Walton v. State

• Decision Date: 08 January 1906
• Citation: 39 So. 689,87 Miss. 296
• Court: Mississippi Supreme Court
• Parties: JAMES W. WALTON v. STATE OF MISSISSIPPI

39 So. 689

87 Miss. 296

JAMES W. WALTON v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

January 8, 1906

FROM the circuit court of Madison county, HON. DAVID M. MILLER Judge.

Walton the appellant, was indicted, tried, and convicted for the murder of his wife, and appealed to the supreme court. The facts are sufficiently stated in the opinion of the court.

The state's instruction No. 10 was in the following words "The court instructs the jury that while no living eyes save those of the defendant and the slain woman, may have looked upon the tragedy which ended Mrs. Walton's life yet, if the jury believe beyond a reasonable doubt from the facts and circumstances and the dying declarations of the deceased, made under a sense of impending dissolution, and admitted by the court as evidence in the case, that Mrs. Walton came to her death at the hands of her husband, the defendant, when she was doing nothing to him which would evince to a reasonably prudent man, situated as he was then, that his life or his person was then and there in imminent danger at her hands, and that he willfully and deliberately killed the deceased, when he was in neither real nor apparent danger of losing his life or of great bodily harm at her hands, then he is guilty as charged, and the jury should so find."

Reversed and remanded.

J. W. Cutrer, for appellant.

It was error on the part of the court to overrule the application of the appellant for a continuance of his cause because of the absence of the witness Missouri Franklin. This witness was under the process of the court. She had first been summoned as a witness for appellant on the 9th day of August, 1904, and had been in attendance upon the court ever since until the time the case was called for trial.

This motion was made on the 16th day of January, 1905, and set forth that appellant was advised that the witness was sick in bed; that she was a resident of the county; and that her attendance could be procured by compulsory process, and the affidavit asked for compulsory process.

The facts which were sought to be proved by the witness were of the most material kind, and were facts which could not be proved and which were not proved on the trial by any other witness.

The court overruled the motion for continuance and forced the appellant to a trial upon the statement of the district attorney that he would admit so much of the testimony of the witness as was determined to be competent to be read to the jury from the application for a continuance in lieu of the presence of the witness. To this action of the court appellant excepted.

It appears that the witness continued ill during the remainder of the term, and was not able to attend the court at all, although other process was issued for her; nor was appellant able to secure the attendance of the witness upon the motion for a new trial, nor to secure an affidavit. Whit v. State, 85 Miss. 208 (S.C., 37 So. 809) Montgomery v. State, 85 Miss. 330 (S.C., 37 So. 835) Scott v. State, 80 Miss. 197 (S.C., 31 So. 710) ; Watson v. State, 81 Miss. 700 (S.C., 33 So. 491) ; Caldwell v. State, 85 Miss. 383 (S.C., 37 So. 816).

The court erred in admitting incompetent evidence over the objections of appellant.

The dying declaration testified to by Dr. Jones, as witness for the state, was in large part incompetent. While it may have been competent for the witness to have testified that the deceased told him that appellant had shot her, it was not competent for him to be permitted to testify further that the deceased said that appellant had shot her to get her out of the way. The alleged statement of the deceased, as testified to by the witness Jones, was a mere expression of her opinion, and, therefore, the same was clearly incompetent. Lipscomb v. State, 75 Miss. 559 (S.C., 23 So. 210).

There were three state's witnesses in attendance who must have known more of these facts than any one else, and who would not have colored them in favor of appellant. There were two daughters, Mary and Ella, and a son, Joseph--the issue of the deceased by a former husband. These were called and sworn and kept in attendance upon the court, and the two girls were ultimately placed upon the witness stand as state's witnesses. After their examination by the state, they were turned over to the appellant for cross-examination, and then transpired what a participant in the trial cannot but feel was the culmination of a series of rulings which were most antagonistic to appellant. In the course of the cross-examination the witnesses were asked if they had not at once upon the alarm gone to their mother, and if it was not true that the first words which she spoke to them were to tell them that she knew that she was mortally wounded, and that to their inquiries she had responded, freely and voluntarily and repeatedly, that she had shot herself.

The doors of the temple of justice should not be closed in the face of the truth. Truth should enter in, and not be objected to and excluded at the threshold.

Instruction No. 10 assumes as its predicate that no eyes, except those of the deceased and the defendant, looked on the tragedy which ended her life; in other words, the plain assumption was stated, and the jury were told in language the import of which no sane man could mistake, that the defendant was present when the deceased was killed and that he killed her, and that they should find him guilty as charged--that is, that he must be hanged--because to follow the language of the instruction the evidence showed that the deceased was doing nothing to the defendant, or, e converso, the evidence did not show that the deceased was doing anything to the defendant, which would evince to a reasonably prudent man, situated as defendant was, that his life or person was then and there in imminent danger at the hands of the deceased.

J. N. Flowers, assistant attorney-general, for appellee.

The court below did not commit any reversible error in refusing to allow the defense to cross-examine Mary and Ella Jenkins as to a matter which had not been brought out in the examination in chief of these same witnesses and was not in surrebuttal. It was, perhaps, wrong for the court not to allow this cross-examination. But it is a sound rule that persons coming into this appellate court must make it appear, not only that error was committed in the court below, but that such error was prejudicial or harmful, and that the effects of it could only be avoided by an appeal to this court. This is reasonable. It prevents counsel from sitting by and watching errors creep into the record without trying then and there to avoid the effects of them and without making it appear that they are errors in substance as well as in form. It requires litigants to exhaust their remedies and resources in the trial court. It prevents them from attempting to cover up reversible errors in the record in order that time may be killed with an appeal.

There is no reversible error in the instructions given for the state. They are numerous and in some respects erroneous. But all the errors were cured by the instructions for the defense. We ask the court's special attention to these instructions for the defense, to their thoroughness and completeness. They suggest to the jury every possible excuse which might be accepted to warrant a verdict of acquittal they give the defendant the benefit of every rule of law which makes it difficult for the mind of a...