Robinson v. State, 41089

• Decision Date: 26 January 1959
• Docket Number: No. 41089,41089
• Citation: 108 So.2d 583,235 Miss. 100
• Parties: Henry ROBINSON v. STATE.
• Court: Mississippi Supreme Court

Page 583

108 So.2d 583

235 Miss. 100

Henry ROBINSON v. STATE.

No. 41089.

Supreme Court of Mississippi.

Jan. 26, 1959.

Jack M. Greaves, Josephine Hood, Canton, for appellant.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., for appellee.

LEE, Justice.

Henry Robinson was indicted for, and convicted of, the murder of his wife, Dorothy Jean Robinson. The jury fixed his punishment at imprisonment in the state penitentiary for life, and, from the judgment entered thereon, he appealed.

About the middle of Saturday morning, February 1, 1958, Robinson, accompanied by his stepson L. T. Harris, of the age of two years five months and twenty-eight days, appeared at the office of the sheriff of Hinds County, at Jackson, and reported that someone had stuck a gun through the window, and killed his wife. A deputy L. M. Garrett, on his way to the scene, ascertained that the location of the killing was in Madison County. He therefore got in touch with the sheriff's office at Canton and Billy Noble, a deputy sheriff, jointed the Hinds County officer, near Ridgeland, and they went immediately to the scene.

Upon entering the Robinson home, the body of Dorothy Jean Robinson was lying just inside the open door. She was dressed in 'Sunday-go-to-meeting' clothes. She had been shot at close range in the back of the neck, with parts thereof splattered on the door. The bed in the room had been made up. The table indicated that someone had eaten breakfast. Two pieces of fried bologna remained in the skillet. A 12 gauge single barrel shotgun was propped against the wall opposite the door, and the discharged shall had not been ejected. It had rained the night before and the yard was muddy. Two sets of boot tracks were evident, leading from and to the house. There was also a loafer type shoe track leading away from the house. Robinson's boots, in the house, matched the boot tracks in the yard leading out and in. When the officers first saw Robinson, he was wearing a pair of dress pants, an overcoat, and dress shoes. The shoes, which he had on, matched the shoe tracks in the yard.

The defendant had told the officers that when he got up that morning, he went to cut some wood for the purpose of making a fire to cook breakfast. At the time, he wore khaki pants. He identified a pair of such trousers, lying on the baby bed, as the ones which he wore at that time. When the cuffs were emptied, a number 6 shot fell out. Other shots of the same number were in the wall and on the floor by the body. Three of such shots were taken out of the door. No panes were out of the windows, which were nailed at the top and could not be opened. Only the front door was not securely fastened.

Robinson had also told the officers that, after he returned to the house with the wood, he and another Negro, Willie Thomas, went to a nearby store and purchased some whiskey; that, as he came back, his stepson was on the porch crying; that he ran into the house immediately and found his wife on the floor dead; and that somebody had killed her with his gun.

In the absence of the jury, Officer Noble testified that he asked the little boy, L. T., at the house, in the presence of the defendant, if he knew who shot his mother and the child replied, 'Daddy shot mother dear', at the time raising his arms like he was pointing a gun and saying 'Bang'; that the boy was looking at Robinson and that the defendant made no vocal denial. The witness at the time was of the opinion that the boy was about 3 years old and was normal in intelligence and seemed to know what he was saying. From his investigation, he found out that the boy called his mother 'mother dear'. The trial judge asked the witness about the accusation, and, when 'the child said that Henry killed his mother, or words to that effect, did Henry make any statement to that?', and the answer was, 'No, sir'. Again the judge asked, 'and did he ever deny then that he killed his wife?', and the answer was 'He just sat there and shook his head. He never opened his mouth'. The court held that this evidence was admissible, and defense counsel took exceptions thereto. The jury was returned to the box, and this evidence was offered to the same effect, except that the officer said that Robinson made no vocal denial at the time, and did not say anything about the shaking of the head. However, he told about a second accusation at the home of the defendant's sister-in-law, in which he said that the defendant, while making no vocal objection, 'sat there and shook his head', but at the same time the defendant 'told his wife's sister that he had come home and found Dorothy Jean, or whatever he called her, he had found her dead.'

Willlie Thomas, who lived the equivalent of several blocks from Robinson's home, testified that the defendant, wearing khaki clothes, came to his house that morning to borrow an axe to cut wood; that later he came back and they went to a store and purchased some whiskey; that they separated about 10:30 that morning; that Robinson left his car at the gap because it was too muddy to drive it up to the house; that when he returned about 12:00 o'clock he saw neither the defendant nor his car; and that he knew of no person at the house that morning other than Robinson.

Cora Lee Ford and Lewis Ford, the sister and the father of the deceased, testified that the defendant, one and two weeks, respectively, before the killing, threatened to kill the deceased.

The defendant testified for himself that he got up early that morning and went to the home of Willie Thomas to borrow an axe; that he cut wood, took it to the house, made a fire, and told his wife to cook breakfast and get herself and the boy ready; that he would be back shortly and they would go to town; that he returned the axe and he and Thomas went to a store and bought two eighths of whiskey, but that he drank only one swallow; that, when he got back, the little boy was standing on the porch crying, and that his wife was dead; that he picked up the gun and saw that the shell had been fired; and that he took the boy and hurried to Jackson to report it to the sheriff's office. He further testified that L. C. Harris was the father of the boy; that the father had been to his house twice; that the child called L. C. 'Daddy'; and that he never called him anything but 'Henry'. He said that he made no denial of the boy's statement because he did not hear the boy charge him with killing his mother. He further denied that he ever threatened his wife, saying, to the contrary, that they got along fine.

The sole question on this appeal is whether or not the statement of the little boy constituted an accusation, which the defendant was called on to deny, and if so, whether or not he in fact made a denial.

The appellant contends that the admission of this statement was highly prejudicial and constituted reversible error, because, he says, in effect that (1) the child did not have sufficient capacity to testify as a witness, and (2) the statement did not charge him with the crime, but that, if so, he shook his head, showing a denial thereof, and that the failure to make a vocal denial, under the circumstances, did not amount to an admission of guilt by silence.

22 C.J.S. Criminal Law Sec. 734a(1), pp. 1258-1259, says: 'Where, on being accused of crime, with full liberty to speak, one remains silent, his failure to reply or to deny is relevant as tending to show his guilt; and the accusatory or incriminating statement is admissible, not as evidence of the truth of the facts stated, but to show accused's admission by silence.' See also at page 1260 thereof as follows: 'It is, of course, necessary for the state to show affirmatively that accused stood mute or failed to deny the statement before it is admissible as an admission of the truth of the statement by silence.'

This doctrine of the admission of guilt by silence is settled beyond question in the jurisprudence of this state. Kendrick v. State, 55 Miss. 436; Spivey v. State, 58 Miss. 858; Miller v. State, 68 Miss. 221, 8 So. 273; Murphy v. State, 129 Miss. 634, 92 So. 694; Anderson v. State, 171 Miss. 41, 156 So. 645; Church v. State, 182 Miss. 802, 183 So. 525; Page v. State, 208 Miss. 347, 44 So.2d 459; Character v. State, 212 Miss. 30, 53 So.2d 41; Thurmond v. State, 212 Miss. 36, 53 So.2d 44.

A youthful witness, in order to be...