Sullivan v. State

• Decision Date: 06 February 1928
• Docket Number: 26954
• Citation: 115 So. 552,149 Miss. 412
• Court: Mississippi Supreme Court
• Parties: SULLIVAN v. STATE. [*]

115 So. 552

149 Miss. 412

SULLIVAN v. STATE. ^[*]

No. 26954

Supreme Court of Mississippi

February 6, 1928

Division B

Suggestion of Error Overruled March 5, 1928.

APPEAL from circuit court of Tallahatchie county, Second district. HON. GREEK L. RICE, Judge.

Pat Sullivan was convicted of murder, and he appeals. Affirmed.

Judgment affirmed.

Jas. T. Crawley, for appellant.

There were no witnesses except the witnesses for the defense therefore, unless the physical circumstances themselves are contradictory to the testimony of the defendant and his eyewitness, Smith, he is entitled to be acquitted. The evidence does not show in any way, manner, shape, form or to any degree that the killing did not occur just exactly as the witnesses for the defense testified it did. The physical facts rather corroborate than contradict the testimony of the defense. The fact that Sullivan carried his friend to a hospital in Greenwood, where he left him and then went on to Zama in Attala county, and sent word to the dead man's wife, is of itself a circumstance most strongly pointing to his innocence. The further fact that he left Zama and went back to Greenwood to give himself up is another circumstance very strongly in his favor. These circumstances are such as to entitle the defendant to their benefit. See Williams v. State, 98 So. 242. There certainly is no evidence in this case which is a positive contradiction of the defendant's evidence as to how the difficulty occurred. Taking the evidence for the defendant as being true, and we think it must be so taken, the killing is justifiable. Hughston v. State, 117 Miss. 311, 78 So. 182; Anderson Gaddis v. State, 110 So. 691 (Miss. 1926 not officially reported); Cumberland v. State, 110 Miss. 521.

One cannot be convicted of an offense upon evidence which merely raises a suspicion of guilt. Hazlehurst v. Byrd, 101 Miss. 57; Jobe v. State, 104 Miss. 860.

A defendant is never, under any circumstances or phase of any case, required to satisfy a jury of his innocence. It is sufficient if the evidence taken as a whole whether introduced by the state or by the defendant, leaves a question of his guilt in reasonable doubt. Pollard v. State, 53 Miss. 410; Cunningham v. State, 56 Miss. 269; Hawthorne v. State, 58 Miss. 778; Smith v. State, 58 Miss. 867; Ingram v. State, 62 Miss. 142; Dawson v. State, 62 Miss. 241; Bishop v. State, 62 Miss. 289.

While the jury were trying the appellant, one J. P. Jernberg was a bailiff to the jury. It appears that one of the jurors trying Pat Sullivan left the body of the jury down in the court house yard and went upstairs in the court house. It seems that the bailiff brought him up there. He left the main part of the jury down stairs and carried him upstairs in the court house on the second floor. It seems that the bailiff went with him in the jury room, and that they were away from the regular panel about ten minutes, and that he got no permission, either from the judge or defendant or defendant's counsel to separate the jury. A murder case such as this, during the trial, the defendant has the right to expect and demand that the entire jury stay together pending their deliberations. The trial by jury should be preserved from all extraneous influences.

J. J. Breland, for appellant.

The evidence is insufficient, as a matter of law, to show the guilt of the appellant beyond a reasonable doubt. In other words, the testimony as a whole, as shown by the record, shows that appellant, Pat Sullivan, killed the deceased, Homer Dewise, in the necessary defense of himself and G. B. Smith, the companion of the deceased and the appellant. Sullivan testified, and his testimony is not contradicted by the testimony of the state or the physical facts, that he shot Dewise, the deceased, to prevent Dewise from killing Smith and from killing himself. The physical facts, both as to the nature and character of the wounds on the deceased, and the other facts and circumstances shown on and about the place where the killing took place, do not contradict the testimony of the appellant and the witness, Smith. There is no conflict in the testimony of the witnesses for the state, the facts and circumstances connected with this killing, as shown by the witnesses for the state, and the testimony of the appellant and the witness Smith which explained the facts and circumstances connected with the killing. There was, therefore, nothing for the jury to pass upon unless it could be left to the jury to decide whether the appellant and witness Smith were testifying to the truth or testifying falsely. We submit that it was not within the province of the jury to arbitrarily determine, without testimony, that the appellant and the witness Smith were not testifying to the truth and that the explanation or details of the killing were not as testified to by the appellant and Smith.

We recognize, as a principal of criminal law, that when one person, by the use of a deadly weapon, kills another, that killing is presumed to have been done unlawfully, and with malice aforethought. This presumption, however, will give way to the facts, when the killing has been explained to have been done in necessary self-defense of the defendant or any other person, and the defendant is entitled to be discharged as a matter of law. Sides v. State, 96 Miss. 638, 51 So. 465; Riley v. State, 109 Miss. 286, 68 So. 250; Pretty v. State, 126 Miss. 94, 88 So. 498; McGehee v. State, 138 Miss. 822, 104 So. 150; Straham v. State, 108 So. 502; Anderson Gaddis v. State, 110 So. 691; Green v. State, 28 Miss. 687; Hawthorne v. State, 58 Miss. 778; Bishop v. State, 62 Miss. 289; Lamar v. State, 63 Miss. 265.

The next assignment of error was an objection to testimony of H. H. Dogan, in rebuttal by the state in testimony offered by the defendant in rebuttal to the state's case in chief. The objection was that it was a part of the state's proof on direct examination and part of the state's case in chief; that it was original matter and not in rebuttal of anything brought out by the defense; that this witness had been examined by the state and questioned especially as to the facts and circumstances and the physical facts at the place of the killing. Over the objection of defendant's counsel, this witness was allowed to testify in detail as to gunshot being found in the yard fence in front of this negro house near the scene of the killing and in the negro house. These were facts that had a direct bearing, if not explained, upon the guilt or innocence of the defendant and were facts within the knowledge of the witness when he testified on the direct examination. See Reddick v. State, 72 Miss. 1008; Flowers v. State, 85 Miss. 591, 37 So. 814.

The court below committed error in giving instruction number six to the state which is in words as follows: "The court instructs the jury, that you are the sole judges of the credibility of witnesses in the case, and, if you believe that any witness has knowingly, or corruptly and falsely testified as to any material fact in this case, you are warranted in disbelieving all the testimony of any such witness; and the court further charges the jury that in passing upon the credibility of the witness, you may consider the manner or demeanor of the witnesses while on the stand and the interest the witness may have in the case, if any such interest is shown." This instruction is clearly erroneous and misleading. In effect this tells the jury that, if they believe that any witness has knowingly testified falsely as to any material fact in the case, they will be warranted in disbelieving all the testimony of any such witness. An instruction, in discussing or defining the doctrine of "falsus in uno" must be correctly and aptly worded so that there can be no danger in misleading the jury. Boykin v. State, 86 Miss. 481, 38 So. 725.

J. M. Kuykendall, for the state.

From the brief of the appellant we have come to the conclusion that the only real point sought to be availed of is that the evidence is insufficient to support the verdict and that a peremptory instruction should have been given. The record clearly rebuts this theory.

The assignments of error having to do with the reception or rejection of evidence and the brief in support of the same fail to raise any suggestion of prejudicial error and for that reason we will not burden the court with an academic discussion of the same but simply call attention to the rule of this court number 11, and the case of Jones v. State, 104 Miss. 871.

A few recent cases in which proof of guilt was not so strong as in the instant case and in what the defendant sought to stand on his proof as against the circumstances and physical facts and in which this court held the proof sufficient, are: Stubblefield v. State, 142 Miss. 787; Grady v. State, 144 Miss. 778; McFatter v. State, 113 So. 187, 147 Miss. 193; McGehee v. State, 138 Miss. 822.

Counsel cites the Gaddis case, 110 So. 691, and in reply to that citation we submit that the case at bar is more like the McFatter case, 147 Miss. 133, 113 So. 187. The law of this case is well set out in McGehee v. State, 138 Miss. 822, a case cited in the brief of the appellant.

The opinion in the McGehee case has well summed up the law of this case. "It is true of course that when circumstances are truthfully developed that the inference drawn from the circumstances must be consistent with guilt, and inconsistent with any reasonable theory of innocence. But where the explanation is unreasonable on its face it is the province of the jury to determine whether the explanation is true or not. If the physical facts contradict the explanation and if it appears to the satisfaction of the jury that it is untrue then the mere fact that the...