Wilkerson v. State

• Decision Date: 31 December 1923
• Docket Number: 23353
• Citation: 98 So. 770,134 Miss. 853
• Court: Mississippi Supreme Court
• Parties: WILKERSON v. STATE

98 So. 770

134 Miss. 853

WILKERSON v. STATE

No. 23353

Supreme Court of Mississippi

December 31, 1923

Division B

Suggestion of Error Overruled Feb. 11, 1924.

APPEAL from circuit court of Scott county, HON. G. E. WILSON, Judge.

Henry Wilkerson was convicted of manslaughter, and he appeals. Affirmed.

Judgment affirmed.

Easterling & Nichols, for appellant.

I. The court erred in refusing to hear the testimony as to the dying declaration in the absence of the jury, and in refusing the defendant's counsel the right to cross-examine the witnesses offered by the state as to such dying declaration.

It will be observed that the trial court announced that the defendant's counsel would not be permitted to cross-examine this witness as to the alleged dying declaration, and that the state's counsel would not be required to go into the matter of the dying declaration fully, in the absence of the jury. This being made manifest by the court, defendant's counsel not wishing to appear captious, asked the court if he would consider a running objection to all these questions and answers with reference to the dying declaration as to the details of homicide, or anything else said by him. This was allowed by the court and it was agreed to by the court that all the testimony as to the dying declaration afterwards following would be introduced over the objection and the exception of defendant's counsel, and that the court would allow the district attorney afterwards with this and other witnesses to go into a full investigation of these facts before the jury and not allowing nor permitting any further hearing before the court in the absence of the jury.

It has been held by this court in Lambeth v. State, 23 Miss. 354; Beel v. State, 76 Miss. 507; Fanny v State, 101 Miss. 380; Sparks v. State, 133 Miss. 266, that the proof of the competency of a dying declaration must be made to the court beyond a reasonable doubt before it is admissible. This ruling was also approved in McNeil v. State, 115 Miss. 678, 76 So. 625. In Marley v. State, 69 So. 212, it will be seen that the trial court excluded all statements made by the deceased as to his private business as immaterial and prejudicial to the defendant.

If the trial court in this case had given defendant's counsel an opportunity to examine the witnesses in the absence of the jury, all testimony of this character could have been eliminated, however, not only was it not eliminated in this case, but it was by the court allowed to go to the jury.

This court deals with this question, in Lipscomb v. State, 23 So. at page 214. We earnestly submit that the action of the trial court in refusing to conduct or allow defendant's counsel to conduct a preliminary examination into these matters was a denial to this defendant of a right to be heard either by himself or counsel in an important step of his trial.

II. Appellant also submits that the court was in error in allowing and permitting the state to prove as a part of the alleged dying declaration many statements, facts and circumstances which were highly prejudicial to this defendant, and not necessarily a part of said declaration.

The state was permitted to prove, over the defendant's objection, that the boys of the deceased were told to take care of his property and their mother and his little children. The state was permitted to prove, over defendant's objection, that friends were called upon to pray for him. In fact, the testimony along this line without regard to whether it was before or after the alleged dying declaration, was permitted by the trial court to be introduced, and continued up to and included the actual last breath of the deceased.

Appellant contends that the court was in error in admitting testimony of conclusions and opinions by witnesses for the state who testify with regard to the physical signs at the scene of the difficulty. We have heretofore stated and quoted testimony to show the court that there was a vital issue between the witnesses for the state and the witnesses for the defendant as to where the deceased was at the time when the shooting began.

We submit this court in two cases exactly in point has condemned this character of testimony, and held that admission of such testimony is a reversible error. Foster v. State, 12 So. 822; Temple v. State, 82 So. 429.

III. Appellant submits that the trial court was in error in sustaining objections to questions propounded by the defendant's counsel, and seeking to place before the jury the defendant's reputation for peace in the community in which he lives. We have already undertaken to show the court that there was a sharp conflict in the evidence as to the defendant's guilt or innocence, and that while in our opinion the great preponderance of the evidence supported the defendant's statement of how the shooting occurred, yet there was testimony for the state accepted by the jury to the contrary. Under these circumstances it became of vital importance to this defendant that he be granted by the trial court the benefit of his character for peace as this was a strong circumstance tending to corroborate his story in regard to the shooting.

On what has been said in reference to the introduction of evidence of good character, we refer to Hussel v. State (Ala.), 6 So. 423, 424; Coleman v. State, 59 Miss. 490; French v. State, 63 Miss. 393; Pickens v. State, 61 Miss. 567, 568; State v. Grate, 68 Mo. 27; 1 Wigmore on Evidence, 55 et seq.

J. W. Cassedy, also, for appellant.

There is a rule of law that is universally applicable to dying declarations, as follows: "No dying declaration, nor any part of one, is admissible in evidence unless the same would be competent and relevant if made by a living witness." Lipscomb v. State, 75 Miss. 559, 23 So. 230; Guest v. State, 96 Miss. 871, 52 So. 211. See, also, McNeal v. State, 115 Miss. 691.

The state's whole case rested on the place where the difficulty took place. In Cumberland v. State, 110 Miss. 521, the state contended that Cumberland shot and killed Liddell in a crap game, dragged his body about seventy-five yards, laid a knife across his hand and a pistol by his side. Cumberland claimed that he killed him in necessary self defense at the place where the body was found lying. The state used one purported eye witness who said that Cumberland shot the man while they were in a crap game. According to the state's contention, if Cumberland killed Liddell at the crap game, it was murder; if he killed him where the body was found, it was justifiable homicide. The witness, McElroy, testified, "it looked like there had been a crap game there." This case was reversed, and rightly so. The court held that McElroy should have stated the facts and let the jury draw its own conclusions therefrom.

Now we respectfully submit that the witness Bob Weems in the case at bar, could not truthfully have stated that there had been a struggle between Wilkerson and Jones at this indicated place, and that they knocked the rails back. He should have described the condition there, and not stated, "it looked like where he struggled with Mr. Wilkerson." It was up to the witness only to describe the condition and permit the jury to draw its own conclusions. We respectfully submit that in view of the fact that the state contended that the shooting took place at the corner of the rail fence and that Wilkerson contended that the shooting took place between the rail fence and his garden, that this highly prejudicial testimony should and will reverse this case.

H. T. Odom, Assistant Attorney-General, for the state.

I. I am unable to agree with counsel for appellant that the action of the trial court with reference to the admission of dying declaration herein was either improper or prejudicial to the appellant. The district attorney in the absence of the jury examined the wife of the deceased with reference to the dying declaration of her husband. The examination as it appears to me was sufficient to determine the admissibility of this evidence. It discloses that the statements were made by the deceased at the time when he was conscious that he could not live, and further that the statements were made in contemplation of death. When the trial court is satisfied of these facts this is all that is required.

It is again insisted that the court erred in permitting the state to prove over defendant's objection that deceased told one of his boys to take care of his property, their mother and his little children. There can be no merit in this contention for the reason that it is further circumstance tending to show that deceased fully realized his impending dissolution. The jury who is the sole judge of the weight and worth of this testimony, should also be informed as to the frame of mind of the declarant in order that they may determine the proper weight to be given to the statement. Again I do not see how this testimony could be prejudicial to the appellant because it was in evidence that the appellant had killed the deceased and further that the deceased had left a widow and children, on the mercy of the world. In other words, this particular testimony did not put any new or additional fact before the jury that would be calculated to bias their judgment in rendering a verdict.

I deem it unnecessary to cite authorities dealing with the admissibility of dying declarations. The court is entirely familiar with this law. I have carefully examined the authorities cited by appellant and have reached the conclusion that the trial court did not do violence to any of these decisions in the trial of the case at bar. I have no quarrel to make with any of these decisions, but respectfully submit that they do not support counsel in their contention here.

II. Counsel for...