Motley v. State

• Decision Date: 13 January 1936
• Docket Number: 31917
• Citation: 165 So. 296,174 Miss. 568
• Court: Mississippi Supreme Court
• Parties: MOTLEY v. STATE

165 So. 296

174 Miss. 568

MOTLEY v. STATE

No. 31917

Supreme Court of Mississippi

January 13, 1936

Division B

1 WITNESSES.

In homicide prosecution, exclusion as privileged, of testimony of insane hospital physicians as to knowledge of deceased's insanity acquired from perusal of hospital records, held error, where statute required that records of examinations of patients be kept (Code 1930, sections 1536, 4568 et seq.).

2. CRIMINAL LAW.

In homicide prosecution, exclusion of expert testimony of insane hospital physicians as to nature and character of mental disease with which deceased was afflicted held error, where knowledge of matters testified to was acquired by perusal of hospital records and not by a personal examination or by communications from deceased (Code 1930 sections 1536, 4568 et seq.).

3 HOMICIDE.

In homicide prosecution, exclusion of testimony as to occurrences when officers, with aid of defendant, arrested deceased in order to take him to insane hospital, held error, since evidence was admissible, in view of medical testimony that ideas once entertained by deceased would not be changed, to show deceased's hostility to defendant from time of arrest.

4. WITNESSES.

In homicide prosecution, testimony of deceased's wife as to statements made by her to defendant as to threats made against defendant by deceased held properly excluded.

5. HOMICIDE.

Homicide instruction defining "murder" as the willful and felonious killing of human being with malice aforethought held erroneous because of omission of phrase "without authority of law."

6. HOMICIDE.

In homicide prosecution, refusal to instruct that presumption was that defendant was justified in killing deceased, and that such presumption would warrant acquittal unless defendant feloniously and with malice aforethought killed deceased, held not reversible error, where deceased was killed with a deadly weapon.

7. CRIMINAL LAW.

In homicide prosecution, refusal to give requested instruction defining right to defend wife and home from danger held not error, where defendant procured another instruction covering such issues.

8. CRIMINAL LAW.

In homicide prosecution, giving of instruction that law tolerated no excuse for taking of human life upon plea of self-defense, unless necessary to save slayer's life, held not reversible error, where other instructions covered right of defendant to defend home, family, and self from threatened attack.

HON. D. M. ANDERSON, Judge.

APPEAL from the circuit court of Newton county HON. D M. ANDERSON, Judge.

Howell Motley was convicted of murder, and he appeals. Reversed and remanded.

Reversed and remanded.

W. M. Everett and B. F. Coursey, both of Decatur, for appellant.

Having all of the facts and circumstances in mind, the appellant knew and had reason to know, that when the deceased went to his home on the day he lost his life, and told him that he was going into his house and get his gun and kill him and his wife and baby, that the only way he could save his life and the lives of the other members of his family was to do just what he did do. The trial court, however, held that, when he walked toward the front door of the appellant's house, stating that he was going for the gun and that he was going to kill him and his wife and baby, constituted no overt act on his part, and that for this reason, the testimony with reference to the various threats was not competent. We are unable to understand upon what theory the court reached this conclusion.

Molphus v. State, 124 Miss. 584; Stokes v. State, 92 Miss. 415; Leverett v. State, 112 Miss. 394; Lucas v. State, 109 Miss. 82.

In the case of Williams v. State, 98 So. 242, this court held that, in a homicide prosecution, undisputed evidence that defendant killed the deceased while the deceased was breaking into his home for the purpose of killing defendant or doing him some great bodily harm, entitled the defendant to a directed verdict of not guilty.

Waller v. State, 91 Miss. 557; Powell v. State, 145 Miss. 252.

The court erred in granting the state its instruction in this language: "The court instructs the jury for the state that murder is the wilful and felonious kiling of a human being with malice aforethought; and if you believe from the evidence in this case beyond reasonable doubt that the defendant, Howell Motley, in Newton county, Mississippi, about the time testified about, so killed the deceased, Lee Motley, then the defendant is guilty of murder, and you should so find and return by your verdict."

Section 985, Code of 1930; Ivy v. State, 36 So. 265, 84 Miss. 264; Rutherford v. State, 100 Miss. 832.

The appellant complains of the action of the trial court in sustaining the objection to the testimony of Doctors Welch and Hoye. It is our contention that the testimony of these physicians was competent, and was admissible, and we do not think that our contention in this respect is in conflict with the rule announced by this honorable court in the case of Jenkins v. State, 146 Miss. 339.

Wm. H. Maynard, Assistant Attorney-General, for the state.

The alleged threats of deceased, Lee Motley, against appellant were properly excluded.

Myers v. State, 167 Miss. 76, 147 So. 308; Carter v. State, 167 Miss. 331, 145 So. 739.

It will be noticed that the state's instruction carries the word "felonious" and it was held in Winston v. State, 127 Miss. 477, 90 So. 177, that the word "feloniously" carries the idea of unlawful killing.

Smith v. State, 167 Miss. 85, 147 So. 482.

Refusing instructions which are covered by other instructions is not error.

White v. State, 169 Miss. 332, 153 So. 387; Dewberry v. State, 168 Miss. 366, 151 So. 479; Williams v. State, 163 Miss. 475, 142 So. 471; Reeves v. State, 159 Miss. 498, 132 So. 331; Evans v. State, 159 Miss. 561, 132 So. 563.

All instructions in a criminal case must be construed together and any omission in state's instructions, which is supplemented by defendant's instructions is not reversible error where all of the instructions taken together embody the correct legal principles.

Temple v. State, 165 Miss. 798, 145 So. 749; Tilman v. State, 164 Miss. 100, 144 So. 234; Myers v. State, 167 Miss. 76, 147 So. 308; Carter v. State, 169 Miss. 285, 152 So. 876.

The rule is that to defend on alleged threats and apprehensions of threats there must be a demonstration by the party making the threat which would induce a reasonable man to believe that there was danger of such threat being immediately executed.

Molphus v. State, 124 Miss. 584, 87 So. 113.

The lower court properly excluded the testimony of Doctors Welch and Hoye.

The testimony of these doctors was with reference to Lee Motley's insanity in 1932, and is the type of testimony that must be excluded by the court to prevent irrelevant and immaterial issues from creeping into the case. There was no attempt made to show that Lee Motley, if he were suffering from paranoia and were potentially dangerous, had ever developed into an actually dangerous man.

OPINION

Ethridge, P. J.

The appellant, Howell Motley, was indicted for the murder of his father, Lee Motley, at the August, 1934, term of the circuit court of Newton county; placed on trial at the March, 1935, term of the court on said indictment; convicted of murder; and sentenced to serve a life term in the state penitentiary, from which judgment this appeal is prosecuted.

The deceased was killed with a shotgun at the home of his son, who lived near him.

According to the appellant and his wife, the deceased came to their home, made a demand for money alleged by him to be due to him by his son, and they had a conversation in which the son offered to pay some money and to give some corn, although he claimed not to owe the debt, but said he would do so to save trouble. The relation between the father and son had been strained due to the fact that some time prior to the killing the father was arrested and taken to the insane hospital at Meridian, and the sheriff and his deputy being unable to overpower him, solicited the aid of the appellant, and because of this the deceased cursed his son, calling him a vile epithet, and said he would kill him if it was the last thing he did. This testimony was ruled out by the court below, apparently on the ground that it was too remote from the cause.

The appellant tendered two physicians, the present and past superintendents of the East Mississippi Insane Hospital, to prove that Lee Motley was insane, and the character of his insanity as shown by the records of that institution. Dr. Welch, the present superintendent, was not at the institution when Lee Motley was there, and had not made any examination of him, but he was the custodian of the records there, and was offered to prove the records, which was ruled out by the court. Dr. Hoye, the past superintendent, was then offered to show that the records were made under his superintendency, and to show that they were properly made, and what they contained. In the absence of the jury he was examined and stated that Lee Motley was afflicted with paranoia, and that his form of insanity rendered persons dangerous, and that when a person was so afflicted he could not get an idea once entertained out of his mind.

It was shown by the testimony of the appellant that after his father returned from the insane hospital he went over to see him and that his father directed his attention to the bullet holes made in the walls by the sheriff's pistol when he shot the deceased in arresting him, and his father grew very angry, and the appellant left, and that some little time before the killing the appellant was passing his father's house when he called him, and they had some words, and he...