Micker v. State

• Decision Date: 29 January 1934
• Docket Number: 30847
• Citation: 168 Miss. 692,152 So. 286
• Court: Mississippi Supreme Court
• Parties: MICKER v. STATE

152 So. 286

168 Miss. 692

MICKER v. STATE

No. 30847

Supreme Court of Mississippi

January 29, 1934

Division A

1. CRIMINAL LAW.

Testimony given at preliminary hearing at which defendant was present could not be relied on motion for new trial as newly discovered evidence.

2. CRIMINAL LAW.

Reviewing court must presume that defendant seeking new trial trial for testimony given at preliminary hearing was present at hearing.

3. CRIMINAL LAW.

Defendant who failed to obtain information at trial as to testimony of witness given at preliminary hearing held not to have exercised due diligence requisite for granting of new trial for newly discovered evidence, where brief transcript of witness' testimony was available at trial and witness was then cross-examined.

4 HOMICIDE.

Evidence held sufficient to sustain conviction for murder.

5. CRIMINAL LAW.

Instruction based upon theory that defendant's witnesses were sole eyewitnesses to homicide held properly rejected, where state offered an eyewitness.

6. CRIMINAL LAW.

Instruction to jury to accept reasonable hypothesis consistent with innocence, though hypothesis of guilt was more probable, held properly refused, where state relied principally on testimony of eyewitness.

HON. E L. BRIEN, Judge.

APPEAL from circuit court of Warren county, HON. E. L. BRIEN, Judge.

Hersey Micker, alias James Johnson, was convicted of murder, and he appeals. Affirmed.

Affirmed.

P. C. Canizaro, and G. L. Larr, Jr., both of Vicksburg, for appellant.

The weight of authority seems to be in favor of granting a new trial where the newly discovered evidence goes to show that the verdict was based on mistake or perjury; so that because of this, the case has never been tried on its merits and therefore the defendant did not receive the benefit of a fair trial.

Powell v. Com., 33 A. L. R. 553, note; Pettine v. New Mexico, 119 C. C. A. 581, 201 F. 489; Bussey v. State, 69 Ark. 545, 64 S.W. 268; State v. Washington, 108 La. 226, 32 So. 396; State v. Myers, 191 N.W. 597; State v. Moberly, 26 S.W. 364; People v. Fridy, 31 N.Y.S. 399; State v. Powell, 98 P. 741; Buckner v. State, 32 So. 920, 81 Miss. 140; Watson v. State, 50 So. 627, 96 Miss. 369; Middleton v. State, 113 So. 625, 22 Ala.App. 146; Inman v. State, 115 So. 704, 22 Ala.App. 344; State v. Glover, 73 So. 843, 140 La. 726; Barrentine v. State, 51 So. 275; 16 C. J. 1205.

The evidence is not sufficient to warrant a conviction.

Taking the state's evidence in this case as being true, we submit that the killing was not a deliberate, malicious, and willful killing such as to come within the above definition, and that the only crime the appellant could possibly be guilty of, would be manslaughter only.

The court erred in refusing the appellant the following instruction: "The court instructs the jury that where two reasonable hypothesis arise from and are supported by the evidence in this case, one consistent with the defendant's innocence, it is your duty to adopt the one consistent with innocence, although the other be the more probable."

Weathersby v. State, 147 So. 481; Thompson v. State, 35 So. 689.

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

The motion for a new trial was accompanied by the affidavits of counsel for defendant, but is not supported by the affidavit of the defendant himself. This, or sworn testimony to the same effect, is necessary, or else this court will hold that the trial court committed no error in overruling the motion.

Grady v. State, 158 Miss. 134, 137 So. 117; Salmon v. State, 151 Miss. 539, 118 So. 610; Queen v. State, 152 Miss. 723, 120 So. 838; Lipscomb v. State, 76 Miss. 223, 25 So. 158; Brown v. State, 60 Miss. 447; Harris v. State, 61 Miss. 304; Long v. State, 163 Miss. 535, 141 So. 591; Hilbun v. State, 148 So. 365.

This is not newly discovered evidence. This defendant was present at this preliminary hearing and heard these witnesses testify and he cannot now be heard to say that the testimony given at that time is newly discovered evidence, so far as he is concerned.

Grady v. State, 158 Miss. 134, 137 So. 117.

The details surrounding this homicide are related by eyewitnesses. No circumstantial evidence is relied on to sustain the conviction. In this state of case the instruction which was requested is inapplicable here,--this court having heretofore held that it is only proper to give this instruction in cases where circumstantial evidence is relied on to sustain the conviction.

Williams v. State, 163 Miss. 475, 142 So. 471; Irving v. State, 100 Miss. 208, 56 So. 377; Smith v. State, 101 Miss. 283, 57 So. 913; Simmons v. State, 106 Miss. 732, 64 So. 721; Hogan v. State, 127 Miss. 407, 90 So. 99.

OPINION

Cook, J.

The appellant was convicted in the circuit court of Warren county on a charge of murder, and was sentenced to the state penitentiary for life; and from this conviction and sentence he prosecuted this appeal.

The testimony offered by the state and by the appellant was sharply conflicting. One of the witnesses introduced by the state testified that he came upon the appellant and the deceased, Jeanette Nelson, in the public road where the killing occurred; that as he approached them, and when he was about twenty yards from them, he heard the appellant curse the deceased; that when he was within about twenty feet he saw the appellant strike the woman and knock her down; that when he struck the deceased she was making no demonstration, hostile or otherwise, towards him, and had no weapon in her hand. He further testified that, after she was struck and knocked down, the said Jeanette Nelson got up, called the appellant by his name, and, prefacing the remark with a vile oath, said to him, " I know I am going to kill you now;" that the appellant ran across the road, saying, "Don't let this woman kill me;" that the woman then went in the opposite direction, and, after walking about thirty-five yards, fell to the ground where she died. He further testified that he (the witness) and the appellant went to where the deceased had fallen; that the appellant then had an open pocketknife in his hand, which was bloody; that the appellant took an envelope out of the dead woman's hand, stated that he had killed her, asked how to get out of that county, and immediately left the scene. About a week later he was arrested in Coahoma county, about one hundred fifty miles from the scene of killing. The proof shows that the deceased was stabbed in the chest with some sharp instrument; one of the bones therein being severed.

The appellant admitted that he stabbed the deceased with his pocketknife. He testified that she attacked him with an ice pick, and that he cut her at a time when it appeared to him that it was necessary to do so to avoid losing his own life, or suffering some great bodily harm at her hands. An ice pick was found by the side of the road near the scene of the killing, and there was other testimony to support the appellant's version of the facts.

The appellant first contends that the court below erred in overruling a motion for a new trial which was based upon the ground of newly discovered evidence. This purported newly discovered evidence was contained in a transcript of the stenographic notes of the testimony of Lige Lacey, one of the state's witnesses, given at the preliminary hearing of the cause in the county court, the said transcript being attached to the motion as an exhibit...