Wiltcher v. State

• Decision Date: 27 March 1911
• Docket Number: 14,708
• Court: Mississippi Supreme Court
• Parties: LEE WILTCHER v. STATE

54 So. 726

99 Miss. 374

LEE WILTCHER v. STATE

No. 14,708

Supreme Court of Mississippi

March 27, 1911

APPEAL from the circuit court of Yazoo county, HON. D. M. MILLER Judge.

Lee Wiltcher was convicted of murder and appeals.

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

Case affirmed.

Barbour & Henry, for appellant.

It was manifest error, and highly prejudicial to appellant to permit the witness, Bettie Price, to testify over objection that one month before the murder of deceased, that Mrs. Wiltcher told her that she was going to have her husband killed, and failing in this, she would kill him herself. The court will notice from the transcript that objection was repeatedly made to this testimony because it appeared from the witness' own statement that it was three weeks or a month before the murder. The only evidence connecting appellant with any conspiracy, and in fact the only reference to that effect was the testimony of Will Price, who said that the only times Lee Wiltcher ever offered to have his brother killed was on Saturday preceding the Saturday night of the murder (one week exactly) and on Friday, the day preceding the homicide, and of Tom Brokeman, that appellant talked to him on Wednesday before the killing, yet the court permitted this witness to detail conversations she had with Mrs. Wiltcher, weeks before there is any claim even, by the state, that appellant was her co-conspirator. The effect was to get to the jury conversations, showing Mrs. Wiltcher's purpose and desire and reason to have her husband killed, out of the hearing of appellant, and without his knowledge. The prosecuting attorney realizing the incompetence of the declaration stated to the court that he would show that the old lady was off on the dates," a promise he did not even offer to keep. The court, realizing that the evidence was improper, as the record then stood, said: "The court will consider the matter and rule later." Immediately, the record shows, the jury was brought back, and all this incompetent testimony given before them, the court finally being generous enough to give appellant the benefit of an exception. We can conceive of no testimony, in a case like this, that could be more damaging.

That this testimony was incompetent under all the authorities is too plain. "Acts and declarations done and made before the formation of the conspiracy are not admissible against the co-conspirator unless brought home to them, or made in their presence." Ency. of Evidence, vol. 3, p. 430; 34 N.W. 720; 9 So. 847; 34 Am. Rep. 746; 61 S.W. 735; 54 S.W 211; 94 Ill. 299; 12 N.E. 865.

In order to make evidence admissible on the theory that there was a conspiracy between the defendant and others jointly indicted, it is necessary that it should be shown that the conspiracy was pending at the time of the statement, if made out of the presence of the co-conspirator. Langford v State, 30 So. 503.

The identical question is decided, and held to be reversible error in the case of Gillum v. State, 62 Miss. 548.

During the examination of Rosa Moore, or Rosa Price, the court, over the objection of the defendant's attorneys, permitted her to testify as follows:

"Q. What did he say, if anything, about what he was going up there for? (meaning Will Price).

"A. He told me to go up there with him, that he wanted to borrow some money from Mr. John Wiltcher, and after we got nearly to the house, he said, 'I am going to kill Mr. Wilteher,' and I begged him not to and said, 'I would not do it,' and he said, 'If I don't kill him, cousin Rosa, Mr. Lee and Miss Lula are going to kill me to-night or early in the morning.' He goes on and I steps in the shop and sticks my fingers in my ears to keep from hearing it."

This conversation between the witness and Will Price, as shown by her testimony, occurred ten or fifteen minutes before the shooting.

As stated in the argument of the facts in this brief, this is the only corroboration, or the only effort at corroboration, of the witness Will Price to the effect that Lee Wiltcher was present on the night of the homicide. The damaging effect of this testimony is manifest. The average juror, strange to say, regards a statement, whether self serving or not, out of court, corroborative of the testimony of the witness upon the stand, as strong testimony. The court permitted this testimony on the theory that it was competent as the act or declaration of a co-conspirator, the alleged conspiracy having been shown by the testimony of Will Price. My view of this testimony is that it is not the declaration of a co-conspirator "in furtherance of and in execution of the unlawful design." Unless it was such declaration, it was clearly incompetent because made in the absence of the appellant, and in no way ratified or approved by him.

Our court, in this case of Gillum v. The State, 62 Miss. 547, uses the following language: "After a conspiracy has been established by evidence aliunde, the declaration and acts of each conspirator in the furtherance of the common design are admissible against all, but it is necessary that such acts and declarations 'be shown to have been made or done in the prosecution of the common purpose. They are admissible as parts of the res gestae, and declarations or admissions which are not themselves acts, and do not illustrate or interpret contemporaneous acts, do not partake of the nature of the res gestae, and are inadmissible against any others save those by whom they are made. 1 Philips on Evidence, 698. The threats and declarations of Thomas and. Harry Gillum, which were proved against the defendant, were none of them made while the parties were engaged in any attempt to kill or injure the deceased."

It could not seriously be considered that this consideration by Will Price of his reason for the assasination, in any way illustrated or interpreted any contemporaneous act connected with the execution of the conspiracy. Of course, if at the same time he was upon the scene and John Wiltcher was being called out of his house, he had made any statement, this, of course, would have been part of the res gestae of the crime contemporaneous with its execution, and illustrative of his act in killing the deceased. But for him to state fifteen minutes before anything is done in execution of the alleged unlawful design, in a confession, was no more competent than if he had confessed it two days before, because it did not illustrate or interpret any contemporaneous act in furtherance of any in execution of the unlawful design.

In the case of Metcalf v. Conner, 12 Am. Dec. 340, this very question is discussed, the court there saying:

"Any declarations by one of the party at the time of the committing the unlawful act, are no doubt not only evidence against himself, but as being a part of the res-gestae and tending to determine the quality of the act, are also evidence against the rest of the party, who are equally as responsible as if they had themselves done the act. But what one of the party may have been heard to say at any other time as to the share which others had in the transaction, or as to the object of the conspiracy, cannot be admitted as evidence to affect them, for it has been solemnly decided that a confession is evidence only against the person himself who makes the confession, and not against others."

In the case of the State v. Tice, 48 P. 367, the court admitted proof of what one of the alleged conspirators not on trial narrated to the witness concerning what the witness designated he "supposed was the history of this instrument" (it being the trial for the forging of a will). The court held that it was reversible error, and said, "It was a subsequent narration of the transaction, and could not be considered as a part of the res gestae or as declarations concurrent in time with the commission of the unlawful act. " Citing with approval the case of Metcalf v. Conner. The court held that this was error.

"On the separate trial of one charged with aiding another in a murder, the acts done by that other and conversations had with him in the absence of defendant are incompetent as evidence of the defendant's guilt." This was a trial upon the charge of murder where the appellant and his uncle were charged to have entered into a conspiracy to cause the death of a party. Certain statements of the co-conspirator not on trial in the absence of the defendant, and which were merely narrative of the purpose or intention of the co-conspirator relative to the death of the deceased, were admitted in evidence. The court discussed the question here involved and reversed this case because of the admission of this evidence, holding that it was not in furtherance of or in execution of the unlawful design at the time the incriminating statements were made, but were in the nature of confessions or narrations. Osmun v. Winters, 46 P. 780; Sheppard v. Yocum, 10 Ore. 417; see, also, State v. Fredericks, 85 Mo. 145; State v. Duncan, 64 Miss. 263.

Philips on Evidence, vol. 1, par. 205, lays down a rule as follows "Where several persons are proved to combine together for any illegal purpose, any act done by one of the party in pursuance of the original concerted plan and with reference to the common object is in contemplation of the law, the act of the whole party. It follows therefore that any writings or verbal expressions, being acts themselves or illustrating and explaining other acts, and so being part of the res gestae, and which are brought home to one conspirator, are evidence against the other conspirators, provided it sufficiently appears that they were used in furtherance of the common design." And the author afterwards, at page 208 of the same volume, adds: "But where words or writings...