Pittman v. State

• Decision Date: 13 June 1927
• Docket Number: 26294
• Citation: 147 Miss. 593,113 So. 348
• Court: Mississippi Supreme Court
• Parties: PITTMAN v. STATE. [*]

113 So. 348

147 Miss. 593

PITTMAN v. STATE. ^[*]

No. 26294

Supreme Court of Mississippi

June 13, 1927

(Division A.)

1. CRIMINAL LAW. If all instructions fully and fairly state law:, court will not reverse, though instructions considered separately are subject to criticism.

All instructions, both those granted to state and defendant, must be considered together, one as supplementing, modifying, and explaining another, and, if, when so considered, instructions fully and fairly state law applicable to fact's in evidence, court will not reverse, though instructions considered separately may hot be free from criticism.

2. CRIMINAL LAW. Statement of district attorney referring to widow and1 broken heart of deceased's mother and to defendant's counsel trampling on bloody clothes of deceased held not to require reversal.

In prosecution for murder, remarks of district attorney in closing argument, requesting conviction because defendant had made deceased's wife a widow and had broken the heart of his old mother, and referring to defendant's counsel trampling on bloody clothes of deceased, held not to require reversal.

3. CRIMINAL LAW. Trial judge's action on motion for new trial filed after adjournment, is not properly part of record on appeal.

Any action of trial judge after adjournment of term in reference to motion for new trial filed thereafter was of no effect and is not properly part of record on appeal.

4. CRIMINAL LAW. Defendant cannot complain that court adjourned term without opportunity to present motion for new trial where counsel did not request delay therefor.

Defendant in murder trial cannot complain on appeal that court adjourned term without opportunity to present motion for new trial, where verdict was returned into court in presence of able associate counsel, and record fails to show that there was any request for delay in order to enable them to present such motion, or that court was given any indication that they desired to present it.

5. Courts, Trial court had power to extend term to conclude murder trial, notwithstanding time for court to convene in another county (Hemingway's Code, section 729).

Under Code 1906, section 1009 (Hemingway's Code, section 729) judge of circuit court had power to extend term for purpose of concluding trial of murder case, begun during term and not concluded by time fixed by law for expiration thereof notwithstanding that court was supposed to convene in another county of same district.

Division A

APPEAL from circuit court of Forrest county.

HON. R. S. HALL, Judge.

Hardin Pittman was convicted of murder, and he appeals. Affirmed.

Judgment affirmed.

Paul B. Johnson and J. E. Davis, for appellant.

James W. Cassedy, Jr., Assistant Attorney-General, for the State.

Argued orally by Paul B. Johnson, for appellant, and Jas. W. Cassedy, Jr., for the state.

OPINION

COOK, J.

The appellant, Hardin Pittman, was convicted in the circuit court of Forrest county on a charge of murder, and was sentenced to the state penitentiary for life, and, from this conviction and sentence, he has prosecuted this appeal.

In the city of Hattiesburg, Front and Pine streets are parallel, and intersect Main street at right angles, with one block intervening between them. The Carter building is located at the corner of Front and Main streets, and the Davidson building is located in the same block and at the corner of Main and Pine streets, both buildings fronting on Main street. O'Ferrall Bros.' store is located about the center of this block and also fronts on Main street. The fatal encounter occurred on the Pine street side of the Davidson building a short distance from the corner of Main and Pine streets, and the facts as detailed by the state's witnesses are, in substance, as follows:

On Saturday night, while many people were on the streets of the city of Hattiesburg, the deceased, Stuart Havens, with two companions, left the Gem Restaurant on Front street and walked toward Main street. Before reaching Main street they met the wife of the deceased, and the four persons walked on together to the corner of Front and Main streets, and there turned up Main street in front of the Carter building. At that point they passed the appellant and his companion, Ray McKinney, and as they passed these parties Mrs. Havens remarked, "It is raining, and the awnings are not down." The appellant then said, "No; they are not down; but we will have them put down for you, Sugar." Thereupon Havens said to Pittman, "Do you know who you are talking to? This is my wife you are talking to." Pittman then replied, "I haven't said a damn word to your wife." The deceased and his companions then proceeded up the street, and the appellant and his companion followed them. About in front of the O'Ferrall store the appellant said, "I am not scared of any son of a bitch in Hattiesburg." The deceased then said, "Don't use that language before my wife; get ahead;" and thereupon he caught the appellant by the shoulder and pushed him ahead of them. When they arrived at the Davidson corner they all stopped, and the appellant said, "This is as far as I am going;" and the deceased then told him to go on down the street. The appellant replied, "I don't have to," and thereupon the deceased pushed him around the corner. When they got around the corner on Pine street, the appellant's companion said to the deceased, "I don't believe you have got any damn wife;" and then said, "I will admit I am in the wrong, let's shake hands and be friends;" and the deceased replied, "All right." Mrs. Havens then came around the corner and asked her husband to go with her, and they returned to the front of Davidson's store.

Some controversy then ensued between the appellant and Barlow and Cochran, and the appellant said that he was not afraid of any man in Hattiesburg, and that he wanted to fight, and thereupon pulled off his coat. Cochran then stepped up, and said, "No; you can't whip me; I can whip any two of you; and if you want to fight, fight me;" and thereupon he pulled off his coat and caught the appellant by the front of his shirt. The appellant then said, "If you will turn me aloose, I will go on." Cochran then turned him loose, and the appellant walked ten or twelve feet down the Pine street sidewalk. The deceased saw this disturbance through the glass front of the Davidson building, and said to his wife, "This is my affair, and I am going back around there;" and then he pulled off his coat and proceeded around the corner, saying, "I thought you had dropped this." The appellant then came back to Havens and struck him, and then Havens struck at the appellant, and they clinched and fell to their knees, fighting. In a very short time they both got up, and Havens leaned against the wall of the Davidson building, being very bloody. Air this moment a witness, McSwain, stepped between these parties, and then the appellant reached around McSwain and struck the deceased one blow in the stomach. Havens then sank to the sidewalk, and died before he could be removed to a hospital in an ambulance, which was immediately called. The deceased was stabbed twice in the back, once in the abdomen, just below the belt, and once in the leg; the latter wound severing the femoral artery and vein, and being the immediate cause of his death. None of the witnesses knew that the appellant had a knife until the altercation was practically over. One witness testified that, when the appellant started toward Havens, he saw him (the appellant) put his hand into his pocket and draw it therefrom, but he did not see a knife in the hand. There was testimony to the effect that after the difficulty the appellant proceeded down Pine street to the offices of the Western Union Telegraph Company, having the knife in his hand.

The version of the affair, as testified to by the appellant and his witnesses, is, in substance, as follows:

That the appellant said nothing to Havens or any one in his party when they were in front of the Carter building; that Havens there walked up to the appellant, and said, "I want you to stop flirting with my wife;" and he replied "What are you talking about? I've not said anything to your wife;" that Havens replied, "Get on down the street;" and then pushed, kicked, and cursed him, and required him to proceed ahead of Havens' party to the Davidson corner; that the deceased there had an altercation with a Mr. Crowe about some one trying to flirt with his wife; that Mrs. Havens came to them and carried her husband back to the front of the Davidson building; that the altercation between the appellant and a third party then occurred, and that he told this party he did not want any trouble, and would go on down the street if he would turn him loose; that the deceased then again appeared on the scene and struck the appellant; that a friend of the appellant then caught him by the arm and started down the street with him, when Havens jerked this friend off the sidewalk and again struck the appellant; that he then fell to his knees with Havens; that Havens was striking him in the face and choking him, and then Cochran also jumped on him and caught him by the neck; that he then got out his knife and began cutting at his assailants; that during the struggle one of his assailants caught his hand and twisted the knife out of it, and in doing so cut his (the appellant's) hand severely, and he did not...