Williams v. State

• Citation: 49 So. 513,95 Miss. 671
• Decision Date: 31 May 1909
• Docket Number: 14,047
• Court: United States State Supreme Court of Mississippi
• Parties: JOSEPH WILLIAMS v. STATE OF MISSISSIPPI

49 So. 513

95 Miss. 671

JOSEPH WILLIAMS v. STATE OF MISSISSIPPI

No. 14,047

Supreme Court of Mississippi

May 31, 1909

FROM the circuit court of Forrest county, HON. WILLIAM H. COOK Judge.

Williams appellant, was indicted and tried for and convicted of murder and appealed to the supreme court. A statement of the facts in view of the opinion of the court, is deemed unnecessary.

Affirmed.

Luther James, for appellants.

The evidence upon which the conviction was had was purely circumstantial. There was no motive shown for the killing but the state tried to supply this motive, and was permitted to supply it, to the extent that it prejudiced the minds of the jury against the defendant, in showing that the People's Bank was robbed shortly after the killing; that the defendant was in the bank the day before the killing with the deceased and that witnesses saw money in the bank. This character of evidence was clearly incompetent.

The court below permitted the state to show by witness Garner that his friend Watkins whom he claimed to be rooming with upon the night of the killing was present as the defendant's witness at a former trial of the case, and was not used by the defendant. Also witnesses Gray and Bennett were permitted to testify that they had been summoned by the defendant at the two previous trials and put in his witness room and not used by him. What purpose could this evidence serve?

Abbott in his excellent work "Trial Brief in Criminal Causes," page 658, says that this character of evidence is incompetent. He cites State v. Rosier (Iowa), 8 N.W. 345; Com. v. Schmous (Pa.), 29 A. 644; Brulo v. People, 16 Hun. 119.

The court in modifying the defendant's fifteenth instruction may have through a mere oversight got it into its present phraseology. It simply peremptorily instructed the jury to find the defendant guilty. It could mean nothing less.

The trial court also erred in giving the instruction offered by the state upon the question of circumstantial evidence.

It has been only a short time since the court through Chief Justice WHITFIELD in the case of Haywood v. State, 90 Miss. 451, 43 So. 614, criticised a similar instruction, and remanded the case because it was given.

In order to convict upon circumstantial evidence, the jury not only has to believe the defendant guilty from such evidence beyond a reasonable doubt, but as was said in the Haywood case (supra), it must exclude every other reasonable hypothesis than that of guilt. The latter phrase seems to have been studiously left out of the instruction, as it was clearly shown by the evidence that there were several other hypotheses than that of the defendant's guilt.

George Butler, assistant attorney-general, for appellee.

It is first said that it was fatal error for the state to attempt to show that after the assassination the bank at which appellant and deceased were employed was found to have been looted. It is only necessary to say in this connection that it would have been perfectly proper if the state could have done so to have shown that the motive for the killing was to cover up appellant's defalcation or to get rid of deceased as cashier of the bank so that he might have secured the position, but the state being unable to connect appellant with the looting of the bank and thereby show motive for the assassination, the court on motion excluded the whole of this preferred testimony and instructed the jury to disregard it. We are perfectly familiar with the rule that when incompetent testimony highly prejudicial is once admitted its vicious effect cannot be eradicated by its subsequent exclusion; but when, as here, the testimony offered is perfectly competent and is not of a prejudicial character its subsequent exclusion eradicates its evil effect.

It is next complained that the court should not have permitted Garner to testify that Watkins, his roommate, was pres-present as defendant's witness at a former trial of the case and was not placed upon the stand and also to permit Gray and Bennett to testify that although they had been summoned for the defendant on two previous trials and were placed in his witness room that they were not called upon to testify. Wigmore in vol. 1, section 285, says: "The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be eludicated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavorable to the party."

It is next complained that the modification by the court of a certain instruction was erroneous. The instruction, as it appears in the record, is, of course, erroneous by reason of the omission of the word "not" before the word "guilty" in the last line. This was of course a mere clerical error.

It is next complained that the court should not have given the instruction on circumstantial evidence and it is contended that the instruction falls within the condemnation of Haywood v. State, 90 Miss. 461, 43 So. 614. In Haywood's case the court instructed the jury that circumstantial evidence in law is as good as any other kind of evidence. The Chief Justice in discussing that instruction pointed out the essential difference in the very nature of circumstantial testimony and direct testimony and it will be noted that in condemning that instruction the court did so because of its first clause, for the court there said "we are of the opinion, therefore, that the statement which we have criticised in this instruction is a fundamental misconception and in this character of case may most likely have misled the jury and contributed materially to the verdict." In the instant case the court instructed the jury that circumstantial...