Wilkinson v. State

• Decision Date: 07 June 1926
• Docket Number: 25241
• Citation: Wilkinson v. State, 143 Miss. 324, 108 So. 711 (Miss. 1926)
• Court: Mississippi Supreme Court
• Parties: WILKINSON v. STATE. [*]

108 So. 711

143 Miss. 324

WILKINSON v. STATE. ^[*]

No. 25241

Supreme Court of Mississippi

June 7, 1926

(In Banc.)

1 HOMICIDE.

In prosecution for murder, instruction that, in view of fact that defendant police officer was trying to arrest deceased without authority of law, deceased had right to resist with all necessary force, held erroneous and in conflict with other instructions on self-defense.

2 HOMICIDE.

Right to resist unlawful arrest is phase of right of self-defense.

3 HOMICIDE.

Officer attempting to make unlawful arrest is not cut off from right of self-defense.

4 WITNESSES.

In prosecution for murder, refusal to permit defendant to question state's witness relative to statements morning after killing that deceased had thrown defendant and another police officer "right and left," for purpose of laying predicate to discredit testimony that killing was not in self-defense, held erroneous.

5 WITNESSES.

Testimony of state's witness may always be discredited in proper manner.

6. HOMICIDE.

Statement of deceased before death that he did not think he was going to live and wanted defendant to know that he was not at fault held inadmissible as dying declaration.

7. HOMICIDE.

In order that dying declaration be admissible, declarant must have given up all hope of recovery.

8. HOMICIDE.

Where accused in murder trial introduced witnesses who testified to his good character for peace, state was not entitled in cross-examination to seek to discredit such testimony by questioning witnesses as to particular deeds of violence alleged to have been committed by defendant after homicide.

ETHRIDGE, J., dissenting.

HON. E. L. BRIEN, Judge.

APPEAL from circuit court of Warren county, HON. E. L. BRIEN, Judge.

Robert Wilkinson was convicted of manslaughter, and he appeals. Reversed and remanded.

Reversed and remanded.

Anderson, Vollor & Kelly, A. A. Chaney and Harry K. Murray, for appellant.

I. The defendant, with the permission of the court, recalled the witness Mr. Barfield, in order to ask him about a conversation he had at his house with Chief of Police Tucker the morning after the shooting and in the presence of F. P. Cashman, a reporter for the Vicksburg Evening Post, and C. W. Thigpen, the police justice of the city of Vicksburg. In his original testimony given at the trial he made no statement to the effect that Leonard Cherry was so large and powerful that the officers could not handle him at all and that he threw them right and left. In recalling the witness to the stand, the defendant wished to inquire if such a statement of facts were true and if he had made a statement concerning the facts as the defendant attempted to inquire about. If Cherry knocked the officers right and left on the night he was shot, neither Barfield nor his wife testified to that fact on the witness stand, and their testimony showed that Cherry did nothing to either Wilkinson or Willis. By their failure to testify that Cherry knocked the officers right and left after he had made such a statement to the gentlemen named above, it became a material inquiry for the consideration of the jury.

The defendant expected that Barfield would deny that he had made such a statement to the chief of police, and it was the purpose of counsel for the defendant to lay the predicate for the impeachment of the witness by the chief of police, the city judge and Mr. Cashman. The predicate was properly laid for his impeachment on this most material inquiry and we submit that the action of the court in refusing to allow us to lay this predicate was committing prejudicial error.

II. Miss Elizabeth Alderman, a nurse, was present at the bedside of the deceased a number of times, and her testimony was important in appellant's behalf to show that the deceased, after he realized that his wounds were fatal, made a statement, using Bob Wilkinson's name and said, "He just wanted him to know it wasn't his fault."

This testimony certainly comes within the rule of evidence applicable to dying declarations, and we feel sure that if the statement had been made in the presence of Miss Alderman by the deceased that he was suffering death through the fault of Wilkinson, this testimony would have been admitted at the trial.

III. The most serious and damaging error to the defendant was committed by the court through questions propounded by the district attorney to the witnesses who were introduced to prove his good character. Twenty-seven citizens of Vicksburg, including county and city officials, were called to prove the good character of the defendant and all of them were questioned by counsel for the defendant along the usual lines, and upon cross-examination the district attorney interrogated a number of these witnesses about alleged specific acts of violence that the defendant committed subsequent to his difficulty with Leonard Cherry. If the defendant committed specific acts of violence previous to the day of the shooting of Leonard Cherry, there might be no serious objection offered, but in no state of the case would testimony be permitted to show acts of violence subsequent to the time of the offense for which the defendant was indicted and for which he was being tried. See Underhill on Evidence, p. 150, sec. 83.

IV. We submit that the court erred in granting the instruction for the state telling the jury that Leonard Cherry had the legal right to kill the defendant, not to save his own life or prevent serious bodily harm being done to him, but declaring that Cherry "had a legal right to use such force as was necessary to prevent said arrest, or attempt to force deceased to enter said police car and go with defendant, or to prevent defendant from placing handcuffs or manacles on him, the said deceased, even to the extent of taking the life of defendant."

We have always believed that in order to justify, under the law, the killing of a human being, it was necessary to show that the defendant's life was in danger or that he was in danger of some great bodily harm. If Wilkinson had attempted to put handcuffs on Cherry, we submit that he could use such force as was reasonably necessary to prevent Wilkinson from putting them on him. Under all of the evidence it was shown that Cherry did use all the force necessary to prevent Wilkinson from putting the handcuffs on him and that when Wilkinson presented the handcuffs to him, he knocked them from Wilkinson's hands to the ground, and they remained on the ground until after the shooting.

Having been instructed in this confusing way that Cherry had the legal right to kill Wilkinson for an attempt to handcuff him the jury was thereby led into the belief that if the mere attempt to put handcuffs on Cherry justified Cherry in killing Wilkinson, then Wilkinson had no right after he presented the handcuffs to Cherry to shoot him even in defense of his own life. This instruction was improper, misleading and confusing, and it was prejudicial to defendant's right for which the judgment against him should be reversed.

J. A. Lauderdale, Assistant Attorney-General, for the state.

I. The testimony in this case is sufficient to sustain the verdict of guilty of manslaughter. Wilkinson and Willis were policemen, acting as such and on duty at that time. They were armed with deadly weapons; they knew that they had no warrant for the arrest of Cherry; they knew he had violated no law; and they knew that he was not committing a crime in their presence. According to their sworn testimony, they had absolutely no right to arrest, or in any way interfere with deceased.

Even taking the testimony of Wilkinson himself and construing it most favorably to his theory of this case, he was the aggressor in this difficulty. Cherry had the legal right to resist and to use such force as was necessary to prevent this unlawful attack upon him, and Wilkinson had no right to defend himself, for his unlawful act had provoked the difficulty, unless he in good faith abandoned the difficulty, and even he does not claim to have done this.

The theory of the state is that Wilkinson shot Cherry when he was in no danger, real or apparent, of death or great bodily harm. Wilkinson claims that Cherry was right at him and was in the act of grabbing his gun when he fired the second and fatal shot. The witnesses for the state contradict him in this. They say that Cherry was several feet away from him, and was not advancing on him. He is also contradicted by the physical facts.

We have then a case where two policemen, both armed, attacked an unarmed man and claim that they killed him in self-defense, when he was only defending their unlawful attack upon him with his fists and when neither Wilkinson nor Willis was in any danger at the time Cherry was shot.

II. T. R. Barfield was introduced as a witness for the state. His examination was concluded and he was excused from the stand. Later on during the trial he was recalled to the stand and asked whether or not a certain conversation occurred between him and other parties the morning after the killing.

The defendant stated to the court that he intended to show either by this witness or by the chief of police and others who heard the conversation, that the witness Barfield stated at his home on the morning after the killing that the deceased Cherry was so large and powerful that the officers could not handle him at all; that he threw them right add left.

This testimony was incompetent, for the reason that even though he could handle these men or even though they could not handle him, it would not justify them to attack him first in an unlawful manner, causing him to handle them; and then give them the right to shoot and kill him because they were unable to overcome him in a physical...