Salmon v. State

• Decision Date: 05 November 1928
• Docket Number: 27467
• Citation: 151 Miss. 539,118 So. 610
• Court: Mississippi Supreme Court
• Parties: SALMON v. STATE. [*]

118 So. 610

151 Miss. 539

SALMON v. STATE. ^[*]

No. 27467

Supreme Court of Mississippi

November 5, 1928

Division B

1 HOMICIDE. Evidence held to sustain conviction for murder. Evidence in prosecution for murder held sufficient to sustain conviction.

2 HOMICIDE. Exclusion of testimony as to previous uncommunicated threats, at time evidence showed without conflict that defendant was aggressor, held not erroneous. In prosecution for murder, exclusion of proposed testimony as to threats made by deceased but not communicated to defendant offered at a time when evidence showed that defendant was the aggressor in the difficulty resulting in homicide, held not erroneous, since previous uncommunicated threats are not admissible without conflict in testimony as to who aggressor was.

3. CRIMINAL LAW. Error in admitting evidence as to conversation with defendant tending to show moral depravity held harmless, in view of instruction withdrawing testimony.

In prosecution for murder, error in admitting evidence relative to conversation, wherein defendant's statements concerning his wife tended to show extreme moral depravity, held harmless, in view of instruction positively forbidding jury to consider such part thereof in determining guilt or innocence of defendant.

4. CRIMINAL LAW. Motion for new trial for incompetency of juror, held properly overruled, in absence of affidavit or testimony as to ignorance of juror's incompetency.

Motion for new trial on ground one of Jurors was incompetent held properly overruled, in absence of supporting affidavit of both defendant and attorneys that each of them was ignorant of juror's incompetency when he was accepted, or testimony to that effect on motion for new trial.

5. CRIMINAL LAW. Defendant failing to object to jury's being permitted to read paper cannot complain thereof on appeal. Where defendant in prosecution for murder made no objection to jury trying case after having read paper containing editorial and did not call on court for a ruling, he cannot complain thereof on appeal.

HON. C. P. LONG, Judge.

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

H. H. Salmon was convicted of murder, and he appeals. Affirmed.

Affirmed.

Bratton & Mitchell, for appellant.

J. A. Lauderdale, Assistant Attorney-General, and Geo. T. and Chas. S. Mitchell, for the state.

Argued orally by C. A. Bratton, for appellant, and J. A. Lauderdale, Assistant Attorney-General, for appellee.

OPINION

ANDERSON, J.

Appellant was indicted and convicted in the circuit court of Pontotoc county of the murder of Earl Hutchinson. The jury returned a verdict of guilty, but failed to agree as to the punishment, and thereupon the court sentenced appellant to the penitentiary for his natural life. From that judgment, appellant prosecutes this appeal.

The evidence for the state tended to establish the following state of facts:

The homicide took place on June 6, 1925. The deceased, Hutchinson, was a young, unmarried man of twenty-five years of age, and lived at Houlka, in Chickasaw county. The appellant was a married man of thirty-five years of age, having a wife and four children, and lived in the town of Pontotoc. The homicide took place on a Saturday afternoon. On Friday, the day before the homicide, appellant and Mag Smith, together with Letitia Ashley and a man named Mills, had been to a dance at the home of one McKnight in Pontotoc county. After spending a while at the dance, the four of them returned to Pontotoc. Mag Smith and the appellant occupying one car, and Letitia Ashley and Mills another, drove out on the Pontotoc and Tupelo Highway and there spent the night. Early the next morning appellant and Mag Smith had some kind of misunderstanding. About sunrise on the morning of the day that the homicide occurred, appellant brought Mag Smith and Letitia Ashley back to the town of Pontotoc, and directed Mag Smith to take Letitia Ashley home in his car. The two women then proceeded to the home of Letitia Ashley and from there went to the town of Houlka. After a night's debauch, they wanted whisky, and while at Houlka they saw deceased and asked for some. He told them that he had none, but would try to get some for them, and instructed them to wait for him on a bridge a short distance from Houlka. While waiting for him at the bridge, Hutchinson returned in the car with Edward Brown, bringing a half pint of whisky, which the four of them drank. No more whisky was drunk by these persons that day. After drinking the whiskey, Letitia Ashley got in the car with Edward Brown, and Hutchinson, the deceased, got in the car with Mag Smith, and proceeded to Lochinvar, a place about three miles south of the town of Pontotoc. The appellant, Salmon, was there when they reached the place. After remaining at Lochinvar for a while, all of them left for the town of Pontotoc, the two women and Brown and Hutchinson occupying one car, and appellant the other. After reaching the town of Pontotoc, the two women and Brown and Hutchinson, the deceased, drove through the town and back to a cafe, where they had some cold drinks, and then out on the Pontotoc and Tupelo Highway. Appellant saw them pass through the town of Pontotoc, and shortly afterwards armed himself with a pistol, got in his car with Vern Bishop, and drove to the foot of Gordon Hill, near Lochinvar, where he got a quart of whisky which he had buried there a few days before. After getting the liquor, appellant returned to Pontotoc and drove out on the Pontotoc and Tupelo Highway in the direction that Mag Smith and the other persons with her had gone, and soon met some of them returning to Pontotoc with Thed Jackson. Immediately after passing appellant's car, Jackson remarked that he wanted to see appellant on some business and turned his car around and followed him. A short distance out of town, appellant parked on the side of the highway. About this time another car, referred to in the evidence as the "Arkansas car," in which a sister of Mag Smith was riding, drove up going toward Pontotoc, and parked in front of appellant's car. When Jackson came up in his car, he parked between the Arkansas car and the car of appellant. Shortly afterwards, Hutchinson, the deceased, and Mag Smith drove up and parked behind the car of the appellant. At this time Mag Smith's sister was in the car with appellant. Upon seeing them, Mag Smith immediately went to the car where they were and took off appellant's hat, tore it up, and threw it on the ground, and cursed him. Thereupon appellant got out of the car told Mag Smith that he was going to whip her. She ran behind Hutchinson, the deceased, and begged him not to let appellant whip her, to which entreaty Hutchinson replied, "Oh, he's not going to whip you. " Appellant then remarked, "I am not going to let any son of a bitch run over me," and reached into his car and got his pistol. All those present, including appellant's companion, Vern Bishop, attempted to take the pistol away from him or prevent him from using it, but failed. Freeing himself from those who were trying to prevent him from using his pistol, appellant advanced upon the deceased, who was standing, in his shirt sleeves, with a cigarette between two of fingers of his right hand. Deceased, throwing up his hands and retreating, said to appellant: "Hessick, don't shoot me. I haven't done anything to you. Give me a chance. Don't shoot me." Appellant still advancing on him fired four shots at him, one of which penetrated the brain of the deceased. Deceased, with the cigarette still between the two fingers of his right hand, fell under a wire fence near the highway. Appellant then went to the prostrate form of the deceased and felt his pulse and turned to those present and said: "I have killed the son of a bitch." He stated further: "We don't know anything about this. Don't know who done it." Appellant then went to his car, and took what remained of the quart of whisky and broke it over the wheel of his car. Shortly after the shooting took place, Dr. Abernethy, who was returning from Tupelo in his car, stopped, and upon being asked to help, went to the body of the deceased and found him lying dead with the cigarette still between the fingers of the right hand. As the doctor turned from the dead body, appellant said, apparently to Mag Smith: "Dry up, you damn bitch! You are the cause of the whole trouble." And she immediately replied: "You are a damn liar. You killed him in cold blood without any cause." Dr. Abernethy then stated to those present that he could not render any help; that they needed a sheriff instead of a doctor; and appellant, in response to his statement, said: "Send all of the damn sheriffs out here; I don't care for them."

Appellant claimed self-defense, and to establish that defense relied alone on his own testimony. He testified that when he shot the deceased, the latter had struck him with a Coca-Cola bottle, and was trying to strike him again, and that deceased had inflicted a serious wound about his neck and shoulder with the bottle. The officers, arriving at the scene shortly after the homicide found Coca-Cola bottles on the highway several feet from where the crime took place. Appellant contends that the evidence was insufficient to sustain the verdict of murder and that under the evidence the verdict of the jury could not have been for a graver offense than that of manslaughter. We have set out rather fully the state's case as made by the...