Reece v. State

• Decision Date: 07 October 1929
• Docket Number: 27939
• Citation: 154 Miss. 862,123 So. 892
• Court: Mississippi Supreme Court
• Parties: REECE v. STATE

123 So. 892

154 Miss. 862

REECE v. STATE

No. 27939

Supreme Court of Mississippi

October 7, 1929

Division A

1 HOMICIDE. Defendant's guilt of murder held for jury.

In prosecution for murder, defendant's guilt of murder held for jury.

2 HOMICIDE. Evidence held to sustain conviction for murder rather than manslaughter.

In prosecution for murder, evidence held sufficient to sustain conviction for murder, as against contention that crime, if any, was only manslaughter.

3. CRIMINAL LAW. Credibility of witnesses and weight of evidence was question for jury.

Credibility of witnesses and weight of evidence was question for jury, and appellate court could not disturb jury's decision thereon.

4. CRIMINAL LAW. Testimony, not objected to, that witness "reckoned" scene of difficulty was in P. county, held sufficient to establish venue.

In murder prosecution, in which witness was asked whether a man drove up by scene of difficulty as witness ran away, and was then asked, "What county was that in?" and answered, "Prentiss, I reckon," such testimony held sufficient to establish that crime was committed in Prentiss county, where evidence was not objected to and was uncontradicted, since word "reckon," used as a colloquialism, is often used to indicate the best judgment of the party using the expression.

5. WITNESSES. Right of cross-examination, although it should not be abridged, should be kept within limits confined to issue then on trial.

Right of cross-examination, although it should not be abridged, should be kept within limits confined to issue then on trial.

6. CRIMINAL LAW. In murder prosecution, court's remarks that comparison of rocks was not matter of expert testimony, and his interrupting question to witness, to which answer would have been incompetent, held not to show judge assumed partisan attitude.

In murder prosecution, court's remark, when witnesses were asked to make comparison of rocks that comparison of rocks exhibited was not matter of expert testimony, and his action, when sheriff was asked what defendant said in conversation with sheriff at time of arrest, in interrupting with remarks, "Wait a minute, B. is here in court doing his own testifying, you know," where it later developed that conversation sought to be elicited was self-serving and incompetent, held not to show court assumed partisan attitude on behalf of state.

7. HOMICIDE. In murder prosecution, evidence of uncommunicated threat held inadmissible, before evidence showing self-defense was offered.

In murder prosecution, evidence regarding uncommunicated threat held inadmissible, where no evidence tending to show self-defense had been admitted.

8. CRIMINAL LAW. In murder prosecution, error could not "be predicated on exclusion of answer to question regarding threat, where record did not show what answer would have "been.

In murder prosecution, error could not be predicated on exclusian of answer to question regarding uncommunicated threat by deceased, where record did not disclose whether any threat would have been testified to by witness, had he been allowed to answer, and record did not show what answer would have been.

9. HOMICIDE. In murder prosecution, testimony of deceased's wife regarding why she separated from deceased held properly excluded.

In murder prosecution, court properly excluded testimony by deceased's wife regarding reason which caused her to separate from deceased several days before murder.

HON. C. P. LONG, Judge.

APPEAL from circuit court of Prentiss county, HON. C. P. LONG, Judge.

Bert Reece was convicted of murder, and he appeals. Affirmed.

Affirmed.

Lacy & Lacy, of Booneville, for appellant.

Where the jury was prejudiced against the defendant by circumstances that ought not to have been considered in the case, a new trial should be had.

Brown v. State, 121 So. 297; Jones v. State, 54 So. 724; Pigott v. State, 65 So. 583.

The question of venue is jurisdictional and can be raised at any time.

Pickle v. State, 102 So. 4; Cagle v. State, 63 So. 672; Quillen v. State, 64 So. 736; Monroe v. State, 60 So. 773; Brasham v. State, 106 So. 280; Evans v. State, 108 So. 725; Heidleberg v. State, 118 So. 624; Dodson v. State, 118 So. 626.

Court should not attempt to whittle away the rights of defendants upon trial for their lives. Every ruling should resolve any doubt in favor of the accused.

Brown v. State, 40 So. 737.

Where in a prosecution for murder, there is a conflict of evidence as to who commenced the difficulty, previous threats made by deceased should be admitted.

Where a part of a statement of witness is introduced by the state, the whole of the statement should be admitted.

Brown v. State, 40 So. 737.

Hardy R. Stone, Assistant Attorney-General, for the state.

If a party enters into a mutual combat dangerously armed and under an undue advantage and kill his adversary, it is murder.

Price v. State, 36 Miss. 531; Long v. State, 52 Miss. 23.

In a murder trial where there was no conflict in the testimony as to who was the aggressor, previous threats by the deceased were not admissible.

Beauchamp v. State, 128 Miss. 523.

Self serving declarations by the defendant in a murder trial are not admissible in evidence.

Richardson v. State, 123 Mass. 233.

OPINION

MCGOWEN, J.

The appellant, Bert Reece, was indicted by the grand jury of Prentiss county, convicted by the jury, and sentenced to serve a term of life imprisonment in the state penitentiary. From the conviction and sentence, appeal is prosecuted to this court.

Reece was indicted for the killing of Clovis Cooper, his brother-in-law, the deceased having been stabbed eleven times, according to the state's evidence, with what is termed a "watermelon" Barlow knife. We shall detail such facts as we deem material, as we take up the several assignments of error presented here.

First. Appellant insists that the verdict was contrary to the evidence, and that at all events the offense could not have been murder--only manslaughter, if any crime at all. This is a record of many pages, and we shall not undertake to detail all of the evidence; but Dee Cooper, an eyewitness, testified that, at a time when the deceased and his wife and other members of the Reece family were quarreling, Bert Reece, the appellant, came upon the scene, approached the deceased, and struck him a blow, and cut him with the knife just above the abdomen in front, and thereupon Cooper caught the hand in which the knife was held. While they were standing in that position Mrs. Reece, the mother of the appellant, ran up to the deceased and struck him over the head with a piece of timber, which caused the deceased to release his hold upon the arm which held the knife of the appellant, and thereupon the appellant continued to cut the deceased. The five members of the Reece family, including appellant, testified that the deceased was the aggressor, had invited the difficulty, and was undertaking forcibly to carry away the baby of their sister Alma and the deceased. The sister Alma and the deceased had separated some weeks before, and the contention of the state was that the deceased visited the Reece home for the purpose of seeing his baby. There is contradiction in the record as to whether he asked for his baby, and the mother voluntarily surrendered the baby to the deceased, or whether he forcibly took it from her arms; at any rate they walked together some five hundred or six hundred yards down the road, and then came back to within sixty yards of the Roberts home, but they were in the road, and could not be seen from the Roberts home, according to the testimony of Mr. and Mrs. Roberts.

The appellant testified that the deceased had him on the ground and had choked him, and that he cut him in order to "get him off of him." The other members of the family were very indistinct in their recollection of the precise manner of the cutting. There was evidence that the deceased had a small rock in his pocket, and Roberts, their neighbor, testified that after he heard a blow a rock came over the bank and weeds.

We have detailed evidence sufficient to show that there was a sharp conflict, and that it was a question for the jury, as to how the difficulty arose, who was the aggressor, and, if the witness Dee Cooper was believed by the jury, then the state made out a case of murder. The credibility of the witnesses and the weight of the evidence is essentially a question for the jury, which we cannot disturb. We have announced this rule many times, and it is unnecessary to again collate and cite the cases so holding, a number of which we have cited on the same proposition in the case No. 28230, Tom Steward v. State, 154 Miss. 858, 123 So. 891, this day decided.

Second. The appellant urges that this case should be reversed because the state failed to prove the venue. The state witness, Dee Cooper, was asked...