Stevens v. Locke

• Decision Date: 06 January 1930
• Docket Number: 28079
• Court: Mississippi Supreme Court
• Parties: STEVENS et al. v. LOCKE

125 So. 529

156 Miss. 182

STEVENS et al. v. LOCKE

No. 28079

Supreme Court of Mississippi

January 6, 1930

Division B

APPEAL from circuit court of Lowndes county HON. J. I. STURDIVANT Judge.

Action by Frances Stevens and others against Thomas J. Locke. From an adverse judgment, plaintiffs appeal. Affirmed.

Judgment affirmed.

Frierson & Weaver, of Columbus, and J. A Cunningham, of Booneville, for appellants.

Instruction No. 3, requested by plaintiff should have been granted, so that the jury would have been instructed as to what circumstances would have justified defendant in acting in self defense in view of the defendants having involved the difficulty.

45 C. J. (Negligence), sec. 183; State v. Morgan (Ohio), 125 N.E. 109; Sims v. Commonwealth (Va.), 115 S.E. 382; Williams v. McCranie (Ga.), 109 S.E. 702; Darby v. Moore, 144 Ga. 758, 875 S.E. 1067; Vaughn v. State (Ala.), 84 So. 879, 883; Mitchell v. State, 30 So. 348; Rood v. State (Tex.), 40 A. S. R. 795, 796.

Uncommunicated threats made by decedent where his assailant was the aggressor in the difficulty and was fully informed as to the animus of decedent toward him before the difficulty were not admissible.

Wilkie v. State (Okla.), 242 Pa. 1057; 1 Words & Phrases (3d) 360; Lovett v. State (Fla.), 11 So. 550, 555; State v. Rowell, 75, S. C. 494, 56 S.E. 23; State v. Lee, 85 S.C. 101, 67 S.E. 141, 137 A. S. R. 869; Thomas v. State, 61 Miss. 60, 67; Hughes v. State, 38 So. 33; Lipscomb v. State, 75 Miss. 559, 23 So. 210.

The admission of evidence out of order is left to the discretion of the trial court, but where evidence is so admitted so as to provide a dramatic appeal to the emotions of the jury, the trial court has abused its discretion.

Criminal and His Allies, page 209; 38 Cyc. 1350 and 1352; Murry v. Buell, 41 N.W. 1010, 74 Wis. 14; Sharron v. Sharron, 16 P. 345, 366, 75 Cal. 1; Independent Steel & Wire Co. v. N. M. Central Railroad Co., 178 P. 842, 844.

A petition for subpoena duces tecum to a stenographer, although employed by the defendant for taking testimony, desiring her to bring in transcript of her notes taken in a preliminary trial involving same difficulty in which the suit arose for purpose of impeaching defendant should be granted.

Geo. T. Mitchell, of Tupelo, and Owen & Garnett, of Columbus, for appellee.

Instruction No. 3 asked by plaintiffs was properly refused because it was so long and complicated that it would have confused the jury and sought to cut off the right of self defense.

Echols v. State, 55 So. 485, 486; Prine v. State, 19 So. 711; Patterson v. State, 23 So. 647; Lofton v. State, 31 So. 420; Rogers v. State, 34 So. 320; Lucas v. State, 67 So. 851; Garner v. State, 47 So. 500; Carraway v. State, 263 S.W. 1063.

Circumstances under which threat was made are competent to explain its meaning and significance.

Enc. of Evidence, 795; Moorman v. State, 109 Miss. 848, 69 So. 1000; Leverett v. State, 73 So. 273, 274; Hambrick v. State, 103 So. 364; Powell v. State, 110 So. 515; Clark v. State, 123 Miss. 147, 85 So. 188; Miles v. State, 54 So. 946; People v. Phelan, 123 Cal. 551, 56 P. 424-430; Adams v. State, 84 S.W. 231-233; Hammons v. State, 177 S.W. 493; Murphy v. Commonwealth, 266 S.W. 33; Mason v. State, 183 S.W. 1153; Beishenyi v. People, 207 P. 591; Durham v. State, 210 P. 934; McCandless v. Commonwealth, 185 S.W. 1100 (Ky.); Murphy v. Commonwealth, 266 S.W. 33 (Ky.); Poole v. State, 76 S.W. 565 (Tex. Cr. App.); Russell v. State, 11 Tex. Ct. of App. Report 288; 2 Jones on Evidence (2 Ed.), page 1107; Roberson v. State, 117 So. 412, 415 (Ala.); Wood v. State, 101 So. 314; Liddell v. State, 193 P. 52; Tuttle v. Commonwealth, 33 S.W. 823; State v. Bartlett, 71 S.W. 148, 152; State v. Price, 200 N.W. 195; Underhill's Criminal Evidence (3 Ed.), sec. 509; People v. Palmer, 63 N.W. 656; Haynes v. The State, 17 Ga. 465, 585; Pound v. State, 43 Ga. 88, 130; Woods v. State, 101 So. 314; Oliver v. State, 57 So. 66 (Ala.); Green v. United States, 101 P. 112; Price v. State, 98 P. 447, 455; Jennings v. State, 132 S.W. 474, 475; Atkins v. State, 16 Ark. 586, 581; Rouse v. State, 69 S.E. 180.

Conflict, dispute, doubt or confusion as to who was the aggressor, makes uncommunicated threats admissible, if there was overt act.

Mott v. State, 86 So. 514; Johnson v. State, 54 Miss. 430; Johnson v. State, 66 Miss. 189; Brown v. State, 40 So. 737; Echols v. State, 55 So. 485.

The introduction of proof out of order was a matter resting within the sound discretion of the court, and as proof of the overt act was made the plaintiffs could not have been prejudiced by the order of proof.

Lake v. Munford, 4 S. & M. 312; Torrey v. Fisk, 10 S. & M. 590, 595; Winterton v. I. C. R. Co., 73 Miss. 831, 20 So. 167; 11 Enc. of Ev., 185; 9 Enc. of Evidence, 56 and 243; People v. Smith, 98 N.E. 281, 283; 26 R. C. L. 1038; 6 Jones on Evidence (2 Ed.), 4964.

A subpoena duces tecum is only to be granted to secure books and papers to be introduced in evidence and not to secure papers to refresh the memory of a witness.

5 Jones on Evidence (2 Ed.), 4506; Wells v. U.S. 257 F. 605; People v. Chang, 16 P. 201.

A stenographer employed by counsel has no official relation to the preliminary trial and her notes were privileged, and the same is true even if the defendant himself had employed her.

In re Krueger, 2 Lowell 182, 14 F. Cases No. 7,942; A. C. L. R. Co. v. Williams, 94 S.E. 584; Ex parte Schoeft, 77 N.E. 276; Davenport v. Penn. R. Co., 31 A. 245; 23 A. & E. Enc. of Law (2 Ed.), 100; Sovereign Camp, W. O. W., v. Ward, 71 So. 404; Clark v. Equitable Life Assurance Society, 31 So. 964.

Argued orally by J. F. Frierson and J. A. Cunningham, for appellant, and by Geo. T. Mitchell, for appellee.

OPINION

Ethridge, P. J.

Mrs. Frances Stevens and her three daughters, the appellants, were plaintiffs in the court below, and sued the appellee, Thomas J. Locke, for damages for the wrongful killing of Wallace Stevens, the husband of Mrs. Frances Stevens, and the father of the three daughters. The killing occurred late on the night of December 24, 1927, in the store of Stevens, at which time there were two customers, Mr. and Mrs. Coward, the deceased, Stevens, and the defendant, Thomas J. Locke, in the store. Mr. and Mrs. Coward were witnesses for the plaintiff, and Mrs. Coward testified that Locke walked into the store around eleven-thirty P. M., and said, "Where is that guy, Wallace Stevens?" and that Mr. Stevens held out his hand and said, "Here he is," and that Mr. Locke pulled Mr. Stevens over, and said something, using obscene language, and Mr. Stevens asked him not to curse in the presence of ladies, that Mr. Locke struck the deceased, and that she then went to the rear of the store, and the next thing she heard was two pistol shots; that, after these shots, she started out of the store, and that Mr. Coward asked Mr. Locke not to curse any more because she was there, and Mr. Locke said, "I beg your pardon," and asked Mr. Coward to call a doctor or an ambulance; that she went out of the store and found Mrs. Locke outside in a car, and that Mrs. Locke asked what had happened, and that she told Mrs. Locke that Mr. Locke had killed Mr. Stevens.

Mr. Coward testified that he and his wife were in Stevens' store on the night of the killing at the time Mr. Locke came in, and that Mr. Locke said, "Where is that guy, Stevens?" and Mr. Stevens said, "Here he is, right here," and held up his hand, and that Mr. Locke caught him by the hand and the back of the neck, pulled Stevens toward him, and called him a son of a bitch, and that Mrs. Coward ran toward the back of the store, and that he turned to see where she was going, and heard the snap of a pistol, and turned around, and that both men had guns pointed at each other, and that he ran back of a counter under some shelving, and two shots were fired while he was in that position, and that he did not see the shooting; that, after the shooting, Locke came where he was and asked him to 'phone for a doctor or an ambulance, and then said, "No use calling the doctor, call the undertaker; he is dead;" that Locke then said to him, "Son," or "Young man, you saw him pull his gun first, but he pulled it too damned late, didn't he?" "I told him I didn't know, that I didn't see either gun pulled;" that about that time he finished calling for the doctor and the ambulance, and that then a policeman named Stephens came in, and he (Coward) walked out. He also stated that Mrs. Locke came in shortly after the shooting, went where Mr. Locke was, and said to him, "What in the world has happened?" and Locke said, "I killed Mr. Stevens," or "I killed a fellow," and that he might have used an oath along with it, but the witness was too excited, and could not say for certain.

The defendant testified in his own behalf, in substance, that he and Stevens had not been on speaking terms for several years but that he entertained no ill will toward Stevens, but that, on account of Stevens not being an easy person to do business with, he had discontinued sending his salesman to Stevens, Locke being a wholesale, and Stevens a retail, grocer, but that he had just scratched Stevens off because he returned merchandise and was not pleasant; that on Locke's part the feeling was friendly, and that he had nothing against Stevens. He further testified that, previous to this trouble, he and Captain Sharp, the mayor of Columbus, made a trip to New Orleans at Thanksgiving; that they had a conversation in reference to the feeling existing between Stevens and Locke, and that Captain Sharp asked him if he would give him (Captain Sharp) permission to see if he could not get the trouble between them patched up, and that he told Captain Sharp he would...