Ward v. State

• Decision Date: 10 June 1918
• Docket Number: 20165
• Citation: 78 So. 782,117 Miss. 847
• Court: Mississippi Supreme Court
• Parties: WARD v. STATE

78 So. 782

117 Miss. 847

WARD v. STATE

No. 20165

Supreme Court of Mississippi

June 10, 1918

APPEAL from the circuit court of Lowndes county, HON. T. B. CARROLL Judge.

Jim Ward was convicted of arson and appeals.

The facts are fully stated in the opinion of the court.

Case reversed.

W. B Stribling, for appellant.

There were tracks of a human being seventy-five to one hundred yards from barn burned, but Cocke testified a number of negroes lived on his plantation that wore shoes ranging in number from eight to ten, and the kind of shoes of the track found, yet, it is contended that they were appellant's tracks.

This was all the evidence that appellee had in the lower court to obtain a conviction, which appellant claims is not sufficient to warrant same. It is assumed that the jury in rendering their verdict of guilty were affected by the outside consideration of the wealthy planters of the neighborhood where the barn was burned, that they would heartily approve of their decision. See Barker v. State, 76 So. 676. There was no threats shown that appellant was going to burn the barn, or any ill will existing between the appellant and the owner of the barn, and if there had been, then the evidence would have been at most only suspicion and insufficient to support a conviction, which the court has held in Strong v. State, 43 Miss. 392; Luker v State, 14 So. 259, the court held: 'That tracks about the size of defendant's were found around the pen and followed to, and some way along the road leading to defendant's house, is insufficient to convict. See, also, Bloden v. State, 54 So. 241; Spears v. State, 92 Miss. 613, 46 So. 166, 16 L. R. A. (N. S.) 285; Scott v. State, 66 So. 973; Carter v. State 64 So. 215, 50 L. R. A. (N. S.) 1112.

Appellee contends that the motive which prompted appellant to burn the barn was the forbidding by Cocke to permit appellant to hunt squirrels on his plantation, which appellant did not know was posted at the time, and when notified, readily agreed not to do so again. See evidence of Cocke, Trans. of Rec., pg. 17, No. 2, and evidence of appellant Trans. of Rec. pg. 90; however, motive alone is not proof of crime. See Luker v. State, 14 So. 529.

When appellant was taken by the officer hand-cuffed in the neighborhood where the fire occurred, to the preliminary trial, a crowd of white citizens had assembled, and they took him in the barn where the trial was to be held and threatened to take his life if he did not confess to the crime, which he did to save his life and prevent personal violence, which happened a few minutes before the arrival of Hardy on the scene.

The court below correctly ruled this confession out made to Hardy and Evans and their testimony, but the poison had already been injected into the minds of the jury and a conviction had, which was desired by appellee, regardless of the law and the evidence, and for this reason many negroes, whose labor is much needed here, are leaving the state because they are unable to obtain a fair and impartial trial in the lower courts, and few are financially able to appeal to the higher courts to receive justice.

Why did the dogs first go to the home of Pete Dillards, in the house and on the bed? Did he wear the same size and kind of shoe of the track found, and did the heel of the shoe have tacks therein? Did the dogs ever come in contact with Pete Dillard to see if they would recognize him? Why was he not arrested and charged with this crime? Was it because he was a tenant on the Cocke plantation and to do so would cause dissatisfaction and disturbance among the other tenants on said place. Is it not possible the barn was struck by lightening that caused the fire? It is probable, as other buildings in the same neighborhood in the past year had been set on fire this way and burned.

But appellant is not required to prove how the fire originated, but it is incumbent upon appellee to prove appellant's guilt of the crime charged beyond a reasonable doubt and to a moral certainty, which we conscientiously believe appellee has failed to do, and confidently ask a reversal of this cause.

Ross A. Collins, Attorney-General, for the state.

I think the court was in error in excluding the testimony of Mr. Hardy as to the confession of the appellant merely because another confession made to Mr. Evans was made under duress. This action of the court took from the jury some very material testimony for the state.

I think the error assigned as to criminal agency not being shown cannot be maintained. The facts and circumstances are sufficient to show the criminal agency. Spears v. State, 92 Miss. 613, 46 So. 166.

As to whether the testimony after the exclusion of the confession is sufficient to sustain the verdict of the jury, I submit to the court on the record without argument.

COOK P. J. SMITH, C. J., and SYKES, J., dissent. ETHRIDGE, J. and HOLDEN, J. concurring.

OPINION

COOK, P.J.

The grand jury of Lowndes county returned an indictment against appellant charging him with arson, and the petit jury rendered their verdict of guilty as charged. The defendant appeals to this court.

The evidence submitted to the jury was about as follows: Somewhere near midnight the barn of C. H. Cocke was burned. The evidence discloses that the night was dark and threatening rain; there was considerable lightning, but it appears from the testimony of the witnesses nearest to the scene that the storm cloud was in the distance, and according to these witnesses there was no indication that the barn was struck by lightning, but that the fire was started by some criminal agency. The statement of these witnesses about the origin of the fire, no doubt, carried conviction to the minds of the jury. If honest, their evidence strongly discredits the theory that lightning caused the fire. About midnight, Mr. Harris, the manager of the plantation, was awakened by the barking and "lunging" of a setter dog near his sleeping quarters, when he discovered that the barn was on fire, and immediately aroused the owner.

These two witnesses testified that the indications were that the fire originated in the northeast corner of an old log crib, which adjoined the barn. A lot of shucks were in the crib. The crib was fenced off from the barn, and the approaches to the barn usually in use were all to the west and south. Suspecting incendiarism, the owner and his manager took precautions to prevent anybody from passing around the barn and the crib where they believed the fire had originated. So they at once telegraphed for trained bloodhounds having a reputation for truth and veracity. These hounds were in the control of an experienced man. About twelve hours after the fire was discovered, the hounds were taken to the rear of the crib, where Mr. Cocke and Mr. Harris believed, from the indications, the fire originated. The dogs were taken over a circle and immediately picked up a trail near where it was believed the fire was started, and trailed to a freshly plowed cornfield, where was found a track made by a "moccasin shoe or an old piece of a shoe," with nail points at the heel, and it also appeared that the person who made the track was running. It also appears that a shower had fallen about the time the barn had finished burning, and it also appeared that the rain had fallen on the track the dogs were running. In other words, the rain came after the track was made in the mud.

The trail was followed through the field and to the public road, and along the road for some distance, when the dogs turned from the road and went to a cabin occupied by a negro named Pete Dillard. The dogs went up on the porch and into the house, but came out, and were taken to the end of the porch, and continued trailing from there in a "devious course" through the pasture and cornfield and back to the public road, where was found a moccasin track in the soft ground, which the witness said was the same track the dogs had started with. Without going into all the details of the chase, the evidence discloses that the dogs carried the trail to the house of the defendant, and in their way pointed out the defendant as the man they had trailed from the scene of the crime.

It appears that the defendant had been plowing in a field near his home the morning after the fire, and when this was ascertained the trainer of the dogs took the dogs to the field, and they soon picked up a trail of a man who was wearing a moccasin similar to the one made near the scene of the crime. This trail was followed to a place where it was lost or ended, and it was evident that then the man who made the track at this point mounted his mule. So far as the testimony of the dogs is concerned, it may be said that is was fairly complete, and was corroborated by the defendant himself, as we will presently show.

In addition to the testimony of the dogs, the evidence shows that a short time before the burning of the barn Mr. Cocke had learned that the defendant had been hunting on his land, and when Mr. Cocke accused him of it he admitted the charge, but said that he did not know that Mr. Cocke objected, and would not do so again. There is some evidence to indicate that the defendant resented Mr. Cocke's interference with the defendant's hunting privileges.

This is about all of the evidence tending to prove the defendant guilty of the crime charged against him, except an alleged voluntary confession. The confession was related by a citizen of high character, and it is admitted that the defendant did so confess, but after this confession had been related to the jury, it was made clear to the court that it was not free and voluntary, but on the contrary it clearly appears that the so-called confession had been extorted from him by...