Rich v. State

• Decision Date: 17 January 1921
• Docket Number: 21534
• Citation: 86 So. 770,124 Miss. 272
• Court: Mississippi Supreme Court
• Parties: RICH v. STATE

86 So. 770

124 Miss. 272

RICH v. STATE

No. 21534

Supreme Court of Mississippi

January 17, 1921

1 HOMICIDE. Details of previous disconnected difficulty inadmissible. Details of a previous disconnected difficulty between the parties are inadmissible in the trial of the subsequent offense.

2. CRIMINAL LAW. Threats made by conspirator out of presence of accused inadmissible before conspiracy is established.

In joint indictment for murder, threats made out of presence of accused by coconspirators before conspiracy is established are inadmissible against accused.

3 HOMICIDE. Conspiracy instruction erroneous when not supported by evidence.

It is error for the court to grant a conspiracy instruction when the evidence is insufficient to support it.

HON. R S. HALL, Judge.

APPEAL from circuit court of Perry county, HON. R. S. HALL, Judge.

Sam Rich was convicted of murder, and he appeals. Reversed and remanded.

Judgment reversed and case remanded.

Wells, Stevens & Jones, for appellants.

In our original brief we overlooked citing and calling to the attention of the court Gillum v. The State, 62 Miss 547, the case cited with approval in Harper v. The State, 83 Miss., which we are very much relying on and which we have discussed in our original brief. In the Gillum case this court said:

"The threats and declarations of Thomas and Harry Gillum not made in the presence of the defendant should not have been admitted against him. After a conspiracy has been established by evidence aliunde, the declarations and acts of each conspirator in the furtherance of the common design are admissible against all, but it is necessary that such acts and declarations be shown to have been made or done in the prosecution of the common purpose. They are admissible as parts of the res gestae, and declarations or admissions which are not themselves acts and do not illustrate or interpret contemporaneous acts do not partake of the nature of res gestae, and are inadmissible against any others save those by whom they are made. 1 Phillips on Ev., 205; Wharton on Criminal Evidence. sec. 698. The threats and declarations of Thomas and Harry Gillum which were proved against the defendant were none of them made while the parties were engaged in any attempt to kill or injure the deceased."

Tested by the Gillum case the statement of Hardee Dykes as testified to by Mrs. Kyser, to the effect, "I ought to have killed the son of a bitch," is thoroughly incompetent was not a part of the res gestae, was not a declaration in furtherance of any design to commit murder out on the highway, and the statement could only operate to inflame the minds of the jury against all the defendants, including Sam Rich. Tested by this decision the declaration made out of the presence of Sam Rich, could in no wise bind Sam Rich, and was incompetent. It was a very inflammatory statement. And so each of the statements complained of in our original brief is condemned by the Gillum case as also by the Harper case. We emphasize the language of the Harper case.

It is clearly not the law that a bystander or one who goes with another person upon a lawful mission or at least without any criminal intention on his part, can be found guilty of murder without affirmative proof of some word of encouragement spoken or offered, or act committed, on his part evincing a desire to participate in the killing.

Assuming that the testimony of Harvey Dykes and Bruce Edwards is true, a conclusion which cannot be escaped then Sam Rich cannot possibly be guilty of murder without the case for the state being tested by this language of the Harper case, and the instruction which we complain of did not give Sam Rich the benefit of this law. It does not require that the jury must believe he was present with malice, ready, able and willing to render some assistance.

In State v. Cox, 65 Mo. 29, quoted in the footnotes to the First Ed. of the American and English Encyclopedia of law, footnote 1, page 453, an instruction attempting to authorize the conviction of defendant for murder in the first degree where he was simply present as an aider or abettor was condemned. The material portion of the instruction and the criticism in the footnotes is as follows:

"The mere mental approval by a bystander of a murder committed in his presence does not make him an accomplice in the murder; and where the judge at trial charges as follows: That it is not necessary for the state to prove that the defendant by his own hand shot and killed the deceased; for if he was present, aiding or abetting, or counselling, or advising or inciting, or encouraging, or approving of some other persons in shooting and killing the deceased, he is guilty of murder in the first degree, it was held, error; the court saying: if an explanation of the term aiding and abetting as used in our statute, or in the common law definition of an accomplice, should be deemed necessary, it is proper that the explanatory terms used should convey a correct idea of the meaning of the offense. The court probably did not mean to hold that the mere mental approval by a bystander of a murder committed in his presence would make such bystander a principal in the murder, yet the use of the disjunctive "or" between the various terms employed to describe, the crime of an accomplice, necessarily leads to this interpretation of the instruction. The words "or approving of" have no place in legal phraseology to explain the meaning of the words 'to' and 'abet.' The fact itself is incapable of proof. Mental operations, not accompanied with any action or language, are beyond the reach of testimony. There was no necessity for the introduction of these words in the instruction, and they may not have misled the jury, but when a party is on trial for his life, he is entitled to a correct exposition of the law touching his case."

It has always been the law that mere presence or even a mental approval of a crime does not make one a participant and guilty of himself committing the crime. Mr. Blackstone lays down the proposition that mental approval or a failure to make any attempt to prevent a homicide, or chase or make an outcry against the guilty person, cannot be charged up against the person and is no evidence of his guilt. We believe that the second theory of the state was a theory of the state's case improperly submitted to the jury and is responsible for appellant's conviction. Even a conspiracy to go into the town of Richton and whip Virginius Walley would not be a conspiracy to kill Milstead, and after the street fight in Richton any conspiracy to whip Walley would be at an end. But we say this without in any wise conceding that Sam Rich was a party to any plan or purpose to whip Walley. His presence in Richton was without any pre-arrangement or understanding, and his presence and acts at and during the street fight are consistent with innocence and good faith. We have an abiding faith in his innocence. If he is given a new trial he will be exonerated. His fate is with the court, and his hope is in the court.

Wm. Hemingway, for appellee.

The admission of the details of the fight previous to the killing is complained of by appellant but at the same time the threats which were said to have been made by Milstead and Walley, which occurred after the first fight, are urged by appellant as excuse for carrying a gun as a self-defense. In other words, the appellant desired to select the part of the evidence to be admitted and to use only those details which are to his advantage. These details were admissible. Shields v. State, 87 Miss. 429, 39 So. 1010; Brown v. State, 87 Miss. 800, 40 So. 1009; Clemons v. State, 92 Miss. 244, 45 So. 834; Lucas v. State, 109 Miss. 82, 67 So. 851.

If the evidence of the first difficulty had not been admitted, then there would have been no defense and the court must have regarded the testimony of the two men who claimed they did the shooting as pure fabrications. They appear to be very weak in some points; the expression "I don't know," occurs frequently in answering questions on material points.

The state did not change its theory of the case. It had direct testimony against Sam Rich and the co-defendants having presented a different matter and claiming that others fired the shots, the state had to meet this defense.

Instructions. The state only asked two instructions; one on this evidence, the other on the evidence presented by the defense. It is the law that instructions must be based on the evidence, and where there is evidence to support an instruction it cannot be refused. Defendant cannot introduce evidence, then claim that an instruction as based on that evidence, is erroneous, and charge the state with having shifted its attack. It would be very gratifying to defendant not doubt, to base this case on the testimony of Dykes and Edwards. He admitted they did the killing, but by what reason does defendant exclude from the consideration of the court the testimony of Mr. and Mrs. Walley. It should be noticed that all of the material statements of defendants are contradicted at some time by some person, and their testimony should be very carefully scrutinized.

The Harper case, 83 Miss. 402, is not in point here for the reason that it is uncontradicted that Harper did not do any shooting, while in this case it is fully asserted that Sam Rich did the shooting.

Conspiracy. The details of the fight was a conspiracy. All of the defendants were on the scene. Each one discharged a certain part of the difficulty. Sam Rich knew that something was going to happen, as stated in the Anderson Mercantile Company's Store. He walked down the street with the others when they approached Walley. When Dykes became afraid of the knife in Walley's...