Morris v. State

Decision Date05 December 1927
Docket Number26562
Citation148 Miss. 680,114 So. 750
CourtMississippi Supreme Court
PartiesMORRIS v. STATE. [*]

(Division A.)

1. CRIMINAL LAW. Defendant, by failure to secure ruling on request for instruction to disregard question asked defendant's witness and to except thereto, lost any advantage.

Defendant by failing to secure ruling on request that jury be instructed not to consider question asked on cross-examination of witness for defendant and by failing to except thereto, lost any advantage by reason thereof, if mere asking of question constituted error.

2 HOMICIDE. Defendant held properly questioned relative to deceased's having shot and wounded defendant's brother prior to killing as showing motive.

In prosecution for murder, defendant was properly questioned on cross-examination relative to ill feeling between him and deceased because of deceased's having shot and wounded defendant's brother during the summer prior to killing in that it tended to show motive.

3. CRIMINAL LAW. Reopening case after both parties rested, for rebuttal testimony by state, held within trial court's discretion.

Where court was adjourned late in the afternoon, after both defendant and state rested, reopening of case the next morning to permit state to introduce rebuttal testimony held within sound discretion of trial court, who in so doing carefully protected rights of defendant by authorizing delay for purpose of bringing any witnesses into court who had been theretofore discharged.

4. CRIMINAL LAW. Instruction requiring belief beyond reasonable doubt that defendant killed deceased held not erroneous as assuming such fact.

In prosecution for murder, instruction requiring jury to believe from the evidence beyond a reasonable doubt that defendant unlawfully, willfully, feloniously, and with malice aforethought, killed and murdered deceased, held not erroneous as assuming that defendant killed deceased.

5. CRIMINAL LAW. Instruction that failure to prove motive constituted favorable circumstance to defendant held properly refused as being on weight of evidence.

In prosecution for murder, instruction that failure on part of state to prove a motive for defendant's having killed deceased constituted a strong circumstance favorable to defendant, held properly refused as being on the weight of the evidence.

Division A

APPEAL from circuit court of Neshoba county.

HON. G. E. WILSON, Judge.

Brooks Morris was convicted of murder, and he appeals. Affirmed.

Judgment affirmed.

Appellee cites: Webb v. State, 73 Miss. 456; Singleton v. State, 71 Miss. 782; Storey v. State, 68 Miss. 609; Bateman v. State, 64 Miss. 233; Gilliam v. State, 62 Miss. 547; Josephine v. State, 39 Miss. 613; State v. Martin, 102 Miss. 165; Brabston v. State, 68 Miss. 208; Golding v. State, 109 So. 731; Powell v. State, 67 Miss. 119; McCullough v. State, 28 So. 946; House v. State, 94 Miss. 107; Storey v. State, 68 Miss. 609; 13 R. C. L. 746.

OPINION

COOK, J.

In the circuit court of Neshoba county, Brooks Morris was convicted of murder and sentenced to the penitentiary for life, and from this conviction and sentence he prosecuted this appeal. The deceased was shot and killed while standing in a church viewing the closing exercises of a negro school. Several eyewitnesses testified that the appellant shot the deceased in the back of the head without any sort of provocation. The testimony for the state makes a case of deliberate and unprovoked murder. The defense offered was an alibi, several witnesses testifying that, at the time of the shooting, the appellant was about one-half mile from the church, assisting in repairing an automobile tire.

On the cross-examination of Miss Moore, a witness for the defendant, she was asked this question in reference to her father, "Is he the Mr. Will Moore who asked that this case be continued here at this term of court in which he is charged with a violation of the liquor law?" Counsel for the defendant objected to this question, and the court sustained the objection, and the question was not answered. Counsel then requested that the jury be instructed not to consider it, and to this request the court made no response. Counsel did not secure a ruling upon this request, and there was no exception to the action of the court, but they now assign as error the failure of the court to instruct the jury not to consider this question.

If the mere asking of the question may be assigned as error, the appellant lost any advantage by reason thereof when he failed to secure a ruling upon his request, and failed to except to the court's failure to instruct the jury to disregard the question.

On the cross-examination, the defendant was asked as to the feeling between him and the deceased, and he stated there was no bad feeling or ill will between them. Over the objection of counsel, he was then asked if it were not a fact that, during the summer prior to this killing, the deceased had shot and wounded defendant's brother. He admitted this fact to be true, but stated that he did not have any ill will toward the deceased on account of this prior shooting, and the action of the court in permitting this cross-examination is assigned as error. We think this testimony was admissible as tending to show bad feeling toward the deceased and a motive for the shooting.

At the conclusion of defendant's testimony, late in the afternoon, both the defendant and the state rested, and the court adjourned until the following morning. At the request of the court, counsel prepared their instructions during the night, and presented them to the judge before court convened the next morning. When court convened, the district attorney moved the court to reopen the case for the purpose of permitting the state to introduce certain rebuttal testimony. The defendant objected on the ground, principally, that his witnesses had been discharged. The court granted the request to reopen the case, but informed counsel for the defendant that the case would be delayed until any witnesses desired by him were brought into court. At the conclusion of the rebuttal testimony, the witnesses requested by the defendant were in court, but he offered no further testimony. The action of the court in reopening the case is assigned as error.

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14 cases
  • Brown v. State
    • United States
    • United States State Supreme Court of Mississippi
    • 29 Abril 1935
    ...... matter of reopening a case is left to the sound discretion of. the trial court and the action of a trial court in reopening. a case will not be reviewed in the absence of a showing of an. abuse of that discretion. . . Baird. v. State, 146 Miss. 547, 112 So. 705; Morris v. State, 148 Miss. 680, 114 So. 750; Richardson v. State, 153 Miss. 653, 121 So. 284; State v. Martin, 102. Miss. 165, 59 So. 7. . . Appellants. urge that it was reversible error for the court to sustain. the objection of the district attorney. The witness was. relating, or ......
  • Brown v. State
    • United States
    • United States State Supreme Court of Mississippi
    • 7 Enero 1935
    ...... matter of reopening a case is left to the sound discretion of. the trial court and the action of a trial court in reopening. a case will not be reviewed in the absence of a showing of an. abuse of that discretion. . . Baird. v. State, 146 Miss. 547, 112 So. 705; Morris v. State, 148. Miss. 680, 114 So. 750; Richardson v. State, 153 Miss. 653,. 121 So. 284; State v. Martin, 102 Miss. 165, 59 So. 7. . . Appellants. urge that it was reversible error for the court to sustain. the objection of the district attorney. The witness was. relating, or ......
  • Richardson v. State
    • United States
    • United States State Supreme Court of Mississippi
    • 25 Marzo 1929
    ...the state may re-open its case even after both sides have rested. State v. Martin, 102 Miss. 165; Baird v. State, 146 Miss. 547; Morris v. State, 148 Miss. 680. J. ETHRIDGE, J., Judges GRIFFITH and ANDERSON, dissenting. OPINION MCGOWEN, J. Silas Richardson, the appellant, was tried and conv......
  • Auman v. State
    • United States
    • United States State Supreme Court of Mississippi
    • 2 Enero 1973
    ...821) (1957); Smith v. State, 217 Miss. 123, 63 So.2d 557 (1953); Fisher v. State, 150 Miss. 206, 116 So. 746 (1928); Morris v. State, 148 Miss. 680, 114 So. 750 (1927). (250 Miss. at 790, 168 So.2d at In the instant case when appellant objected to the statement of the witness Campbell, the ......
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