Tate v. State

• Decision Date: 25 January 1909
• Docket Number: 13,708
• Citation: 95 Miss. 138,48 So. 13
• Court: Mississippi Supreme Court
• Parties: WILLIAM TATE v. STATE OF MISSISSIPPI

48 So. 13

95 Miss. 138

WILLIAM TATE v. STATE OF MISSISSIPPI

No. 13,708

Supreme Court of Mississippi

January 25, 1909

FROM the circuit court of Yazoo county, HON. WILEY H. POTTER Judge.

Tate appellant, was indicted and tried for the murder of one Dixon, was convicted and sentenced to the penitentiary for life, and appealed to the supreme court. The opinion of the court states the facts.

Reversed and remanded.

Henry Barbour & Henry, for appellant.

It is apparent that this is a very delicately balanced case on the facts, hence any errors in the trial must have militated most seriously against the rights of appellant. Under the circumstances the court below erred in giving the first instruction for the state. This instruction is wrong for two reasons: first, there is no evidence whatever upon which to base it; and, second, it is violation of the principle that an instruction estopping the defendant from pleading self-defense must contain all--not nearly all, but entirely all--of the elements necessary to the estoppel.

There was no evidence to justify the court below in charging the jury, as set forth in this first instruction for the state, that, if they should find from the evidence that appellant met the decedent, and, with his hand upon his pistol in his pocket, made the specified remark to provoke the difficulty with decedent when decedent was doing nothing, and that the remark brought on the difficulty causing the decedent's death, appellant should be held guilty of murder even though decedent fired the first shot. Four eye-witnesses of the homicide were introduced in evidence; two of them, Julius Runnels and Hastings Newman, were state's witnesses. The other two, Will Johnson and Will Redditt, were for the defense. From none of these witnesses is there a suggestion or intimation that the appellant "had his hand in his pocket and on his pistol" when he asked the specified question of the decedent. Yet the jury were allowed, under this first instruction, to consider that there was evidence that such was the situation. This court has repeatedly held that the giving of a state's instruction not based upon the evidence is fatally erroneous if by any means it might have misled the jury to a verdict of guilty. Oliver v. State, 39 Miss. 526; Cothran v. State, 39 Miss. 541; Spradley v. State, 80 Miss. 82, 31 So. 534.

This first instruction for the state is erroneous in that it cut off appellant's right of self-defense from the jury's consideration. The evidence does not show this to be the very rare case where on the facts the instruction is justified at all, nor one where all of the elements essential to an estoppel are embraced in the instruction. The instruction omits the very essential element that at the instant of the killing there had been an abandonment of the unlawful purpose which was intended when the difficulty was "invited or provoked." The appellant was not given the benefit of any existing purpose to abandon the difficulty at any time after it was "invited or provoked." Even though the appellant had armed himself in his expectation of meeting the deceasd, and even though appellant had his hand in his pocket on his pistol, and had invited or provoked the conflict, he would still not be estopped unless at that moment he shot and killed the deceased pursuant to the original wrongful intention with which he had armed himself and had entered the combat. If, when he shot, he acted on the bona fide intent to protect himself, the instruction militated against his rights. Lofton v. State, 79 Miss. 723, 31 So. 105; Cooper v. State, 80 Miss. 175, 31 So. 579; Pulpus v. State, 82 Miss. 548, 34 So. 2; Jones v. State, 84 Miss. 194, 36 So. 243; Herring v. State, 87 Miss. 628, 40 So. 230; Garner v. State, 93 Miss. 843, 47 So. 500.

The declarations made by appellant's co-defendant, after the killing, but in appellant's presence, were incompetent, and should not have been allowed in evidence before the jury; especially as the declarations were not made to appellant but the surrounding crowd of persons. It is settled that when the state, in a criminal trial, offers testimony of this character, it must be clearly shown that the incriminating statement was heard, and not denied, by the defendant. Irving v. State, 92 Miss. 662, 47 So. 518. See also 2 Wigmore, Ev. 1257; Kelly v. People, 55 N.Y. 565; People v. Koerner, 154 N.Y. 355; McKee v. People, 36 N.Y. 113; State v. Epstein, 25 R. I. 131.

In the absence of clear proof that appellant heard the alleged declarations of the state's witnesses, Reynolds and Newman, as he lay wounded upon the ground immediately after the shooting, it will hardly be presumed that appellant did hear and understand the import of the words, especially as it is not denied that he was dazed, weak from loss of blood, his arm being shot off, and his whole nervous system wracked by intense physical suffering. Gillum v. State, 62 Miss. 548; Lanergan v. People, 39 N.Y. 39; Williams v. State, 42 Ark. 380; Jones v. State, 65 Ga. 147; Simmons v. State, 61 Miss. 242.

Geo. Butler, assistant attorney-general for appellee.

Considered in the light of all the testimony in this case, the first instruction for the state cannot have operated to the prejudice of appellant. It may be that the evidence failed to show that the appellant had his hand in his pocket on his pistol, at the time he spoke to Dixon. But this is an immaterial matter, and in no way prejudiced appellant's rights before the jury. Thomas v. State, 61 Miss. 60; McCoy v. State, 91 Miss. 257, 44 So. 814.

It is contended by appellant that error was committed in admitting, over appellant's objections, certain statements made in the presence of the appellant while the appellant was lying wounded on the ground, which remarks wore not at the time denied by appellant, for the reason that he did not hear or understand them. It is true that the appellant was seriously wounded and was lying on the ground when these statements were made and it appears that he had sufficient understanding at the time to respond to questions propounded to him and, to use the language of one of the witnesses, "He was in his right mind resting easy and lying quiet." These statements were addressed to him, and the court below confined the testimony of the witness to such remarks as were made in the immediate presence of appellant. Hence there was no reversible error. McCoy v. State, 91 Miss. 257, 44 So. 814; Thomas v. State, 61 Miss. 60; 2 Wigmore Ev. § 1072.

Argued orally by J. F. Barbour, for appellant, and by George Butler, assistant attorney-general, for appellee.

OPINION

WHITFIELD, C. J.

This case is a very close one on the facts, and is not, therefore, a case in which we can say that any serious error is not reversible. The first instruction for the state is in the following words: "The court instructs the jury, for the state, that if you believe from the evidence beyond a reasonable doubt that Will Tate met Bunk Dixon in the public road, and that Will Tate, with his hand in his pocket and on his pistol, said to Bunk Dixon, 'Can you play the same game you played last night?' or words to that effect, intending by the use of the remark to invite and provoke a difficulty with deadly weapons then and there in the public road, at a time that Bunk Dixon was doing nothing that would cause any apprehension of danger to Tate, and that the language so used did then and there invite and bring on the difficulty, in which deadly weapons were used in the public highway, and in which Bunk Dixon lost his life, then Will Tate is guilty of murder; and this is true, even though the jury may believe from the evidence that Bunk Dixon fired the first shot." The language of this instruction, "with his hand in his pocket and on his pistol," is erroneous, for the obvious reason that there is no evidence whatever in the record to show that the defendant had his hand in his pocket on his pistol. But we would not reverse for this inaccuracy alone, since it does not seem to be very material whether he had his hand on his pistol in his pocket, or whether he had his hand on his pistol in his bosom. But the fatal vice in the instruction is that it effectually cuts off the right of self-defense. We have over and over again warned circuit judges against giving this sort of charge, and wherever it is given and a conviction results the judgment will always be reversed, except where this court can say, looking over the completed record, with confidence, that the defendant's guilt is so overwhelmingly manifest that no other verdict than that of guilt could probably be rendered. We cannot say this in this case, and this charge is, for that reason, reversible error.

In the course of the trial it was shown by the state, by the testimony of the witnesses Julius Reynolds and Hastings Newman, that after the appellant had come back from the pursuit of the deceased, and had fallen on the ground one Will Reddick, who is also under indictment for this same offense, said, not apparently addressing the remark to the appellant, but to the crowd generally, "I told him to get the drop on the son of a bitch and not to say anything to him." The witness Newman adds this last statement, "not to say anything to him." Neither of these witnesses testifies that the remark was addressed directly to the appellant. Clint Tate does testify that he heard him make practically that remark to the appellant himself. The appellant made no response to...