Mott v. State

• Decision Date: 06 December 1920
• Docket Number: 21519
• Court: Mississippi Supreme Court
• Parties: MOTT v. STATE

86 So. 514

123 Miss. 729

MOTT v. STATE

No. 21519

Supreme Court of Mississippi

December 6, 1920

October 1920

APPEAL from circuit court of Newton county, HON. A. J. MCLAIN Judge.

1 HOMICIDE. Previous uncommunicated threats are admissible when doubtful who began difficulty.

Evidence of previous uncommunciated threats is admissible in cases where it is doubtful who began the difficulty, as tending to solve the doubt.

2 HOMICIDE. Aggression is doubtful where evidence thereon is conflicting.

The question as to who is the aggressor is doubtful in the meaning of this rule when there is a conflict of testimony upon that point.

3. HOMICIDE. Uncommunicated threat held admissible where deceasea first hit defendant.

Where the deceased, three days before the difficulty with appellant, stated that he would kill the appellant before the week was over if he had to knock him in the head, and the testimony was conflicting as to who was the aggressor but shows uncontradictedly that deceased struck the first blow hitting appellant a very severe blow in the head with a cant hook, the testimony of this uncommunicated threat was material, and it was reversible error to exclude.

4. CRIMINAL LAW. Only approved instructions should be requested. In homicide cases it is better practice for the state to request instructions that have been approved by this court and for as few as will clearly present the theory of the state.

Hon. A. J. McLAIN, Judge.

Martin Mott was convicted of murder, and he appeals. Reversed and remanded.

Reversed and remanded.

Byrd & Byrd, for appellant.

To assist in determining who was the aggressor in a difficulty this court has always held, we think, that previous threats made by either party against the other are admissible. The defendant introduced Mr. Garl Harris who testified, in the absence of the jury, as to a previous threat made by deceased against defendant. But this testimony was excluded and not allowed to go to the jury. We respectfully submit that this was error. We call the court's attention to the following authorities which, we think, are decisive of this point and which demonstrate that the court was in error in excluding the testimony: "The testimony of the witness Smith should not have been excluded. The fact that the deceased was trying to procure a pistol from him with which, as he in effect stated to another, he intended to kill deceased, was material in determining whether he or the defendant was the aggressor, in the difficulty in which he lost his life." Lucas v. State, 67 So. 851--latter part of the opinion.

"But where death ensues from a conflict, and a question is raised by the evidence who was the aggressor, and whether the accused may not have acted in self-defense, recent threats may aid the jury in coming to a satisfactory conclusion. Such we understand to be the reasonable rule, illustrated with more or less clearness, in the cases referred to." Johnson v. State, 54 Miss. 430.

". . . and Weathersby testified that Bradley told him that the woman he was hunting for was a married woman, and remarked that there would be trouble if her husband, who was at Columbia, found out about their relations, and that he would either have to kill the husband or the husband would kill him. Though uncommunicated, the conversation related to the feeling Bradley had for Leverett, and was threatening."

Likewise the testimony of Mrs. Leverett, with reference to a conversation with Bradley own the telephone, which conversation was communicated to Leverett, was admissible for the same reason. Leverett v. State, 73 So. 273. And to the same effect are the following cases: Guice v. State, 60 Miss. 714; Hawthorne v. State, 61 Miss. 749; Johnson v. State, 66 Miss. 189; Wiggins Case, 93 U.S. 465.

Wharton in his work on Criminal Law, section 1027, last Ed., says: "Where the question is as to what was the deceased's attitude at the time of the fatal encounter, recent threats may become relevant to show that this attitude was one hostile to the defendant, even though such threats were not communicated to the defendant.

Underhill on Criminal Evidence (second Ed.), section 326.

W. M. Hemingway, assistant attorney-general, for the state.

The exclusion of the threats, and the case it made out, was proper because there is not the slightest connection between the threats that were made and the occasion of this fuss and killing. If the threats had had any bearing on this case then, of course, they should have been admitted--even uncommunicated threats.

OPINION

SYKES, J.

Martin Mott was convicted of the murder of one Avery McCarty and sentenced to the penitentiary for life, from which judgment this appeal is prosecuted.

The testimony in the case is conflicting. Three eyewitnesses to the homicide testified for the state. According to the testimony of the two negro eyewitnesses to the killing, the appellant and the deceased began cursing each other and appellant told deceased that he was tired of playing and that--"The next son of a bitch that hits me I am going to stick my knife in him, and I don't give a damn who it is."

The appellant then opened his knife and went some distance away and got a drink of water, and was standing within about fifteen or twenty feet of the deceased when the deceased said to him: "If you make another God damn track toward me with that knife, I will bust your God damn brains out, and he stepped this way and Avery hit him with a cant hook."

The deceased then dropped the cant hook according to this witness and began backing back, and the appellant continued to advance on him with the open knife. The deceased stumbled and fell on his back, and the appellant stuck the knife in him. It is estimated that the deceased retreated backwards about fifteen feet.

The testimony of the next eyewitness is in substance like that above quoted, with the exception that he stated that the deceased after falling picked up a stick of some kind, called in the record a "slab," and struck appellant just after appellant had stuck his knife in deceased. Both of these witnesses...