Sinclair v. State

• Decision Date: 18 December 1905
• Citation: 87 Miss. 330,39 So. 522
• Court: Mississippi Supreme Court
• Parties: MARION W. SINCLAIR v. STATE OF MISSISSIPPI

39 So. 522

87 Miss. 330

MARION W. SINCLAIR v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

December 18, 1905

November 1905

FROM the circuit court of Pike county, HON. MOYSE H. WILKINSON Judge.

Sinclair the appellant, was indicted for manslaughter, tried convicted, and appealed to the supreme court. The facts are sufficiently stated in the opinion of the court.

Reversed and remanded.

J. W. Cassedy, and Mixon & Butler, for appellant.

The threat made was that he (Johnson, the deceased) intended to take Sinclair's pistol away from him and beat him to death. This evidence was clearly admissible, although the threat had not been communicated to the defendant. Abbott's Trial Brief Criminal Causes, sec. 316, p. 582. Under the facts in this case it is peculiarly admissible, for the reason that the evidence for the accused shows that the deceased was evidently attempting to do the very thing which he had threatened to do.

Where the question is as to what was deceased's attitude at the time of the fatal encounter, recent threats may become relevant to show that the attitude was one hostile to the defendant, though such threats were not communicated to the defendant; the evidence is not relevant to show quo animo of the defendant, but it may be relevant to show that at the time of meeting the deceased was seeking defendant's life. Wharton's Criminal Law, sec. 1027, approved in Wiggins v. Utah, 93 U.S. 465; Johnson v. State, 54 Miss. 430; Guice v. State, 60 Miss. 714; Hawthorne v. State, 61 Miss. 749; Johnson v. State, 66 Miss. 189 (S.C., 5 So. 95); Bell v. State, 66 Miss. 192 (S.C., 5 So. 389); Harris v. State, 72 Miss. 99 (S.C., 16 So. 360).

Undoubtedly the court erred in sustaining the motion to exclude the evidence of Harrell as to the character of the accused, as it is held in numerous cases: "The testimony of a witness to the good character of the accused cannot be excluded merely because his only reason for so saying is that he never heard it discussed or questioned." State v. Grate, 68 Mo. 22.

J. N. Flowers, assistant attorney-general; J. J. Cassidy, J. B. Holden, and James H. Price, for appellee.

The exclusion of testimony touching threats was not error. Threats are never admissible where the defense relied upon is an accident. Sinclair testified unequivocally that the shooting was an accident. Threats and overt acts, danger, real or apparent, to life or limb, on the one hand, and accidental killing of a human being, on the other, are not in the same class, not measured by the same law, not written in the same language. "Apparent danger" that justifies action in one's defense and makes threats admissible is defined by this court in Evans v. State: "When we use the term 'apparent danger,' we mean such overt, actual demonstration by conduct and acts, of a design to take life or do some great bodily injury, as would make the killing apparently necessary to self-preservation." Proofs of threats are never admissible unless there has been some overt act. Kendrick v. State, 55 Miss. 436; Moriarity v. State, 62 Miss. 654; Lundy v. State, 44 Miss. 669; Parker v. State, 55 Miss. 414; Hinson v. State, 66 Miss. 532 (S.C., 6 South. Rep., 463).

There was no error in excluding Harrell's testimony. The court could have limited the number of witnesses upon questions not controverted. 8 Am. & Eng. Ency. Law (2d ed.), 468, 469. And, besides, this testimony was cumulative.

Argued orally by J. W. Cassedy, and W. B. Mixon, for appellant, and by J. H. Price, for appellee.

OPINION

CALHOON, J.

Appellant was indicted for manslaughter and convicted. He was a peace officer of McComb City, and the homicide occurred while he was in the effort to arrest Johnson, the man killed, for a misdemeanor being committed in his presence, which arrest was, as it is said, being resisted by the deceased. The offense being committed was profane swearing in the presence of others, some of them ladies, on a public sidewalk of the city. In the effort to arrest and the resistance of it, there was, at some period of it, a grappling of the two, and at some period of the altercation each drew a pistol. As to which was the aggressor in the grappling or which first drew or began to draw his pistol the testimony conflicts. Certain it seems to be, however, that the accused "got the drop" on deceased and made him throw down his pistol, and that accused, still holding his own weapon on deceased, stooped and picked up the pistol which had been dropped and put it in his pocket. There was another grappling after this, and, according to some of the testimony for the prosecution, the fatal shot was fired after this, while the two were apart and deceased was making no hostile demonstration; but, according to evidence for the defense, the firing of the fatal shot was while they were clinched, the deceased being the aggressor. There was evidence also that this shot was fired while deceased was trying to get hold of the pistol on the person of the accused; and the accused himself testifies that he had no design to shoot, but that his weapon fired accidentally in the tussle. This is a general view of the prominent features of the evidence in this record. From this and the details, all of which we have examined with care, it appears that appellant was entitled, if he could, in order to establish his right to an acquittal, to awaken a reasonable doubt in the minds of the jury that the killing was (1) in self-defense or (2) purely accidental in attempting arrest and without culpable negligence on his part.

In the matter of self-defense, as to the danger, real or reasonably apparent, in the light of testimony of Johnson's acts and probable purpose, ...