But testimony tending to impeach the credibility of this dying declaration was introduced by the appellant. The court below, over the objections of the defendant, permitted a witness (Henry Wortham) to testify to a statement made by deceased under these circumstances. When deceased was cut he immediately turned and ran a distance of from one hundred to one hundred and ten yards (pursued a part of the way by the appellant, who repeatedly snapped a pistol at him but who turned back before deceased ceased running) and then turned into the woods and lay down. The witness, Wortham, walked up in the direction in which deceased had gone, and when he had gone a part of the distance he heard one Lynch call out to him, saying: "Here is Albert out in the woods with his guts cut out;" the witness then went to where deceased was lying, and before getting there he heard him and Lynch engaged in conversation. Witness reached deceased as nearly as he could fix the time in about five minutes after the wound had been given, and when he came up deceased sad to him: "Henry, Sid (the appellant) has cut my guts out; did you see him?"

Upon objection to this testimony being made, the learned judge ruled that the statement of the injured party was so recently made after the wound had been given that it was a part of the res gestae, saying that he did not think sufficient time had elapsed to warrant the suspicion of fabrication.

An examination of the approved text-writers, and of the decisions to which they refer, discloses, especially in the decisions of American courts, a somewhat loose regard for well-recognized rules governing the admissibility of evidence. That hearsay testimony cannot be given is universally admitted by the courts which have from time to time been called upon to determine whether statements of this character are competent, and they have, without exception, declared that when the statement assumes the character of a narrative of a past transaction it is incompetent. But in many cases what were manifestly completed and finished acts have been by a sort of construction treated as incomplete and unfinished, and the statement thus held to be a verbal act incorporated with and a part of the thing being done.

In Thompson and Wife v. Trevanion, Skinner 402, Lord Chief Justice Holt "allowed what the wife said immediately upon the hurt received, and before she had the time to contrive or devise anything for her own advantage," to be given in evidence. In The King v. Foster the witness had seen a cab drive by at a very rapid rate, but did not see the accident but "immediately after heard the deceased groan, and went to where he was lying." It was then...