Myers v. State

• Citation: 167 Miss. 76,147 So. 308
• Decision Date: 03 April 1933
• Docket Number: 30126
• Court: United States State Supreme Court of Mississippi
• Parties: MYERS v. STATE

147 So. 308

167 Miss. 76

MYERS v. STATE

No. 30126

Supreme Court of Mississippi

April 3, 1933

Suggestion Of Error Overruled May 29, 1933.

(En Banc.)

1. CRIMINAL LAW.

Where evidence respecting prejudgment of homicide case was at most merely conflicting, refusal of change of venue was proper.

2 HOMICIDE.

Threat by deceased against accused in homicide case may be made at time too remote from act which it is offered to color to be of any evidential value.

3 HOMICIDE.

Burden is on accused in homicide case to establish that threat by deceased was not too remote to be of evidential value.

4 HOMICIDE.

In determining admissibility of threat by deceased against accused, doubts on question whether threat was too remote must be resolved against admissibility thereof.

5. HOMICIDE.

Evidence must disclose with reasonable certainty approximate date of making of threats by deceased against accused in homicide case for threats to be admissible).

6. HOMICIDE.

Alleged threat by deceased to kill accused, made over eight months before homicide, held properly excluded on ground of remoteness where during such period deceased and accused were in almost daily contact, living most of time under same roof.

7. CRIMINAL LAW.

If, when instructions are read together, applicable law correctly appears, no error has been committed in granting instructions, though one or more of them when separately considered present error.

8. CRIMINAL LAW.

Giving instruction for state held not error as misleading jury into believing that, if they found accused guilty of anything, it must be of murder, where instruction for accused submitted form of verdict for manslaughter.

9. JURY.

Juror who had paid one-half of his taxes on or before February 1, remaining half not being due under statute at time of murder trial, held, as Respects payment of taxes, qualified juror (Gen. Laws 1931 [Ex. Sess.] chapter 24, section 1; Constitution 1890, section 241).

McGOWEN, COOK, and ETHRIDGE, JJ., dissenting.

HON. W. H. POTTER, Judge.

APPEAL from circuit court of Yazoo county HON. W. H. POTTER, Judge.

Ed Myers was convicted of murder, and he appeals. Affirmed.

Affirmed.

W. A. Henry, of Yazoo City, for appellant.

Our objection to instruction No. 2 is that it eliminates any doubt arising from the want of evidence and to No. 3 that it fails to instruct the jury in the event of a verdict of guilty that they could find a verdict of manslaughter.

Smith v. State, 137 So. 97; Allen v. State, 139 Miss. 605; Bowen v. State, 144 So. 230; Johnson v. State, 75 Miss. 675; 38 C. J. 83, sec. 262.

There should be a reversal on the ground that the change of venue was denied.

The facts in this case show that the defense exhausted its twelve peremptory challenges and was, therefore, forced to accept the last juror. At that time before accepting the jury, a motion was made renewing the request for a change of venue on the ground that the voir dire of the jury had proven in addition to the showing already made that the defendant could not get a fair and impartial trial.

The record shows that a distorted account of the homicide was published, that all the proceedings of the preliminary trial and the habeas corpus trial were published; that there was a great deal of publicity about the case and that it was talked of all over the county.

The court below committed prejudicial error in refusing to allow the defendant to show the vicious character of the deceased by attacks on his father and the circumstances under which the deceased bit off part of the defendant's ear.

State v. Wm. Moseley, 89 Miss. 802.

All of this testimony would have thrown considerable light on the state of mind of the defendant and of William Carr at the time of the final combat, and was particularly important in view of the fact that there was no actual eye witness to the killing. Mrs. Woodruff testified that in the fall of 1930 William Carr told her that he had bitten Myers' ear off and that the next time he was going to bite his jugular vein in two.

Lee v. State, 160 Miss. 618; Sixth Encyc. of Evidence 644.

Another ground for asking a reversal is found in the examination of the juror Woods. Mr. Woods testified that he had not paid all of his taxes before the first day of February. The constitution requires that only qualified electors be accepted on the jury.

Constitution of 1890, section 241.

The Legislature in its wisdom saw fit to extend the time of payment to meet the exigencies of the present distressing situation and we commend them for it, but their act in relieving a person of any damages on account of his failure to pay on February 1 in no way changed the constitutional requirement that he would be eligible for jury duty only where he paid all of his taxes before February 1.

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

The jury has the right to believe portions of the testimony of each of the witnesses, rejecting other portions, and evidence which tends to establish murder or self defense will warrant a conviction for manslaughter, where the jury, by accepting portions of the testimony of each witness, might have so found.

Triplett case, 132 So. 448.

The state introduced some twenty-eight witnesses, twenty-seven of whom testified that there was no general prejudgment of the case and that there was nothing to prevent this defendant from obtaining a fair and impartial trial.

On conflicting evidence on application for a change of venue, the trial judge's decision will not be disturbed, unless manifestly wrong.

Wexler v. State, 142 So. 501; Jones v. State, 133 Miss. 684, 98 So. 150.

The threats were conditional and they were too remote to throw any light on the facts leading up to this homicide.

William Moseley v. State, 89 Miss. 802, 41 So. 384.

Chapter 24 of the General Laws of the state of Mississippi, Extraordinary Session of 1931, provides for the payment of ad valorem taxes in four quarterly installments, but provides that in the payment of ad valorem taxes for the year 1931 the first and second quarterly installments shall be due and payable on or before the first day of February, 1932. The juror Woods showed that he had paid the first half of his taxes on or before February 1, 1932. Such being the case he was in default for no taxes for the year 1931, because he had brought himself within the provisions of this act and he had paid all taxes which had been legally required of him prior to such date.

J. G. Holmes, of Yazoo City, for the state.

Because the jury accepted the testimony for the state and rejected the contradictory and uncertain testimony of the appellant, is no reason for asserting that the appellant did not receive a fair and impartial trial. It was the province of the jury to pass upon the testimony, and we submit that their conclusion is the only conclusion which could honestly be drawn from the testimony as presented to them.

Instruction No. 2 charged the jury that in trying this case they should not hunt for doubts, etc. This instruction on more than one occasion has been before this court, and the court has declined to reverse therefor.

Smith v. State, 103 Miss. 356; Jones v. State, 130 Miss. 703; Harris v. State, 99 So. 754.

Irrespective of the distinction existing between the Allen case, 139 Miss. 605, and the Tatum case, 142 Miss. 110, the complete answer to the argument of counsel opposite with reference to the instruction No. 3 is that the jury in this case were expressly instructed that they might return a manslaughter verdict.

Grady v. State, 144 Miss. 778; Richardson v. State, 121 So. 284.

The granting of a change of venue is a matter so largely in the discretion of the trial court that a judgment of conviction will not be reversed on appeal on the ground that a change of venue has been refused unless it clearly appears that the trial court abused its discretion.

Dalton v. State, 141 Miss. 841.

Appellant sought by the witness Mrs. Woodruff to show that the deceased had made a threat against the appellant. The nature of the threat was an unconditional and uncommunicated threat, and was to the effect that if the appellant ever bothered him, the deceased, any more, that he, the deceased, would kill the appellant. The court declined to admit this testimony on the grounds that the so-called threat was too remote. We respectfully submit that this action of the court was proper.

In order to be a qualified juror so far as the question of taxes was concerned, the juror Woods was only required to pay on or before the first of February all taxes which may have been legally required of him and which he has had an opportunity to pay according to law. Under the legislative enactment permitting the payment of taxes in installments he was only legally required to pay such taxes as were due on or before the first of February. When he did this he met the legal requirements in so far as the payment of taxes was concerned with reference to his status as a qualified elector.

Smith, C. J., McGowen, J., dissenting. Cook, J., joins in this dissent. Ethridge, J., thinks the giving of the third instruction was error.

OPINION

Smith, C. J.

This is an appeal from a conviction of murder. The appellant's complaints are:

1. He should have been granted a change of venue.

2. The evidence is insufficient to support a conviction of guilty of anything; but, if mistaken in that, it is sufficient only to support a verdict of manslaughter.

3. The exclusion of evidence of a threat by the deceased to kill the appellant.

4. The granting and refusal of instructions.

5. The holding of an alleged disqualified juror to be competent.

The evidence as to the prejudgment of the case, at most, was merely...