Murphy v. State

• Decision Date: 10 July 1922
• Docket Number: 22718
• Citation: 92 So. 694,129 Miss. 634
• Court: Mississippi Supreme Court
• Parties: MURPHY v. STATE

92 So. 694

129 Miss. 634

MURPHY v. STATE

No. 22718

Supreme Court of Mississippi

July 10, 1922

1 HOMICIDE. Circumstantial evidence held to sustain conviction.

In a murder case the evidence for the state is sufficient, under the rules of circumstantial evidence, where it shows that the deceased was last seen in an automobile with the persons indicted for the crime going in the direction where the body was found some weeks later, on the evening of the supposed killing, and that afternoon shooting was heard in that direction, and the voice of the deceased was heard between the shots crying in distress, and after the shooting was heard no more, and that the shooting was at or near the place where the body was afterwards found in a millrace, and that after the shooting the car was cranked and started back and passed the house of the person who saw them going on, it being night when they returned, and the evidence showed statements by the defendants that deceased had left the state, and also that the defendants and deceased had been engaged in making moonshine whisky, and that admissions of guilt had been made by one of the defendants.

2. CRIMINAL LAW. Instruction on conspiracy held not error.

In the case above stated the following instruction for the state was not reversible error: "That if they believe from the evidence in this case beyond a reasonable doubt that there was an unlawful agreement between Joe Murphy, Warren Murphy and Jim Cash, or between Joe Murphy and either Warren Murphy and Jim Cash, to unlawfully take the life of the deceased and that in pursuance to this conspiracy or agreement the defendants charged in this indictment, or either of them, killed and murdered the deceased as charged therein, then the defendant Joe Murphy is as truly guilty of murder as though he had actually committed the homicide by himself alone." This instruction is supplemented by others defining murder and the degree of proof required to sustain it

3 HOMICIDE. Evidence that deceased and defendants had been engaged in unlawful manufacture of liquor held admissible to show motive.

In a murder case depending upon circumstantial evidence for conviction, evidence that the deceased and defendants were jointly engaged in the unlawful manufacture of intoxicating liquor is admissible as a circumstance, in connection with other evidence to show motive, and, if coupled with other facts properly tending to show guilt, such evidence should be admitted.

4. CRIMINAL LAW. Testimony as to statement of one defendant held admissible as against another present at conversation. In a murder case depending upon circumstantial evidence, and where a conspiracy is shown by the evidence, and that all the defendants were at the killing, but the proof does not show which fired the fatal shot, a statement by one of the defendants that another, who was present at the conversation and did not deny the statement, fired the shot, and that he the person making the statement, assisted in disposing of the body, and that defendant being tried was there, is admissible in evidence.

HON. W A. ROANE, Judge.

APPEAL from Circuit Court, Marshall county, HON. W. A. ROANE, Judge.

Joe Murphy was convicted of murder, and he appeals. Affirmed.

Judgment affirmed.

L. A. Smith, for appellant.

We ask the court to consider their ruling in Spight v. State, 83 So. 84, 120 Miss. 752, in which the court declares that it will not to any extent usurp the function of the jury if the testimony offered is such that a jury is reasonably warranted in believing it and acting upon it. Is it reasonable that one state witness should convict appellant because of having heard, even if we concede he could have done so, a mile and three quarters away, shouts and cries and shots at nine o'clock or after at night; and another state witness should convict the same appellant in same case because, even if we concede he could see the cars one hundred and five yards away through a screen of bush and trees, he saw appellant and codefendants and the deceased in an auto on the road to the bottom in the afternoon at 3:30 o'clock, and saw the same car come back, containing all its previous passengers except deceased, at eight o'clock the same night. Are these slightly probable facts, all highly circumstantial going to be construed to be such reasonable proof of the guilt of an accused in a capital case that they will be permitted to discount and disprove the direct evidence of the negro Sykes (not under indictment as was Caldwell for a felony at the time of his testimony), and whose statement is not so palpably false as is that of the other negro Newt Alston and which fits in with the evidence of white men?

In Nalls v. State, 90 So. 892, a murder case, this learned court declared in the syllabus: "A conviction may be had on circumstantial evidence alone when by it guilt is proven beyond a reasonable doubt; but before such evidence can be said to prove guilt beyond a reasonable doubt it must exclude every other reasonable hypothesis than that of guilt." In that case, the court held the facts insufficient to sustain a verdict of guilty, and discharged the appellant. Let us see if there is not an hypothesis in this case, a reasonable one in the extreme, inconsistent with the guilt of appellant, and appearing from the evidence of the state, and strengthened by the evidence of the defense.

In the first place, the deceased was not closely thrown with appellant, like he was with his codefendants, Warren Murphy and Jim Cash, for whom deceased worked. In the next place, appellant had never had any quarrel with the deceased, as had occurred between Jim Cash and the deceased with reference to the fence gap, and which quarrel was still smouldering in the mind of Cash long after it occurred, as is shown by his recurring to it, as detailed by David Pryor.

Again, conceding for the sake of our point, that Lewis Caldwell, altho under indictment for larceny, was telling the truth when he saw the car that afternoon and that Virgie Pryor, the deceased, was in it, with Warren Murphy and Jim Cash. He might be correct that far, and incorrect, owing to the distance and the obstructions between him and the car, when he thought he saw appellant therein, because the whereabouts at that time of the appellant have been fully accounted for, as elsewhere, by Sykes, Newcom, Mrs. Murphy and Miss Maude Murphy.

And further, conceding, for the sake of argument, that Newt Alston has in fact the miraculously powerful hearing he claimed, and did hear the shouts and shots in the creek bottom at nine o'clock at night. Still that would not involve necessarily the presence of the appellant at the scene of the tragedy because, according to Mrs. Murcheson, Mrs. Murphy and Miss Maude Murphy the appellant was at that hour safe within the confines of his home, peacefully entertaining the guest, Mr. Murcheson, many miles away from the old mill site in the creek bottom.

There is no evidence in the record anywhere that appellant had any agreement with either or both his codefendants to kill and murder the deceased. The only approach to it is that when Jim Cash and deceased were quarreling about the fence gap, David Pryor said that appellant told Cash to let deceased alone they would get him! That could mean any of a dozen things; that they would surrender him to the custody of the law, or give him a whipping; or run him off; or fire, discharge, him. Certainly it is not enough for a jury in a murder case to hold to be sufficient to prove a conspiracy beyond a reasonable doubt; and in a murder case founded on circumstantial evidence to be sufficient to exclude every other reasonable hypothesis!

Another objection we have to the charge is that it is indefinite and vague and ambiguous, and violates the rule laid down by this court in Smith v. State, 91 So. 41, which requires that the ingredient of malice aforethought must be clearly set forth in such charges, and this charge is insufficient in its compliance with the law, because it says simply: "To unlawfully take the life of the deceased."

In support of our position as to the passing or continuance of the case, we cite Brooks v. State, 108 Miss. 571, 67 So. 53 and Johnson v. State, 111 Miss. 282, So. 239. Wherefore we most respectfully urge upon the court the reversal of the case, and its remand; or its reversal and the discharge of the appellant.

H. Cassedy Holden, assistant attorney-general, for the state.

The main contention of the appellant is that the evidence was insufficient to support the verdict. The rule is, where circumstantial evidence is relied upon entirely, that the evidence must be sufficient to convince the jury beyond a reasonable doubt and of a moral certainty, and to the exclusion of every other reasonable hypothesis except that of guilt.

In this case the jury was properly instructed by the court that they must believe in the guilt of defendant beyond all reasonable doubt, to a moral certaintly, and to the exclusion of every other reasonable hypothesis. Their exclusive right to believe such witnesses as it chose to believe and to disbelieve those witnesses whose credibility it doubted.

The circumstances indicated the certain guilt of the defendant, Warren Murphy and Jim Cash. The defendant's witness, if believed, proved an alibi for the defendant. But the jury had the right to disregard the alibi testimony and to accept the circumstantial evidence. Are the circumstances sufficient? If not, the case should be reversed. It is submitted that the chain of circumstances is without a weak link.

Admission of testimony concerning the making of whiskey was not erroneous. This circumstance was very vital and suggestive. In fact, it was the theory of the state that the...