Woulard v. State

• Citation: 102 So. 781,137 Miss. 808
• Decision Date: 09 February 1925
• Docket Number: 24649
• Court: Mississippi Supreme Court
• Parties: WOULARD v. STATE. [*]

102 So. 781

137 Miss. 808

WOULARD v. STATE. ^[*]

No. 24649

Supreme Court of Mississippi

February 9, 1925

Division B

Suggestion of Error Overruled Feb. 23, 1925.

APPEAL from circuit court of Perry county, HON. R. S. HALL, Judge.

Arnold Woulard was convicted of murder and he appeals. Affirmed.

Affirmed.

A. T. L. Watkins, for appellant.

The court could not take advantage of the failure to have process issued for the witness, on account of its promise, its officers having promised that the absent witness, G. T Dennis, ex-sheriff, would be in court on the day of the trial. In fact the witness had already been in court as a witness in this cause. The fatal error is that the court stated that the testimony was wholly immaterial, that it was secondary evidence. It was part of the res gestae, an admission of a party to the combat, and according to the state's theory, a dying declaration. The sheriff talked with deceased after he went to the hospital; the doctor before; and evidently nearer the dying hour than the statements made to the doctor, the only witness called for by defendant. The reasons are set forth with motion for a continuance.

A man has a constitutional right to know who he is charged with killing. An examination of the testimony discloses that the evidence is for killing "Cidero Cruize" not "Isadore Crug" and we respectfully submit that an acquittal or conviction on one, will not bar a prosecution on the other. Whom has he killed and has he killed the person as charged in the indictment? Was the accidental shooting of Woulard's wife and baby by Cidero Cruize or Isadore Crug? Who made the dying declaration, Cidero Cruize or Isadore Crug? Was it ever proved that Isadore Crug, named in the indictment is dead? Is this court authorized to assume which it is or who is dead? Section 26 of our Constitution should not be made a joke. It was brought to the attention of the court in ample time to have investigated and ascertained the facts, but the court utterly ignored the matter and the defendant's rights in the premises. See McBeth v. State, 50 Miss. 81. If some one had shot his wife and baby, he had a right under section 12 of the Constitution to get a gun if he did not have one, or independently of the Constitution he had a right to protect his home and family, and it was not evidence of murder to get the gun or have the gun. There is not a word of testimony that indicates that deceased ever attempted to say it was an "accident" prior to the shooting and the physical facts show it was a deliberate shot. Not a shot hit anything except the woman and baby.

The state announced that it was its intention to establish a dying declaration, but no effort was ever made to do so. The rule for determining the admissibility of dying declarations is fully set forth in Bell v. State, 72 Miss. 507, and is reannounced and adopted in Sparks v. State, 74 So. 123. In this case there is not a pretense at qualifying the statements as such but just left them as a "guess" for the jury. In the Bell case, supra, it is settled that the admissibility of the evidence is for the court in the absence of the jury, it being the duty of the court to investigate the circumstances under which the declarations were made, citing Owens v. State, 59 Miss. 547, to the same effect, that is, to fully investigate by the rules of law as to the competency of such evidence, which is a preliminary inquiry to be made by the court, before the jury is permitted to hear it--a few of the authorities are, Williams Case, 81 So. 737; must be in the absence of all hope, 85 So. 166, 86 So. 619 and citations; must be a predicate, 89 So. 835, citing 77 So. 75; 52 So. 337; 48 So. 373; 67 So. 237; must be made in extremis, full knowledge of his danger, 99 So. 68; limited to acts which caused death, 6 So. 840; "under a fixed belief that death is impending" and certain to follow in a very short while, 98 So. 693; determined in the absence of the jury, 98 So. 693; must be admissible beyond a reasonable doubt, not based on conclusions, 96 So. 459; 89 So. 835; not of res gestae incompetent, 95 So. 569; 94 So. 851; court first made a preliminary examination, 93 So. 529 and citations; hearsay unless made under belief of impending death, 93 So. 57, par. 9; 93 So. 79; 92 So. 33, 627, 828; must be a preliminary examination, 91 So. 417; 89 So. 835; 77 So. 75; 52 So. 337; 48 So. 373; 67 So. 237; in the absence of all hope, 85 So. 166. A final statement before being hanged not a dying declaration, 79 So. 375; must die immediately, 79 So. 201, 322; no hope, 79 So. 699, 322; must be confined to res gestae, 79 So. 699, and others.

It is the settled law that a predicate must be laid, and the admissibility of the statement, whether or not it is a dying declaration, such as is competent evidence is strictly for the court, as a preliminary question in the absence of the jury, but the court will note that in this instance no preliminary examination was made either in or out of the presence of the jury, but the district attorney just took a shot at it, and let the jury make a guess. An examination will disclose that it does not come up to the requirements of law as a dying declaration, or any part of a dying declaration.

The court should have sustained the motion for a peremptory instruction. Danger need not be actual but reasonably apparent.

Every instruction granted to the state, except the fifth, directing the forms of verdict and the penalty following, is erroneous. The first, makes no mention of "proof beyond every reasonable doubt" and attempts to authorize the jury to convict, although whatever provocation defendant had, was only for a moment prior to the firing of the gun. The instruction is correct in a proper case, but not applicable to the facts in this case. The defendant either formed the intent to shoot when he went off after the gun or when the deceased followed him in his yard (and he says, making some movement, as if to shoot). If the latter, there was not a "moment" shown in which to reflect, because a man could not shoot without first forming an intention. Yet the evidence does not show any time for reflection; if following defendant into his yard was the provocation, it was continuing at the moment the gun fired, by all the testimony, and this is a clear case of giving an instruction not based on the evidence, which is always erroneous, under all circumstances.

Instruction two ignores every principle of law. It does not so much as inform the jury that it is for the state, the "reflection" is not described as an intent to kill, without sufficient provocation or unlawful killing or apparent danger, and is in direct conflict with every instruction granted to defendant and the jury could not know which to follow, even if they had deliberated. See recent case of Reddix v. State, 98 So. 850, 100 So. 577. Neither one nor two is based on any belief by the jury, but are peremptory, 94 So. 210. Both were erroneous in that there was no evidence of reflection or time for reflection, at the time of the shooting and both instructions make no reference to a reasonable doubt, but apparently at least, leave the burden on defendant to exonerate himself.

The substance of the latter clause of instruction three tells the jury, "that it is not enough that defendant believed himself in danger," unless the jury, viewing it as they do now, think him in danger. The state does not have to prove anything beyond all reasonable doubt, not even by a preponderance of the evidence. The jury is not required to believe anything, only that "he had grounds for such belief (not reasonable grounds, or apparent grounds). As recently stated by the supreme court of Mississippi, "a man may believe a thing and not believe it beyond a reasonable doubt," or from the evidence "or lack of evidence." Hall v. State, 91 So. 397. All instructions may say "believe beyond every reasonable doubt" in every criminal case.

Instruction four says, "if they believe from the evidence" not beyond a reasonable doubt, not from lack of evidence, to the "reasonable satisfaction of the jury that deceased was about to kill him, etc., or immediate danger (not apparent danger) and not to gratify a grudge;" if it means anything, it is for the jury to assume that the shot was to gratify a grudge.

Instruction six might have been correct if defendant had shot at Peter and killed Paul. Not one of the contingencies mentioned apply in this case. Defendant had not claimed an accidental shot, nor does the testimony show reckless handling of a dangerous weapon, nor that defendant was engaged in an act mala in se, or even mala prohibita, but if he shot illegally, it was without apparent danger or necessity and assumes that deceased did not intend to commit a felony and that defendant knew it.

Instructions one and two, refused to defendant, denies to accused his right to shoot to prevent a felony being committed on himself or a member of his family. The court will bear in mind that the state's entire case is builded on an "accidental shot" as an excuse for the shooting of defendant's family. We do not believe any sensible man would have stopped, under the circumstances, to ask whether the gun was loaded or not, but that he had a right to assume it was. It was, at least, apparently a deadly weapon, and deceased was following defendant in his own yard with the gun, loaded or unloaded, which is shown by the state's evidence.

Instruction four, refused to defendant, was drawn under section 1230, Code of 1906, Sub. "f" and "g" and should have been given. See Spivey case, 58 Miss. 858, unduly abridging the right of self-defense.

Instruction five, refused to defendant, is in the face of Lamar v State, 63 Miss. 265, and so with instruction six. ...