Skates v. State

• Decision Date: 18 April 1887
• Citation: 1 So. 843,64 Miss. 644
• Court: Mississippi Supreme Court
• Parties: GEORGE SKATES v. THE STATE

1 So. 843

64 Miss. 644

GEORGE SKATES v. THE STATE

Supreme Court of Mississippi

April 18, 1887

APPEAL from the Circuit Court of Hinds County, HON. T. J. WHARTON Judge.

In 1880 George Skates was indicted for murder. When his case was called at the February term, 1887, of the circuit court, he applied for a continuance, because of the absence from the State of the physician who attended deceased in his last illness, by whom he expected to prove that the wound inflicted on deceased did not cause or contribute to his death, but that he died of pneumonia. This witness lived in the State of Texas, and the application showed no other ground to believe his attendance could be procured than that a "part of his family lived in this State," and that defendant had written to him offering to pay the expenses of his trip, to which letter no reply had been received.

The evidence for the State disclosed the fact that defendant being under the influence of liquor, with a drawn pistol assaulted some negroes who were returning in a wagon from the village to their homes in the country. To protect themselves they took hold of his pistol, and a neighbor coming up quieted the defendant for the time. The deceased came up from his house to meet his friends in the wagon, unconscious of defendant's presence or condition. As soon as defendant saw him he called out, "I will kill you all; I will show you how to catch a man's pistol," and fired on deceased, who instantly fell. The ball passed in at his right nipple and out under his left shoulder. Deceased died in four or five days. A physician, who saw him a day or two afterward, stated that he then had pneumonia and had been neglected and improperly treated. This witness in answer to a question by defendant said that if the ball was deflected by the muscles of the chest or a rib and passed around the body under the skin the wound was not a dangerous one, but that he made no examination of the wound and did not know its character. Two witnesses stated that the ball went through the body.

The defendant testified in his own behalf, and stated that as he passed the wagon it was dark; that one of the parties in it caught his horse by the bridle and demanded his money; that he drew his pistol and fired, whereupon the person turned loose his horse; that he then started on home, when deceased came up, caught his horse, and tried to take his pistol, and he then fired on him, believing that he was trying to rob or kill him.

By the first instruction for the State the jury was told that unless it believed from the evidence that the defendant had reasonable ground to believe himself to be in danger as to his life or limb at the time he shot he was guilty of murder. Instructions for defendant informed the jury that it must acquit if from the evidence it believed the defendant fired upon deceased from a reasonable apprehension that deceased or his friends were trying to rob him. The court in the third instruction for the State instructed the jury that if defendant inflicted the wound and it was not itself mortal but from which, being neglected, the party died, the defendant was responsible for the result and the jury should convict. Exception was taken to this instruction by the defendant on the ground that the law should have been stated to be that if a party inflicts a wound "dangerous but not mortal," etc.

After conviction defendant moved for a new trial because of misconduct of the jury. It was shown that the jury in a body was taken by the officer in charge to a privy in the court-yard; that a part of the jury remained with the officer some seventy-five yards from the privy, while some of the jurors passed into it to attend to calls of nature. The jurors in the privy were out of sight of their fellows and of the officer in charge. The privy was a public one. None of the witnesses who testified to the separation of the jury saw any one other than the jurors in or about the privy at that time, except that a deputy sheriff (not the officer in charge of the jury), then went in to another compartment; this deputy was examined as a witness and stated that he held no communication with the jurors. The witnesses all stated that other persons might have been in the privy at that time. The jury found the defendant guilty of manslaughter, and from the judgment against him he appealed to this court.

Judgment affirmed.

Wells &amp Williamson, for the appellant.

1. We recognize to the fullest extent the doctrine that continuances are left to the sound discretion of the court, and that it is only when that discretion is abused that this court will grant a new trial on that account. We think the case at bar comes fairly in that class of cases where it has been determined that the refusal to grant the continuance is an abuse of that discretion.

The court will perceive that the testimony of this absent witness is a perfect defense to this case--to wit, that the decedent came to his death not from the wound but from pneumonia not superinduced by the wound. The only reason given by the court below why the continuance was not granted was his non-residence. It has never been decided by this court that the mere non-residence of a witness precluded a continuance on account of his absence. This question has not been passed upon by this court. But it has been decided in the following cases that continuance under those circumstances will be granted: Spence v. State, 8 Black. Ind. 284; Farr v. State, 33 Iowa 554; U. S. v. Little, 2 Wash. C. C. 159; Welcome v. Boswell, 54 Ind. 298; Gibson v. State, 9 Ib. 264.

One continuance at least would have worked no injustice to the State, and we think the court manifestly abused the discretion reposed in him, and for that reason a new trial should be awarded the prisoner. See Ogle's Case, 4 George 383; Lundy's Case, 44 Miss. 669; Franks v. Wanger, 3 Cush. 121; Long v. State, 52 Miss. 34; People v. McCrory, 41 Cal. 461; People v. Ah Lute, 53 Ib. 613.

2. The third instruction for the State is in almost the exact words laid down in Greenleaf, and that we believe used in the Fred. Crum's Case, 64 Miss. 1. But we think that the doctrine laid down there is rather too broad. If the instruction had had the word "dangerous" before the word wound in the first line it would not have been erroneous. A wound might be very insignificant and yet the party might die, and this principle would put the burden of' proof on the defendant that the decedent did not die from the wound; that the wound must be a dangerous wound to call forth that principle of law. See 1 Russell on Crimes 701, and note at bottom of page referring to Parsons v. State, 21 Ala. 300; Com. v. Hackett, 2 Allen 136; State v. Scott, 12 La. An. 274; Livingston's Case, 14 Grattan 592; Scale's Case, 5 Jones N. C. Law 420.

This objection we think is fatal to the first and second instructions also. This was the theory of the defense, that the wound was not a dangerous one, and these instructions, we submit, should have so submitted the question to the jury. The proof on that subject in this case is that if the ball entered the cavity then it was dangerous, if it passed around it was not.

3. Section 2878, Code 1880 (and the same section is in Code 1871), makes homicide justifiable in resisting any attempt to commit any felony upon the slayer, or where he has reasonable ground to apprehend a design to commit such felony. One of the defenses in this case was that the defendant apprehended a design to rob him, and that is by our statute made a felony. See § 2674, Code 1871.

4. We insist that it was error for the jury to separate during the progress of the trial, as was permitted to be done in this case, and the court erred also in permitting the jury to be examined as witnesses to sustain their verdict.

In support of the first of these propositions we refer to McQuillan's Case, 8 S. & M. 587, and Wood's Case, 43 Miss. 364.

They separated in the court-yard, some of them going into the public privy, where, during court, persons are constantly resorting. The bailiff testifies that once when they separated and went in there he examined the privy to see if there was any one there, but that they separated twice more when he did not examine it. See on this point the following cases: Hare's Case, 4 How. 189; McCann's Case, 9 S. & M. 465; Pope & Jacob's Case, 7 G. 121; Caleb's Case, 10 G. 722; Bole's Case, 13 S. & M. 398; Organ's Case, 4 C. 78; Wood's Case, 43 Miss. 364.

That the testimony of the jurors should not have been admitted see the following cases: Organ's Case, 4 Cush. 78; Friar's Case, 3 How. 422; Rigg's Case, 4 Cush. 51; Pope & Jacob's Case, 7 G. 111.

W. C. Wells and C. M. Williamson, counsel for the appellant, argued the case orally.

T. M. Miller, Attorney General, for the State.

1. It is not alleged that the absent witness had agreed to come to this State or what reasons there were for expecting him. No communication of any kind from Terry or the members of his family was produced. Under these circumstances--there being no reasonable assurance that Terry would be produced at the next term--it would seem unnecessary to consider whether a court ought to grant a continuance on account of the absence of a witness residing beyond the jurisdiction. It seems impossible to predicate "abuse of discretion" for refusing a continuance upon the showing made.

But the rule is that a continuance will not be granted where the absent testimony is out of the process of the court.

The presumption is that where the witness did not attend at the trial where the defendant's life was in jeopardy he would not attend at another court. See 3 Wharton on Cr. Law, § 3022 and cases cited.

2. The recent decision of this court in Fred. Crum v. The State,...