Owens v. State

Citation32 So. 152,80 Miss. 499
CourtUnited States State Supreme Court of Mississippi
Decision Date09 June 1902
PartiesWHITTINGTON OWENS v. STATE OF MISSISSIPPI

FROM the circuit court of Lafayette county. HON. PERRIN H. LOWREY Judge.

Whittington Owens, the appellant, was indicted in the circuit court of Lafayette county, at the December special term, 1901, for the murder of Hugh Montgomery. The indictment was a joint one against Owens, Orlandus Lester, William Matthis, and William Jackson. The same parties were also indicted by the same grand jury for the murder of John A. Montgomery. There was a severance in each case, and each of the defendants were separately tried, Owens on each of the indictments. Orlandus Lester was convicted and sentenced to death. William Matthis was also convicted and sentenced to death. William Jackson was convicted and sentenced to the penitentiary for life. Whittington Owens, the appellant, was convicted upon the indictment for the murder of John A. Montgomery and sentenced to the penitentiary for life. He was convicted on the indictment for the murder of Hugh Montgomery and sentenced to death. He appealed from both convictions to the supreme court. The facts in reference to these murders, as disclosed by the record, are these: William Matthis, one of the indicted parties, had been charged in the United States court for the northern district of Mississippi with the unlawful distilling of whisky, commonly called "moonshining." The decedents, Hugh Montgomery and John A. Montgomery, were deputy United States marshals called, in the moonshine districts, "revenue officers." They had placed in their hands on the day they were murdered a warrant from the United States court for the arrest of William Matthis. They left Oxford and proceeded to the residence of Matthis, arriving there quite late in the afternoon, finding Matthis at home, engaged in some domestic business somewhat inconvenient for him to abandon. He prevailed with the officers to remain over night with him at his country home, promising that he would go to Oxford with them the next morning and execute a bond for his appearance in the United States court to answer the charge for which the officers held the warrant. Orlandus Lester, a negro, was in the employment of William Matthis, aiding him about the domestic affair, the suspension of which, for the accommodation of Matthis, was not insisted upon by the officers. On the trial of the cases it appeared that after the officers had retired for the night, Matthis, Jackson, and Lester went into the room, where they found them asleep in bed, and killed them with guns, after which Matthis moved their bodies to a point near the center of the building and set fire to the house, burning it down over the bodies of the victims, believing that thereby he could destroy all evidences of guilt. It was shown in evidence that Owens, the appellant, was the father-in-law of Matthis and resided a mile and a half or two miles distant from him. The only affirmative testimony against the appellant was that of Orlandus Lester, one of the convicted defendants, who testified that after the officers had consented to remain during the night at the home of Matthis, he [Lester] at Matthis' request, went over to Owens' residence to ask Owens, as directed by Matthis, to come and bring his gun and aid in killing the revenue officers. Lester testified that he delivered this message to Owens, who declined to go giving as a reason therefor that if he left home, his wife would raise a racket and disturb the neighborhood; that Owens sent his gun and some buckshot by Lester, together with a message to Matthis to the effect that Matthis, Jackson, and Lester could do the work well and must not allow the revenue officers to escape. This was the testimony of Lester on his direct testimony. On his cross-examination he testified that all that he had said on his direct examination connecting Owens with the murders was untrue, and that he had so testified because Matthis had told him to so swear, and because he believed that by so swearing he could escape the gallows himself. On re-examination Lester again asserted the truth of the matters of fact which he had affirmed on his direct examination, claiming that he had sworn falsely on his cross-examination. He further admitted that he had sworn falsely in the trial of several of the other cases growing out of the murders, and that he had on divers occasions and to divers persons made false statements about the homicides. The records in the two cases against Owens were practically the same, although there are some minor differences, which are mentioned in the opinion of the court. The opinion was delivered in the case in which appellant was sentenced to death, but it was controlling in both cases. The instructions in the cases are sufficiently stated in the opinion.

Reversed and remanded.

Stephens & Stephens and McWillie & Thompson, for appellant.

Certainly no man ought to be convicted of any offense on such testimony as that of Lester. The representative of the state sought to help out Lester's testimony by proof of a previous threat, but the so-called threat was not a threat, and was made long anterior to the murder.

We confidently insist that the words of the accused, as given by the witness, Matthews, do not indicate that the former intended to do anything whatever, much less commit a crime against the lives of his fellowmen. Indeed, the words expressly negative the idea that he intended to resort to violence, and there is nothing in the evidence to show that anything had occurred to arouse his personal animosity against the revenue officers. If such expressions as that employed by the accused on the occasion in question are to be interpreted as threats, few of us can be said not to have threatened to commit crime. It was rather the expression of an opinion by one who knew the state of feeling of the lawbreakers against certain persons then in office who had so conducted themselves as to excite animosity. The resentment indicated may not have been directed against the Montgomerys in the least degree, so far as the defendant knew, or meant to declare. We do not doubt that many law-abiding men have said that as long as negroes continue to commit certain crimes there will be lynchings in Mississippi; but this does not by any means indicate an intention to participate in the lynchings, although unaccompanied by any disclaimer of such purpose. We do not deem it essential to controvert the decisions which hold that previous threats not directed against any particular person are admissible against one accused of homicide, although the proposition is by no means clear under the decisions of this court. Hinson v State, 66 Miss. 532. But we most earnestly contend that no court has ever admitted as threats previous declarations of the accused which did not include the idea that he intended to work ill to some one. Whether the language used is, in legal contemplation, a threat, is one for the court to determine, and the action of a lower court in excluding declarations relied on as threats has been approved by this court. Hinson v. State, supra.

In one case it has been held that a declaration of the defendant made three months prior to the homicide that he "intended to kill the next deputy marshal that arrested him" was improperly admitted as too remote and general to have any legitimate bearing on the issue. Stevenson v. United States, 86 F. 106. The deceased was a deputy marshal at the time of the killing in the case last cited, although the evidence tended to show that he was acting not as a deputy marshal, but as a constable. In the late case of Shaw v. State, 79 Miss. 21 (s. c., 30 So. 42), it was held to be error to admit evidence of threats made by the accused against the brother of the deceased seven or eight months prior to the homicide.

In the case at bar the accused never stated that he intended to kill any one. Moreover, fully twelve months had passed before the killing took place, and to the remoteness of intent, as gathered from the language used, is added the remoteness of time. This remoteness of time operates against the admissibility of the declarations not alone on the ground that the intention expressed may have been wholly abandoned in the meantime, but also with the lapse of time the recollection of witnesses as to the exact language used becomes more or less indistinct. In this very case the witness had to qualify his quotation of the language of the accused by saying that "as well as he could remember" certain words, or rather "about" certain words were used, and, in giving them twice, stated them differently. Where so much depends on the phraseology employed, testimony which shows that the witness is unable to give the words used should not go to the jury. If the witness had repeated a few more times what Owens stated, he might have so far changed his version of the language used as to have become a good witness for the defense.

The court below refused to charge the jury at the defendant's request, that if they believed that any witness had theretofore, or on the trial in progress, sworn falsely to any material fact in the case that they might disregard the testimony of such witness altogether.

On the state of case before the jury, the instruction was clearly correct and of the utmost importance to the accused. There is to be found no justification for the refusal of this instruction in the fact that in another instruction authorizing the jury to convict on the testimony of an accomplice, they had been told that they were the judges of the credibility of all the witnesses. The accused was entitled to have the jury instructed as to their right to disregard altogether the testimony of any witness who had sworn...

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33 cases
  • Owen v. State
    • United States
    • Mississippi Supreme Court
    • 14 d1 Dezembro d1 1936
    ...Cook v. State, 85 Miss. 738; Howell v. State, 98 Miss. 439; Blalock v. State, 79 Miss. 517; Wilkie v. Collins, 48 Miss. 496; Owens v. State, 80 Miss. 499. None the instructions given can take the place of the refused instruction. Gentry v. State, 108 Miss. 505. A motive is in general a cons......
  • Ex parte Marshall
    • United States
    • Mississippi Supreme Court
    • 17 d1 Abril d1 1933
    ... ... courts of Mississippi. From a judgment reinstating the ... petitioner, the Mississippi State Bar appeals. Judgment ... affirmed ... See, ... also, 160 Miss. 874, 134 So. 67 ... Affirmed ... J. H ... person on trial therein; and "we would be unworthy of ... the high places we hold" if we permitted it to enter ... there. Owens v. State, 80 Miss. 499, 516, 32 So ... 152, 155. As was said by Judge ETHRIDGE, when we assumed ... jurisdiction of the proceeding to disbar this ... ...
  • Dean v. State
    • United States
    • Mississippi Supreme Court
    • 27 d1 Maio d1 1935
    ... ... competency of a dying declaration is a question to be ... determined by the trial judge, in the absence of the jury, ... and the credibility and weight of such testimony, like any ... other testimony, is for the jury ... Lipscomb ... v. State, 75 Miss. 559, 23 So. 210; Owens v ... State, 59 Miss. 549; Simmons v. State, 61 Miss ... 257; Holly v. State, 55 Miss. 430; Ellis v. State, ... 65 Miss. 48, 3 So. 189 ... As a ... foundation for the admission of a statement as a dying ... declaration, it must be shown that it was made by decedent ... under ... ...
  • Dean v. State
    • United States
    • Mississippi Supreme Court
    • 8 d1 Abril d1 1935
    ... ... competency of a dying declaration is a question to be ... determined by the trial judge, in the absence of the jury, ... and the credibility and weight of such testimony, like any ... other testimony, is for the jury ... Lipscomb ... v. State, 75 Miss. 559, 23 So. 210; Owens v. State, 59 Miss ... 549; Simmons v. State, 61 Miss. 257; Holly v. State, 55 Miss ... 430; Ellis v. State, 65 Miss. 48, 3 So. 189 ... As a ... foundation for the admission of a statement as a dying ... declaration, it must be shown that it was made by decedent ... under a sense ... ...
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