Thurmond v. State

• Citation: 212 Miss. 36,53 So.2d 44
• Decision Date: 11 June 1951
• Docket Number: No. 37879,37879
• Parties: THURMOND v. STATE.
• Court: United States State Supreme Court of Mississippi

Page 44

53 So.2d 44

212 Miss. 36

THURMOND v. STATE.

No. 37879.

Supreme Court of Mississippi, in Banc.

June 11, 1951.

E. J. Bogen, B. B. Wilkes, Greenville, Means Johnston, Hardy Lott, Greenwood, for appellant.

J. P. Coleman, Atty. Gen., by Joe T. Patterson, Asst. Atty. Gen., for appellee.

ALEXANDER, Justice.

This is an appeal from a conviction of murder. The jury saw fit to impose the extreme penalty.

The following facts may be accepted as without dispute. Appellant had been drinking steadily throughout the afternoon preceding the homicide. During the evening and up until the early hours of the following morning, he and his companions had traveled in his truck back and forth between several 'night clubs' at which intoxicating liquors were bought and drunk. The last spot visited was the store of J. W. Willis. It was here that the homicide occurred.

The victim was C. C. McGough, the town marshal of Arcola, who was at Willis' place when appellant arrived. Some time between four and five a. m. Thurmond left the place and was followed shortly thereafter by the marshal who just before leaving had stated that he was going outside to try to induce appellant to go home. After a brief interval, the two 'come around the house arguing * * * they were tussling and they fell and Mr. Thurmond got up and shot Mr. Buster (McGough) three times.' Both were armed with pistols. After the two had fallen, appellant arose and shot McGough three times in the back of the body, neck and shoulder. McGough was lying 'in a puddle of water' and was making no effort to resist or defend himself. Appellant had carried his pistol all the afternoon and evening and after the shooting.

There was testimony that McGough's pistol remained in its scabbard, but this point was beclouded by other testimony. However, there is no testimony of aggression by the marshal, and witnesses said his pistol was in his holster after he was shot.

There was no plea or defense of justification. Although the State gratuitiously procured instructions offering the loopholes of self-defense, and heat of passion, there was no testimony to support such defenses. Appellant did not testify.

The first three assignments are based upon the refusal of a peremptory charge and the insufficiency of the evidence. We find no support for these contentions.

The fourth assignment is directed toward the admission, over objection, of a statement made by the stricken officer to a doctor called to his aid. Dr. Spaulding detailed the incident as follows: 'I got up to Mr. McGough and asked him what the trouble was and he said Mr. Thurmond shot him and I asked him what was the trouble and he said Mr. Thurmond was drinking and he was trying to get him to go home or get somebody to drive him and Mr. Thurmond cursed him for everything he could think of and threw him in the ditch and shot him three times in the back.'

This statement was not offered as part of the res gestae nor was it sought to be admitted as a dying declaration, although the dying officer stated 'I don't mind dying but I don't want to die on this ground.' Admission of this part of the statement of deceased is assigned for further error. It is enough to state that there was no objection to this expression. Indeed, it was brought out on cross-examination by the defendant. The supporting basis of the principal statement is that it was made in the presence and hearing of the accused and is admissible as an implied admission or confession. In this connection eyewitnesses placed the accused at distances estimated respectively at five feet, twelve feet, and 'fifteen steps from the victim.' Dr. Spaulding testified that in his opinion appellant heard the statement; that there was no noise or disturbance and 'it was very quiet.' He referred also to a conversation with appellant at this time, including a statement that the latter 'said he was going to drive his car.' The witness could not say with certainty that the accused heard the accusations. There was no showing that accused was unable to hear and understand what was said.

The doctrine that accusatory statements made in the presence and hearing of the defendant are admissible as confessions implied from silence is well established in our jurisprudence as an exception to the hearsay rule. Spivey v. State, 58 Miss. 858; Anderson v. State, 171 Miss. 41, 156 So. 645; Page v. State, 208. Miss. 347, 44 So.2d 459; Wigmore on Evidence, Vol. IV, Section 1071; McKelvey on Evidence, (5th Ed.), Section 128; Greenleaf on Evidence, Vol. I, Section 199; Wharton, Criminal Evidence, Vol. II, Section 656; Underhill, Criminal Evidence, (3rd Ed.), Section 208; 31 C.J.S., Evidence, Sec. 295; 22 id. Criminal Law, Section 734; 20 Am.Jur., Evidence, Sections 567, 570. See also Character v. State, Miss., 53 So.2d 41, this day decided.

It is not to be assumed, however, that the mere presence and hearing of the accused is always sufficient to authorize its admission. The circumstances must be taken into account and these involve all matters which affect the propriety or occasion for a denial, and the question whether a normal reaction would evoke protest. The test frequently is embodied in the generality that 'the defendant is called upon to deny the statement.' See Lewis v. State, 109 Miss. 586, 68 So. 785, where in a dictum the view was expressed that there was an absence of any obligation to deny an accusation made by a child of decedent.

The issue whether a reply is indicated or called for is for the court, and it is for the jury to decide whether the statement was heard and understood. Wigmore, op. cit., supra, Vol. IV, page 74; 20 Am.Jur., Evidence, p. 485; 31 C.J.S., Evidence, Sec. 296, p. 1063. Compare Kroger Grocery & Baking Company v. Harpole, 175 Miss. 227, 166 So. 335. The testimonial quality of such testimony is not based upon its being offered as proof of a fact asserted but as a predicate to the showing of the reaction of the accused thereto. 20 Am.Jur. ubi supra. The conduct of the accused becomes thereby original evidence. McKelvey, ubi supra. We are unable to find error here.

The fifth assignment challenges the 'admission of other crimes introduced by the State to impeach appellants reputation.' These instances arose upon cross-examination of certain character witnesses to the good character of appellant. They were asked, in substance whether they had heard rumors of some difficulty between accused and one Keith involving possession of a pistol by accused and his making of threats. These inquiries met no objection but on the contrary were made the subject of redirect examination by counsel for accused. No basis for error was thereby established.

The sixth assignment assails the first instruction for the State where it is asserted that the word 'design' was omitted in the expression defining murder as involving a 'deliberate (design)'. A certified copy of the instruction properly drawn and showing the omission as a scrivener's error in the record has been sent up. We do not base our conclusion denying this assignment on such corrective...