Powell v. State

• Decision Date: 06 December 1926
• Docket Number: 26056
• Citation: 110 So. 515,145 Miss. 252
• Court: Mississippi Supreme Court
• Parties: POWELL v. STATE. [*]

110 So. 515

145 Miss. 252

POWELL v. STATE. ^[*]

No. 26056

Supreme Court of Mississippi

December 6, 1926

Division B

APPEAL from circuit court of Neshoba county, HON. G. E. WILSON Judge.

Irvin Powell was convicted of murder, and he appeals. Affirmed.

Judgment affirmed.

Richardson & Pierce and Wells, Stevens & Jones for appellant.

I. It was error to deny appellant the right to show the circumstances under which the threats were uttered and in excluding the details and circumstances.

This court has uniformly ruled that uncommunicated threats are admissible wherever the evidence tends to prove that the deceased was the aggressor. Johnson v. State, 64 Miss. 430; Beauchamp v. State, 128 Miss. 523; Guice v. State, 60 Miss. 714; Hawthorne v State, 61 Miss. 749; Johnson v. State, 66 Miss. 189; Bell v. State, 66 Miss. 192; Prine v. State, 73 Miss. 838; Leverett v. State, 112 Miss. 394; Clark v. State, 123 Miss. 147; Mott v. State, 123 Miss. 729.

The only requirement is that the testimony be doubtful on the question as to who is the aggressor in the fatal encounter. The true rule is stated in Mott v. State, 123 Miss. 729; Ency. of Evidence, 795; Moorman v. State, 109 Miss. 848, 69 So. 1000; Hardaman v. State (Ala.), 81 So. 449.

The court here did permit evidence of the naked threat without the attending circumstances. As a matter of fact, Mr. Meeks testified to two threats, in one of which something was said about a knife; but counsel for the defendant had been admonished that the testimony was incompetent and therefore any testimony by Meeks was chopped to pieces in such a way that much of its convincing force was lost. Under the authorities cited, the court should have permitted the admission of the full conversation between Meeks and the deceased. In doing so, the circumstances of the threat and the motive of the deceased would have been shown and, furthermore, Mrs. Powell would have been corroborated in her testimony. The exclusion of all these circumstances and the full conversation was clearly reversible error.

II. Other corroborating circumstances were wrongfully excluded. The court excluded evidence that a search was made for tracks and rejected the offer of the defendant to show the tracks of Cumberland leading to and from the Powell home. This action of the court in connection with its wrongful action in excluding the admissions of Cumberland that he did make the trip and the full conversation which he had with Meeks in reference thereto, taken together, constitute reversible error. They were all a part of one transaction showing the relation of the parties, the frame of mind of Cumberland and his feeling toward the defendant, the threats growing out of these transactions. They are corroborative of the main fact at issue, that is the state of mind, motive and attitude of the deceased. Moorman v. State, supra; 1 Wigmore on Evidence, page 390; 30 C. J., page 239.

III. It was error to admit the testimony of Dr. Yates and Dr. Watkins, expressing their opinion as to the probe of the bullet wounds and as to which wound was the fatal wound, etc. In a close case on conflicting testimony, discussions by physicians along this line constitute reversible error. It was for the jury to determine from all the testimony every material fact in the case.

J. A. Lauderdale, Assistant Attorney-General, for the state.

I. It was not error to deny appellant the right to show the circumstances under which the threats were uttered and to exclude the details and circumstances.

This assignment of error cannot be sustained for the following reasons:

(1) No exceptions were reserved to the ruling of the court in sustaining the objections made by the district attorney. Spivey v. State, 58 Miss. 743; Flemming v. State, 60 Miss. 434; Hardeman v. State, 16 So. 876; Thomas v. State, 103 Miss. 800.

(2) The defendant did not again offer the testimony when the jury returned to the court room.

(3) Even though the trial court erred in excluding a part of the testimony with reference to these threats, it was harmless because the court admitted four other separate and distinct threats, three of which were made after the one excluded and this testimony would have been merely cumulative. The defendant got the full benefit of the testimony that Cumberland had threatened Powell and that these threats were made in connection with Cumberland's alleged treatment of Powell's wife.

(4) The defendant was also permitted to testify in detail as to the alleged threats and to the statements made to him by his wife and Meeks as to Cumberland's statements with reference to the alleged occurrence on July 29.

II. Other "corroborating" circumstances were rightfully excluded. Where an overt act is shown to have been committed by the deceased against the defendant, it is permissible to prove a previous difficulty, who the aggressor was, and threats made at that time, but it is never permissible to prove the details of a previous difficulty. Hardy v. State, 108 So. 727; Clemens v. State, 92 Miss. 244; Reed v. State, 62 Miss. 405; McCoy v. State, 91 Miss. 257.

The court went further than it was warranted in going in permitting the defendant to prove the details of the alleged conduct of Cumberland and it certainly denied the defendant no substantial right in denying him the right to go into the proof with reference to this alleged occurrence as if Cumberland was being tried for an attempt to rape.

III. It was not error to admit the testimony of Dr. Yates and Dr. Watkins expressing their opinion as to the probe of the bullet wounds and as to which wound was the fatal wound, etc.

Both Dr. Yates and Dr. Watkins were qualified as experts and it was permissible for them to state their opinions with reference to the wounds inflicted on deceased by appellant. These physicians could have been required on cross-examination, if the defendant had so desired, to state the physical facts in order that the jury could draw their own conclusions. However, this was not done.

The testimony in this case overwhelmingly makes out a case of cold-blooded, deliberate murder; there are no errors in the record; and the judgment of the trial court should be affirmed.

Richardson & Pierce and Wells, Stevens & Jones, in reply, for appellant.

The position of the attorney-general that counsel must not only object to testimony and reserve an exception, but must make an affirmative motion to exclude, is a highly technical position and one, we submit, not justified by the present method of noting the evidence through a stenographer who is a bonded officer of the court. In fact, it is the rule of practice in many of the districts that the stenographer is expected to note an exception to any ruling of the court where the objection is made and this has become the general practice where court stenographers are used.

We repeat again that the details of the conversation between Meek and Cumberland in the woods were excluded although the court permitted Meeks to testify to a naked threat without examining the witness or going into the details, and the court will observe that Meeks was not even permitted to state what trip he adverted to in attempting to tell about the trip.

The authorities cited by opposing counsel, that it is never permissible to prove the details of a previous difficulty, have no application here. There was no previous difficulty, strictly speaking, between Cumberland and Powell.

Counsel attempts to justify the testimony of the physicians on the ground that they qualified as experts. We submit that Doctors Yates and Watkins were not put on the witness stand as experts and did not undertake to qualify as such.

Argued orally by J. M. Stevens, for appellant, and J. A. Lauderdale, Assistant Attorney-General, for the state.

OPINION

HOLDEN, R.J.

Irvin Powell appeals from a conviction and a life sentence for the murder of Harve Cumberland. Reversal is sought on several grounds, but we see no merit in any of them, except one, and that is whether the lower court erred in refusing to permit the introduction of certain testimony, offered by the accused, in regard to the details of a conversation between the witness Meeks and the deceased, wherein the deceased had threatened the life of the appellant in connection with an attempted assault upon the wife of appellant about three months before the homicide. This is the only point presented on the appeal that merits discussion, and we shall determine this question after briefly stating the facts of the case, which are as follows:

During the morning of October 24, 1925, Harve Cumberland was standing on the sidewalk in the peaceful town of Philadelphia, talking to a friend. A crowd of people was on the sidewalk and in the streets near him. He had on a white...