Pulpus v. State

• Decision Date: 06 April 1903
• Citation: 82 Miss. 548,34 So. 2
• Court: Mississippi Supreme Court
• Parties: AUSTIN PULPUS v. STATE OF MISSISSIPPI

34 So. 2

82 Miss. 548

AUSTIN PULPUS v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

April 6, 1903

FROM the circuit court of, first district, Chickasaw county. HON EUGENE O. SYKES, Judge.

Pulpus appellant, was indicted, tried and convicted of murder, and appealed to the supreme court. The opinion of the court states the facts of the case.

Reversed and remanded.

T. J Buchanan, for appellant.

This case was the killing of a human being by another unaided or abetted by any one, but the state attempted to prove a conspiracy on the part of all the defendants and others to kill and murder the deceased. The evidence completely fails in this; there was not a word or act of the defendant that was not satisfactorily explained and shown to be inconsistent with the theory of the state.

While there has been some difficulty among the different authors and text writers on criminal law as to a definition of conspiracy broad enough to cover all cases, still, where the object is criminal, there is no conflict whatever.

It is manifest that the court erred in admitting the statement of Isaiah Gillespie in the case against the defendant; there having been no foundation aid by proof establishing or tending to establish the existence of a conspiracy or combination by him and the party on trial to commit the offense charged. Greenleaf lays it down, in terms, that the acts and declarations of conspirators and accomplices to be admissible in evidence must be confined to acts and declarations made or done "during the pendency of the criminal enterprise, and in furtherance of its object." 1 Greenl. on Ev., sec. 127; 3 Ib., 280, 233; Browning v. State, 30 Miss. 656; Ganad v. State, 50 Miss. 147. The court erred in admitting Wiley Gladney to testify to what Theo Wilson said the day before the killing, to the effect that he, Wilson, called him aside and asked him if defendant was not going to report the deceased for splitting his head open with the spade, when Wilson replied that "they would get him." This statement was made in the absence of defendant, and there was no evidence attempting to connect Wilson with the killing and no attempt to connect him with any conspiracy to kill the deceased.

Gilleylen & Leftwich, on same side.

Declarations of one of the conspirators are never admissible against the others unless the conspiracy has been established by other evidence. Spies v. People, 3 Am. St. Rep., 689; Wiggins v. Leonard, 9 Iowa, 194; Ford v. State, 112 Ind. 373; State v. Weaver, 57 Iowa 730.

Declarations made by one before the conspiracy begins are no more admissible than those made after it is passed. Mere historical statements of one are not admissible against others of the conspirators. Cox v. State, 8 Tex. App., 254; Everage v. State, 21 So. 404, 113 Ala. 102; Brunson v. State, 27 So. 410, 124 Ala. 87; Cryer v. State, 71 Miss. 467.

One person cannot be connected with a conspiracy by the declaration alone of a third person. Ford v. State, 112 Ind. 373, 383.

The admission of Wilson's declaration, if he were on trial, would be another question. But such evidence is confusing to the jury and damaging to the defendant. There is no evidence at all as to whom Wilson had in mind when he said "they were going to get him." Anderson was being talked about, which might identify "him," but who "they" were who were going to get "him" is nowhere disclosed. The statement is entirely too indefinite to bind defendant. Res inter alios acta alteri non debet.

To show a conspiracy there must be proof that more than one person is guilty of complicity in the killing. Mere presence is not enough. Hairston v. State, 54 Miss. 689; Spies v. People, 3 Am. St. Rep., 689.

This declaration of Wilson was admissible, if at all, owing to its indefiniteness against him only. Brunson v. State, 27 So. 410; McAlpin v. State, 23 So. 130.

The giving of charge No. 2 is manifestly error. This charge is condemned three times in one volume of reports of this court. Smith v. State, 75 Miss. 542; Patterson v. State, 75 Miss. 670; Fore v. State, 75 Miss. 727.

It is again condemned in Lofton v. State, 79 Miss. 734. It is rightfully in disrepute. It outlaws a defendant charged with crime in the courts of his country. It estops him from setting up the constitutional right of self-defense. It betrays a manifest effort of district attorneys overzealous to charge defendants into the penitentiary and onto the gallows. There may be cases in which this charge is proper, but they are exceedingly rare, and so delicate are the rights invaded by it that it must be exact in the statement of facts and to stand the evidence must support every word of it. Specifically this charge in this case is open to several fatal objections.

First. There is no evidence in the record that Austin Pulpus was hunting George Anderson to kill him.

Second. This charge, by the language, "armed with deadly weapon provided for the purpose," assumes as proven and as a fact what is not proven at all, we say, certainly it is a fact hotly controverted in the evidence.

This was error. Myrick v. Wells, 52 Miss. 149; Hogan v. State, 46 Miss. 274; Ledbetter v. State, 61 Miss. 22; Brown v. State, 72 Miss. 997; Smith v. State, 75 Miss. 542; Coleman v. Adair, 75 Miss. 660; Fore v. State., 75 Miss. 727.

Third. The charge assumes it to be proven that "when he (Pulpus) found Anderson he provoked a difficulty with Anderson, or was the aggressor in a difficulty in which he killed Anderson." This is also a groundless assumption.

Fourth. The charge is fatally erroneous in assuming that the killing under the facts stated would have been murder in any event. Such is not the case. The purpose to kill must be retained up to and through the difficulty. Long v. State., 52 Miss. 23; Lofton v. State, 79 Miss. 734; Cannon v. State, 57 Miss. 154.

The court allowed the district attorney to prove that Arthur Orr, indicted in the same true bill with defendant on trial, was under bond and was out of the state and had defaulted at the time of trial. This was manifestly error. Pulpus could not be responsible for the conduct of his codefendants. Pulpus not only went to Okolona and surrendered himself to the sheriff; he was released under bond and was present for trial. Even on the conspiracy theory one defendant, or conspirator, cannot be held responsible for the conduct of another after the supposed conspiracy is ended.Spies v. People, 3 Am. St. Rep., 487, and cases there cited.

William Williams, attorney general, for appellee.

[The reporter has been unable to find the brief of the attorney general.]

OPINION

CALHOON, J.

The defendant and Alex Pulpus and Arthur Orr were jointly indicted for the murder of George Anderson. At the next term, Isaiah Gillespie was separately indicted for this same offense. We have only to do with the case of Austin Pulpus, who was separately tried. This defendant and George Ander? son, on the day preceding the homicide, were engaged as laborers in ditching, when some difficulty occurred between them, and Anderson struck him on the head with a spade, inflicting a bad scalp wound. After the blow Anderson threatened to kill Austin Pulpus. Only these two were engaged in this trouble. Austin Pulpus went to a doctor and had his head shaved and wound sewed up, and there is no evidence to show a conspiracy between Austin Pulpus, Alexander Pulpus, Arthur Orr, Isaiah Gillespie, Jesse Wilson, and Fee Wilson to perpetrate the homicide, but the evidence of conspiracy, if there be any such, is exceedingly unsatisfactory. On the night of the day when the blow with the spade was inflicted on the defendant, he armed himself with his father's pistol, as he says, for the purpose of being in condition to defend himself if Anderson undertook to carry out his threat.

All of the persons mentioned, including defendant, were at Joseph Randle's house on the next morning, which was the day on which the homicide was committed. The most of them had rabbit sticks, and say they hunted rabbits as they came through the fields. George Anderson was at...