Pickett v. State

• Decision Date: 08 June 1925
• Docket Number: 24554
• Citation: 139 Miss. 529,104 So. 358
• Court: Mississippi Supreme Court
• Parties: PICKETT v. STATE. [*]

104 So. 358

139 Miss. 529

PICKETT v. STATE. ^[*]

No. 24554

Supreme Court of Mississippi

June 8, 1925

(In Banc.)

1 CONSPIRACY. Homicide. Conspiracy may be shown by circumstantial evidence; evidence held sufficient to establish conspiracy to kill.

A conspiracy may be shown by circumstantial evidence as well as by direct evidence. The evidence in this case is sufficient to establish a conspiracy between the appellant and his brothers.

2 HOMICIDE. Persons committing felony, armed to resist arrest and not surrendering when called on by officers attempting to arrest them, cannot shoot even to defend their lives without first offering to surrender, regardless of whether officers fired first shot.

Where persons are engaged in the commission of a felony, and armed for the purpose of resisting arrest, and do not surrender when called upon to do so by officers seeking their arrest they cannot shoot even in the defense of their lives without first offering to surrender, and this is true even though the officers seeking the arrest may have fired the first shot. Tolbert v. State, 71 Miss. 179, 14 So. 462, 42 Am. St. Rep 454, cited.

3. CRIMINAL LAW. Evidence obtained at time and place of killing showing existence of moonshine whisky still, which was being operated, may be offered in evidence.

In a trial for homicide committed in resisting arrest while engaged in committing a felony, where the officers seeking to arrest had knowledge, or probable grounds for believing, that a felony had been or was being committed, evidence obtained at the place and time of the killing showing the existence of a moonshine whisky still, which was being operated, may be offered in evidence.

4. ARREST. Officer having knowledge or probable grounds for believing that felony is being committed may go on premises without warrant for arrest, and without search warrant, and arrest for felony.

Under such circumstances the officer may go upon the premises without a warrant for arrest, and without a search warrant, and make an arrest for a felony committed, which felony such officers had probable cause to believe was being committed or had been recently committed.

5. CRIMINAL LAW. Witness tendered to prove disqualifications of juror and committing perjury may be bound over to answer grand jury; binding over witness committing perjury, in absence of jury, is not error prejudicial to accused.

In impaneling a jury, where a juror has qualified, and it is sought to prove by another witness expressions by such juror prior to his being sworn, showing that he had formed and expressed an opinion, where such witness so tendered to prove such statements has manifestly committed perjury, the judge may have him bound over to answer the grand jury therefor; and where this is done in the absence of the jury, no error is committed prejudicial to the defendants.

6. HOMICIDE. Excluding evidence of indefinite, vague, or conditional threat offered by accused to show excuse for fleeing held not error.

It is not reversible error to exclude evidence of an indefinite, vague, or conditional threat offered by the defendant for the purpose of showing an excuse for fleeing after the commission of the homicide.

7. CRIMINAL LAW. Mere offer on part of district attorney to prove bad character of accused, who had not placed good character in evidence, held not reversible error.

A mere offer on the part of the district attorney to prove the bad character of a defendant on trial for a felony, where the defendant has not placed his good character in evidence, while improper, is not reversible error where the judge refused to permit such evidence.

8. WITNESSES. Person jointly indicted with accused, not on trial but testifying for accused, may be impeached by contradictory statements made by him as to commission of offense.

Where two or more parties are jointly indicted for the commission of a felony, and one not on trial testifies as a witness for the one on trial, he may be asked as to statements made by him while in jail as to the circumstances attending the homicide, and such statements, if voluntarily made, may be shown in contradiction of his evidence for the purpose of affecting his credibility as a witness, if such testimony, if given on the trial by such witness, would tend to establish the guilt of the defendant.

HON. C. C. MILLER, Judge.

APPEAL from circuit court of Lauderdale county, HON. C. C. MILLER, Judge.

Ben Pickett was convicted of murder, and he appeals. Affirmed.

Affirmed.

Wm. B. Lucas and Jacobson & Brooks, for appellant.

This entire case was tried upon the theory that Ben Pickett was making or assisting in the making of liquor. There was not the slightest evidence that this was a fact. Ben Pickett's presence at the still was accounted for by the owner and operator. Can it be said seriously that the record says to the contrary. The writer says confidently no.

The trial judge evidently believed it was a close case, because he permitted the introduction as evidence of the threats made by the prohibition officer, as well as his bad reputation for peace and violence. This is done under the law when there is doubt as to who was the aggressor. No serious consideration can be given this record and escape the idea that even from the state's side that it makes out a case of self-defense for the appellant.

The appellant's case overwhelms the state upon that contention, unless it is the law that Ben Pickett was not entitled to the benefit of self-defense on that occasion. Of course, if this is the law, that Ben Pickett, a disinterested spectator, had no right to protect himself when approached and fired upon, then it would be useless to argue further.

If we are correct that the case was of such a nature as to justify an acquittal under normal conditions, we feel now that we should seriously ask the court to reverse on the facts of this case; that is to say, to discharge the appellant in this court. At any rate the case is so close that manifest error is calculated to bring unjust and illegal results.

The fifth assignment of error is directed at the action of the court in requiring appellant to peremptorily challenge juror Wright when the court had information that Wright had said the appellant ought to be hung.

The seventh assignment of error is directed at the action of the court in holding an investigation in the courthouse regarding witness McDonald, who had advised appellant's attorneys involuntarily that juror Wright was disqualified.

In discussing these assignments of error, the court is advised that, from the very nature of things, public interest and excitement was at fever heat in Lauderdale county following the death of Cleveland. His body lay at the Undertaker's shop, the picture of the still where the shooting took place was exhibited in every public window of the city. It was the topic of the conversation in every nook and corner. It came to the writer's attention that Wright had expressed an unfavorable opinion as to appellant to the effect that he ought to be hung. Wright had been accepted the evening before. Upon getting information as to Wright's statement, after the appellant only had one peremptory challenge left, and after the motion was made to reopen for cause, and after witness McDonald had testified to that effect, and after a searching inquiry by the court, he, the witness, was held to await the action of the grand jury for perjury.

We were certainly entitled to twelve challenges, peremptory in their nature. We were certainly entitled to remove any juror for cause. It was shown that juror Wright had expressed an opinion that they ought to be hung. The court ignored this, and in order to get rid of him, we were required to exhaust our only remaining challenge upon him. We submit that this is one of the assignments of error that makes it imperative for this case to be reversed.

The eighth and ninth assignments of error complain of the action of the court in permitting the state, over appellant's objection to introduce in evidence and make profert of the same, certain whiskey stills, which it is alleged were taken from the scene of the shooting of Dan Cleveland by other witnesses after the shooting of Cleveland.

It must be borne in mind that there was not the slightest evidence in the record of any kind that Ben Pickett had any ownership, or any control in the operation of any whiskey stills. Yet, while he was tried for murder, the homicide growing out of his presence at his brother's whiskey still, the court overruled his objection, and permitted the state to bring such stills into the presence of the jury, and keep them during a thirteen-day trial in their presence and view all the time while they were considering the question of the guilt or innocence of Ben Pickett when he was defending the homicide case upon the ground that he was within his self-defense.

It may be argued that these stills should be introduced and considered as evidence, because of a conspiracy upon the part of the Picketts to kill Cleveland; yet, the record may be examined from one end to the other, and there is not the slightest evidence of any kind which even smacked of a conspiracy. The only connection of any kind that there might have been a conspiracy was in the testimony of Ebb Pickett while he was in the condemned cell of the Lauderdale county jail that he made a statement, not in the presence of Ben Pickett, to the effect that the still was owned by Ben Pickett and Clyde Pickett. This was a declaration after the alleged incident made by Ebb Pickett in the absence of Ben Pickett.

It is again argued and urged to the court that even if these stills belonged to Ben Pickett, they could not have been introduced in evidence, because...