Yarbrough v. State

• Decision Date: 01 May 1933
• Docket Number: 30500
• Citation: 165 Miss. 847,147 So. 780
• Court: Mississippi Supreme Court
• Parties: YARBROUGH v. STATE

147 So. 780

165 Miss. 847

YARBROUGH v. STATE

No. 30500

Supreme Court of Mississippi

May 1, 1933

Division A

1 HOMICIDE.

Conflicting evidence made jury case in murder prosecution.

2. HOMICIDE. In murder prosecution, dying declaration of deceased held admissible as against objection that it was not shown to have been made under sense of impending death.

At time of making statement, deceased stated that he was going to die and could not get well, and that he heard doctor say he could not get well, and that "my hands are getting cold now."

3. CRIMINAL LAW.

Argument that numerous instructions would be presented by defense counsel to befuddle jury, though not reversible error, should not be permitted in criminal case.

HON WM. A. ALCORN, Judge.

APPEAL from circuit court of Coahoma county HON. WM. A. ALCORN Judge.

Mose Yarbrough was convicted of murder, and he appeals. Affirmed.

Affirmed.

Shands, Elmore & Causey, of Cleveland, for appellant.

If all of the testimony in the case whether introduced by the State or by the defendant, leaves the question of the defendant's guilt in reasonable doubt, a judgment of conviction cannot be upheld.

Houston v. State, 117 Miss. 311, 78 So. 182.

The rule in Mississippi is that, before a dying declaration may be heard by the jury, the State must prove, beyond a reasonable doubt, that the deceased believed in his immediate and impending dissolution. He must believe that death is then upon him. The proof must show that the deceased has lost all hope of life. In other words, the declaration must come from a man who then believes that he is dying.

Lea v. State, 138 Miss. 761-770, 103 So. 368; Smith v. State, 161 Miss. 430, 137 So. 96; McNeal v. State, 115 Miss. 678-692, 76 So. 625; Washington v. State, 140 So. 532.

It was at least left in doubt whether the statement of the deceased that he would die from his wounds expressed and clearly proved a hopeless and fixed condition of mind, or but showed a momentary despondency.

Bell v. State, 72 Miss. 507, 513.

There was a failure to show that there was in the mind of the deceased, at the time of his making the statement a present belief of his immediate and certain death.

Counsel can never be permitted to argue to the jury against the instructions of the court nor indulge in any line of argument or comment that would tend to induce them to disregard the instructions given for their government.

2 R. C. L., page 421, par. 20; Baltimore & Ohio R. R. Co. v. Boyd, 10 A. 315-318; Hitchins v. Mayor, 11 A. 826; Neff v. City of Cameron, 111 S.W. 1139, 1145.

The action of the court in reference to argument of the county attorney did not eradicate the error.

Brotherhood, etc., v. Trimm, 93 So. 533.

Gentlemen of the jury, take this rigmarole of instructions when you go out. This argument amounted to a disparagement of the instruction.

Winchester v. State, 163 Miss. 462, 142 So. 454.

A judge cannot be too careful and guarded in language and conduct in the presence of the jury, to avoid prejudice to either party.

Nelson v. State, 129 Miss. 288, 303, 92 So. 66.

Herbert Nunnery, Assistant Attorney-General, for the state.

Where there is a conflict of testimony this court will not disturb the verdict of the jury of the lower court.

Stewart v. State, 154 Miss. 858, 123 So. 891; Matthews v. State, 148 Miss. 696, 114 So. 816; Chandler v. State, 143 Miss. 312, 108 So. 273; Spike v. State, 120 Miss. 752, 83 So. 84; Wells v. State, 112 Miss. 71, 72 So. 859; Jackson v. State, 105 Miss. 782, 63 So. 269; Brown v. State, 103 Miss. 639, 60 So. 726.

The proof in this case was such as authorized the trial judge to believe beyond a reasonable doubt that the dying declaration was admissible.

McLeod v. State, 92 So. 828; Early v. State, 91 So. 417.

A reasonable and sensible analysis of the argument of the county attorney simply means that there were a number of instructions before the jury, all having practically the same meaning, but stated in a different way and after properly analyzed they all ultimately mean practically the same thing, which is true in most criminal instructions where a number are given.

The prosecuting counsel was only giving his interpretation of the instructions and the defense counsel had like opportunity in his argument to the jury to give his version of the interpretation and regardless of what interpretation the prosecuting or defense counsel places upon the instructions, the jury is presumed to have read the instructions before returning a verdict.

OPINION

McGowen, J.

The appellant, Yarbrough, was tried and convicted of the murder of Willie Brooks, and was sentenced to the penitentiary for life.

A statement of the facts of this case would not be profitable. Suffice it to say that the evidence offered on behalf of the state, if believed, made out a case of murder. The evidence offered for the defendant, if believed, established self-defense. The defendant offered a dozen witnesses who contradicted Lizzie Dodson, a witness for the state, in that she had made frequent statements that Willie Brooks, the dead man, was to blame and had fired the first shot at the appellant, Yarbrough. There were other contradictions of witnesses in the record, all of which made it a case of conflict on the facts and a question properly and only for the jury. So there is no merit in the contention that this court should reverse the case because the evidence overwhelmingly preponderates in favor of the appellant.

It is urged that this case should be reversed because the court admitted the dying declaration of Willie Brooks, the decedent.

The court heard the evidence out of the presence of the jury. The deputy sheriff and his brother visited the deceased as he lay upon a cot in an outhouse, and the deceased said to them: "I am going to die . . . I can't get well . . . I heard the doctor when he told Mr. Culp that I couldn't get well, my hands are getting cold now . . . the medicine, the shot he give me is dying away, and I am beginning to hurt."

These witnesses, the deputy sheriff and his brother, said that prior to this statement Brooks had been singing, and at...