Spight v. State

• Citation: 83 So. 84,120 Miss. 752
• Decision Date: 10 November 1919
• Docket Number: 20853
• Court: United States State Supreme Court of Mississippi
• Parties: SPIGHT v. STATE

83 So. 84

120 Miss. 752

SPIGHT v. STATE

No. 20853

Supreme Court of Mississippi

November 10, 1919

1. WITNESSES. Permitting witness to testify after informing him as to his rights.

Where a witness in a prosecution for homicide was instructed by the court as to his right to refuse to testify on the ground that it might incriminate himself, first hesitated but finally said he would testify, it was not error for the court in such case to permit his testimony to be taken.

2 WITNESSES. Refusal to testify because of self incrimination available only to witness.

A defendant convicted of murder cannot complain that a witness testified unwillingly and incriminated himself since the right to refuse to testify was a personal privilege of the witness himself and such right to refuse to testify is given solely to protect the witness from incriminating himself.

3 HOMICIDE. Conspiracy. Evidence to establish.

In a prosecution for murder, the state in establishing conspiracy is never required to prove in express terms an agreement between the parties to do the unlawful act, but it is sufficient when the evidence reveals from all the facts and circumstances, together with the acts of the parties, a common design or understood purpose between the parties to commit the crime.

4 HOMICIDE. Instruction on conspiracy sustained by evidence.

In a prosecution for murder an instruction upon conspiracy was proper where the record contains abundant proof to justify the jury in finding an express or implied design to kill deceased, and a joint participation in the killing.

5. CRIMINAL LAW. Review. Credibility of witnesses.

The supreme court does not on appeal pass upon the truth or falsity of testimony in any case where the testimony offered is such that a jury is reasonably warranted in believing it and acting upon it. The court will not to any extent usurp the province of the jury, who are the triers of fact, and who with all the witnesses testifying in their presence, must necessarily be the best judges, and under the law are the final judges, of the truth or falsity of the testimony and the weight to be given thereto.

APPEAL from the circuit court of Tippah county, HON. C. LEE CRUM Judge.

Allen Spight was convicted of murder and appeals.

The facts are fully stated in the opinion of the court.

Judgment affirmed.

Spight & Street, for appellant.

The first assignment of error is the action of the court in overruling the objection of counsel for appellant to the testimony of George Garrett who was jointly indicted with the appellant.

In the latest case we have found where this court passed on this subject, the case of Brown v. The State, 108 Miss. 46, 66 So. 288, the question there was whether the objection of a co-defendant to testifying could be raised by his attorneys. The court said not, and Judge COOK, in delivering the opinion of the court used this language: "It was the duty of the court to have informed the witness of his privilege, and to have left it to the witnesses alone to waive or claim this protection afforded him by the constitution." This requirement of the law was fully met by the question from the trial judge, until he had received repeated statements from the witness that he did not desire to testify, and not until his fears were appealed to did he ever agree to testify. Judge COOK, further said in the same opinion: "So far as the witnesses are concerned, there is nothing in the record to suggest that he was unwilling to testify. His lawyers were unwilling, but the witness himself said not a word." The case at bar is far different from that. Here the witnesses repeatedly refused to testify, and if he, "had been left alone to waive or claim this protection afforded by the constitution" his testimony would not have been heard. Error is assigned to the giving by the court of the third instruction for the state on the subject of conspiracy.

There is absolutely no evidence in the record to show any conspiracy or agreement between George Garrett and Allen Spight to kill Ira Short. If the testimony of George Garrett it true the killing occurred without any agreement between the two as to what should be done. This instruction left the jury to decide for themselves what it takes to constitute a criminal conspiracy and without any legal guide or definition with a negro on trial for killing a white man it was not difficult for the jury to construe almost any act as constituting a conspiracy to murder. This instruction should have plainly told the jury what is meant by a conspiracy and then left them to decide from a consideration of all the evidence whether a conspiracy had been established. This was not done and the result was in our opinion highly prejudicial to the defendant in the court below, the appellant here.

While we recognize the general reluctance of this court to set aside the verdict of a jury where the case has been submitted to them on proper instructions yet we feel sure that if this court should be convinced, after a consideration of all the evidence, that it is probable that an injustice has been done, the court will not allow a verdict to stand; especially one carrying a death penalty. Our conviction is that this is a case of that kind, and we shall endeavor to give the court our reasons for this conclusion.

The court will readily perceive that Allen Spight's conviction rests upon the testimony of George Garrett. By his own evidence he shows that he was an accomplice in the crime but throughout the entire course of his testimony he was seeking to mitigate his own connection with the case and fasten the chief responsibility upon his codefendant.

Looking at all the testimony and circumstances in the case, and making full allowance for our zeal and for every possible bias in favor of a client, we sincerely, conscientiously believe that the verdict of the jury in this case ought not to be upheld.

"Pity 'tis, 'tis true." Our every-day observation teaches us that it is no difficult undertaking to convict a negro before an average jury in this county when charged with killing a white man. It will be remembered also, as shown by the record, that a little more than a month after this killing this trial occurred. Naturally the finding of a dead body after a disappearance of eight days, the horrible condition in which it was found, and the fact that two negroes were charged as the guilty agents, public sentiment was highly inflamed, and a sacrifice was demanded. This trial presented the first opportunity to visit wrath upon somebody, and there was no disposition evidently on the part of this jury to take any chances on letting a man charged with the crime escape.

If the testimony of Allen Spight and his wife is true, the appellant is guilty only as an accessory after the fact, and not of that crime unless we eliminate entirely his statement that it was through fear alone of George Garrett that he aided him in removing the body. This feature of the case was presented to the jury by instruction No. 13. This view of the case, however, would not have satisfied the demand for vengeance, and doubtless received no consideration at the hands of the jury.

We think reversible error was committed as argued by us in the first part of this brief on the law of the case, and for the reasons there assigned we respectfully submit that the case ought to be reversed. If, however, the court should not take this view of it we earnestly contend that the case ought to be reversed on the facts as not being sufficient to support this verdict bearing the death penalty.

As stated before, we recognize the inherent difficulties which confront us when we ask the court to reverse the case and set aside the verdict of the jury on the facts, but we know that if we have been able to convince the court that a judicial murder is about to be committed there will not be any hesitation on the part of the court to save the life of this unfortunate negro and give him another chance on a trial free from some of the surroundings attending the former trial.

Earl N. Floyd and A. W. Dent, assistant Attorney-Generals, for the state.

The first assignment of error relates to the action of the court in permitting George Garrett to testify. This objection comes from counsel for appellant and not from George Garrett and we cannot perceive that it has any force under the circumstances. The witness, George Garrett, was under indictment for the same crime and doubtless desired to be permitted to present his side of the case on the trial of the appellant so as to place himself in the proper light when his own trial came on, instead of having the whole blame placed upon himself and the appellant exonerated of a crime for which he was at least equally to blame. The examination of this witness by the court shows a due and careful regard for his rights to invoke the privilege of not testifying, and it was only for the purpose of ascertaining his real reason for not desiring to testify that his examination was prolonged to the extent it was. The court kept within careful bounds and only permitted him to testify after it found that it was his reluctance about testifying against his friend rather than a fear of incriminating...