Moore v. State

• Decision Date: 14 June 1937
• Docket Number: 32789
• Citation: 179 Miss. 268,175 So. 183
• Court: Mississippi Supreme Court
• Parties: MOORE v. STATE

175 So. 183

179 Miss. 268

MOORE v. STATE

No. 32789

Supreme Court of Mississippi

June 14, 1937

Division A

1. CRIMINAL LAW.

In murder prosecution, testimony that defendant's niece stated that she destroyed letter allegedly written to her by defendant while in jail held properly excluded as hearsay.

2. CRIMINAL LAW.

In murder prosecution, introduction of secondary evidence of contents of letter written to his niece by defendant while in jail held reversible error where there was no proof of loss of original.

3 HOMICIDE.

In murder prosecution, exclusion of testimony that deceased had made numerous enemies, offered to show that others had motive for killing deceased, held not error.

4. CRIMINAL LAW.

Credibility of witness, as well as weight to be given his testimony, was for jury.

5. CRIMINAL LAW.

In murder prosecution, alleged error in failing to charge in one instruction that circumstantial evidence to warrant conviction must exclude every reasonable hypothesis except that of accused's guilt was cured by four instructions granted to defendant containing correct charge on such matter.

HON. T H. McELROY, Judge.

APPEAL from circuit court of Union county HON. T. H. McELROY. Judge.

Jim Walter Moore was convicted of murder, and he appeals. Reversed and remanded.

Reversed and remanded.

Chas Lee Crum, of New Albany, for appellant.

The appellant in the trial undertook to show by facts connected with the dealings of appellant and deceased up to the time of the killing that the appellant and deceased were good friends. All of this line of testimony was uniformly excluded by the court and kept from the jury, which was a grievous error.

The instruction requested under Assignment V should have been given and not refused; for if it was reasonably probable from all the evidence that some one else killed Coleman, then it would be reasonably probable from the evidence that defendant did not kill him, and there was a reasonable doubt of the guilt of the defendant, and the jury should specifically have been instructed to give defendant the benefit of such doubt and acquit. It was reversible error in the court below to exclude this evidence and reversible error to refuse this instruction, which went to the crux of the defense.

Hardy v. State, 172 So. 131; Warren v. State, 166 Miss. 284.

It does not help a defendant before a jury that has to pass on his guilt or innocence to argue that instructions given for the defendant qualify, or modify those given for the state in the case, when the district attorney has the closing argument and the privilege of picking this instruction out in his closing argument and saying to the jury: "You do not have to actually know the defendant is guilty to convict him."

The evidence of the conduct of Dewey Hall, city Marshall of New Albany and State's witness, and his rehearsal of a conversation with Lena Snider, a niece of defendant, but not a witness in this case, all as related by Dewey Hall himself, and all of which occurred in the absence of the defendant, is flagrantly incompetent, and in view of his statement that Lena Snider was a niece of defendant, was highly prejudicial to appellant before the jury, and for this error this case should be reversed.

Then, to make this evidence more harmful and to further the effect of the error, the court refused the instruction asked by the defendant announcing the law, that the testimony of detectives and informers and persons specially employed or engaged to hunt up evidence against defendant should be considered by the jury with greater care than that of witnesses wholly disinterested.

The court below, over the objection of defendant, permitted M. S. Hall to testify as to such parts of the letter handed him by Sam Farris, not written or signed by defendant (for defendant is shown to be unable to write or read writing) as the witness said he remembered, while stating at the time he could not remember all that was in the letter. This was fatal error in several particulars: First, it was shown that defendant did not write the letter, and no one swore he did, and it was further shown that he could not read writing; Second, that it was not signed by defendant or any one else, and was not shown to have been the product of defendant, or that defendant ever knew its contents; Third, that defendant's connection with the letter, even remotely, was shown to rest entirely on incompetent testimony, hearsay evidence, between Sam Farris and Isaac Bowen, which the court had excluded, after admitting it over the objection of the defendant; Fourth, that the letter was not addressed to "Lena Snider," but only to some one named "Lena"; Fifth, that M. S. Hall could not remember all the contents of the letter, and the relating of only a part of it without being able to relate other qualifying parts that he did not remember, would reasonably change the whole import of the meaning; Sixth, M. S. Hall appeared to have been an unusually "willing witness" for the prosecution, yet, over the insistent objection of counsel for defendant, the court permitted the district attorney to "lead" this witness, that is, ask him questions suggesting the answers. All these things were errors, prejudicial to the defendant, incompetent testimony, unlawful evidence and highly prejudicial to defendant.

The testimony of Sam Farris with reference to Isaac Bowen handing him a letter unsigned, and what the negro told him to do with the letter, in the absence of the defendant, was objected to and should never have gone to the jury, and its exclusion by the court, after the jury had heard it, could not erase from the minds of the jury what had improperly gone to them. But with this testimony excluded by the court, the testimony of M. S. Hall was rendered additionally incompetent and harmful to defendant.

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

In appellant's brief it seems that he takes exceptions to the reasons given by the trial judge in sustaining objections to certain testimony. So far as this court is concerned it can make no possible difference whether the trial judge gave the right or wrong reason for his ruling or whether he gave an insufficient or no reason for it. If the right result has been reached, there is nothing of which the appellant can complain here.

Tucker v. State, 103 Miss. 117, 60 So. 65; Carter v. State, 167 Miss. 331, 145 So. 739.

It is a familiar rule of that law before a trial court is warranted in giving an instruction it must not only state a rule of law correctly, but it must have some application to the facts developed by the trial. In other words, the instruction may state a correct rule of law, but if there are no facts to support it, it is imminently proper for the court to refuse it.

It is a familiar rule of law that all the instructions in a criminal case must be construed together. The instructions for the defendant supplement those of the state and vice versa. If there is no irreconcilable conflict in the instructions and they, as a whole, correctly state the law, there is no error in the giving of any particular instruction.

Williams v. State, 160 Miss. 485, 135 So. 210.

It is a rule of this court that where some error is present in both the state's and...