McCaffrey v. State

• Decision Date: 10 April 1939
• Docket Number: 33504
• Citation: 187 So. 740,185 Miss. 659
• Court: Mississippi Supreme Court
• Parties: MCCAFFREY v. STATE

187 So. 740

185 Miss. 659

MCCAFFREY v. STATE

No. 33504

Supreme Court of Mississippi, Division B

April 10, 1939

Suggestion Of Error Overruled June 5, 1939.

APPEAL from the circuit court of Lincoln county HON. J. F. GUYNES Judge.

Nick McCaffrey was convicted of manslaughter, and he appeals. Affirmed.

Affirmed.

E. C Barlow and Edward L. Womack, both of Brookhaven, for appellant.

The court erred in admitting the testimony of J. B. McGhee, and Albert Zachary, relative to a charge that had been made against appellant, in the justice of peace court, charging him with grand larceny long prior to the alleged homicide. The state offered this testimony, or evidence, and it was permitted over the objection of appellant, presumely for the purpose of showing motive, but it could have no connection with the alleged homicide. It is inconceivable that a prosecution which terminates favorably to the appellant and in which the testimony complained of shows that the deceased took no great part, could furnish the animus sufficient to withdraw and to impel appellant to feloniously kill the deceased several months later, especially in view of the fact that the record shows that one of the attorneys here representing the appellant and the same attorney who was first called into this case and represented appellant all the way through was the attorney who was employed to prosecute this appellant in the grand larceny case in the justice of peace court. There is certainly no ill feeling between the appellant and this attorney when, although the attorney prosecuting in that case was the one which appellant turned first to when he found himself charged with this crime. There was no more reason why Mr. Moak's activity in the grand larceny case would furnish a motive for Nick McCaffery to kill him than there was while Mr. Barlow's activity in the same case would furnish the same sinister motive, and the record also shows that on the day when the grand larceny case came on for a hearing the defendant and the deceased ate dinner together. The record also shows that the defendant voted for the deceased against the defendant's own brother-in-law in the last election for constable. The only motive that this testimony shows is the sinister motive, to the state by the district attorney and the hired prosecutor to prejudice the jury against this defendant, and prevent his having a fair and impartial trial, by introducing this evidence that the appellant had been formerly charged with a felony. This was clearly a violation of numerous holdings of this court.

Whitlock v. State, 6 So. 237; Brown v. State, 17 So. 278, 72 Miss. 997; Benoit v. State, 60 So. 137, 107 Miss 218; Collins v. State, 64 So. 373, 106 Miss. 613; Baygents v. State, 110 So. 114, 144 Miss. 442; McLain v. State, 116 So. 533, 150 Miss. 159; Willoughby v. State, 122 So. 757, 154 Miss. 653, 53 A. L. R. 1319; Floyd v. State, 148 So. 226, 166 Miss. 15; Morris v. State, 16 Miss. 762; Slayslon v. State, 58 So. 977, 102 Miss. 101; Dedeaux v. State, 87 So. 664, 125 Miss. 326; Jearney v. State, 8 So. 292, 68 Miss. 233.

The evidence in this case is insufficient to support a verdict finding the defendant guilty of manslaughter.

Testimony of the doctor after his findings of the autopsy was admitted by the court over the objection of the appellant showed that the autopsy was performed several months after the death of the deceased, and after the body had become decomposed to a large extent, and was performed upon the body not shown to have been that of R. E. or Ed Moak. It is apparent from the doctor's entire testimony on both direct and cross-examination that he gave one opinion as to the cause of death at the habeas corpus hearing, and another and different opinion at the trial before the jury, neither opinion showing that any felonious act was done by this appellant. But on the contrary Dr. Arrington testified on cross-examination that a man of the type of R. E. (Ed) Moak should merely get mad, that might be sufficient to produce a cerebral hemorrhage and cause death. The doctor testified positively at the trial before the jury that there was no fracture of the skull, that R. E. Moak died as a result of a cerebral hemorrhage, that a man of the weight, build, age, complexion, and habits of R. E. Moak could have died from this cause without there having been any fight and without his having been struck by this appellant.

The testimony of the other witness for the state merely shows that this appellant and the deceased were engaged in a sudden combat with no weapons used, without any undue advantage being taken, and there is no proof that appellant struck the deceased with anything other than his hands.

Herring v. State, 84 So. 699, 122 Miss. 647.

In the application of circumstantial evidence to the determination of a case, the utmost caution and vigilance should be sued.

Algheri v. State, 25 Miss. 584.

The court erred in overruling appellant's motion for a directed verdict of acquittal at the close of the state's testimony because the state had utterly failed to prove that the deceased came to his death as a result of any felonious act or procurement of the appellant, but the state's own testimony at that time showed beyond a reasonable doubt that he was not guilty of either manslaughter or murder, but showed that if deceased came to his death as a result of an encounter of appellant it was an excusable homicide only, within the definition of subsection C of section 989 of Mississippi Code of 1930, and the appellant was then and there entitled to a directed verdict in his favor as there was no evidence of a felonious homicide to be submitted to the jury.

We submit that the court erred in permitting the witness Bailey Parsons to testify over the objection of the appellant that some days previous to the alleged homicide he, the witness, had seen in appellant's truck a tire tool and a hammer. There is no testimony to show that such implements were in the truck on the day of the difficulty and there is no testimony that the deceased met his death as a result of being struck with a hammer or a tire tool, and such testimony was calculated to, and did, prejudice the jury against this appellant.

We submit to the court that the court below erred in permitting the witness S. B. Spencer to testify from the mayor's docket of the Town of Bogue Chitto, as to offenses charged against the appellant for other crimes and misdemeanors which he had pleaded guilty and paid a fine. This testimony was highly improper for the reason that this appellant was on trial for the crime of murder and the offenses testified to by the witness S. B. Spencer all occurred long before the alleged homicide and had no connection therewith and were not competent to show motive, or for any other purpose. They were not proper to be introduced against this appellant for the record shows that this appellant did not deny having been previously convicted of these misdemeanors according to the rule as laid down by this court in the case of Collier v. State, 106 Miss. 613, 64 So. 373.

The general rule is that the evidence must be confined to the issue, and that on the trial of a person for a particular offense the state cannot aid the proof against him by showing that he committed other offenses.

Whitlock v. State, 6 So. 237.

We are convinced that the court should have granted the appellant's motion for a directed verdict of acquittal at the close of the entire case for, taking the record by the four corners and reviewing it as a whole, there is nothing in the case to warrant a jury in convicting the appellant of the crime of manslaughter; other than the appellant's own testimony there is no testimony showing or tending to show who was the aggressor in the difficulty, no testimony showing or tending to show the details of the fight, who provoked the difficulty or anything else connected with the encounter.

Godwin v. State, 13 So. 112; Johnson v. State, 30 So. 39; Leverett v. State, 73 So. 273, 112 Miss. 394; White v. State, 71 So. 425; Huston v. State, 117 Miss. 311, 78 So. 182; Weathersby v. State, 165 Miss. 207, 147 So. 481; McCrory v. State, 25 So. 671; Kelly v. State, 147 So. 487; Henderson v. State, 180 So. 89; Smith v. State, 23 So. 260, 75 Miss. 452; Patterson v. State, 23 So. 647; Lucus v. State, 67 So. 861, 109 Miss. 82; Blalock v. State, 31 So. 105, 39 Miss. 517; Hill v. State, 49 So. 145; Clark v. State, 35 So. 188; Waller v. State, 44 So. 845; McNeil v. State, 76 So. 765.

We submit that this case should be reversed and this appellant discharged, and we further submit that the jury who tried the case certainly felt the weakness of this case when they reported a verdict of "We the jury find the defendant guilty of manslaughter and especially ask the mercy of the court, " and certainly the jury did not expect or neither intended that this appellant would be sentenced to seventeen years in the state penitentiary as the result of that verdict. But in view of the verdict of the jury and the seventeen year sentence, we think and submit that the sentence was in keeping with the state's attitude throughout the trial, and is shown in the motion for a new trial.

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

When the appellant was arrested and first questioned he stated that the origin of the difficulty grew out of a prosecution against him for stealing an automobile, in which prosecution the deceased, Ed Moak, was very active. It is said that the court erred in allowing the justice of the peace, McGehee and the witness Albert Zachary to testify that an affidavit had been made in the court of the justice of the peace charging appellant with the crime of grand larceny. At the time this testimony was offered the...