40 So. 737 | Miss. | 1906
Lead Opinion
delivered the opinion of the court.
We said, when this case was before us on a former appeal (85 Miss., 511; 37 South. Rep., 957), and we repeat again: “The record in this case makes it perfectly plain that the justice of the case required, after the state had been permitted to prove that such difficulty had occurred, that the defendant should be allowed to show the details of the difficulty in order to demonstrate who was the aggressor in the difficulty resulting in the killing.” It is true that on the trial, the proceedings of which are presented in the present record, the state did not itself prove that the previous difficulty had occurred; but the defendant cannot by such tactics bo deprived of his legal rights. The testimony as to the previous recent difficulty between the appellant and the deceased was not made competent alone by the fact that the state had shown affirmatively the fact of the difficulty, but by reason of that principle of law, well settled in this state, that .wherever there is doubt, confusion, dispute or conflict as to the origin of the difficulty, or as to who was the aggressorin the difficulty which resulted in the death, and when such fact is the pivotal one in the case, testimony of uncommunicated threats, and the nature and character of previous difficulties, wantonly provoked by the deceased, is always admissible, provided the testimony shows some overt act on the part of the deceased at the time of the fatal encounter. As said by this court in the Guice case, 60 Miss., 723: “It is settled law in this state that proof such as was here offered (i. e., of previous difficulties between appellant and deceased in which deceased
But this is by no means the only error in the present record. It was error in the court to attempt to control the counsel for appellant in the order in which he should introduce his testimony. Nor was it fair to the appellant that, upon the cross-examination of the most important witness for the state, counsel for the defendant should have been called upon to disclose in advance the purpose for which he desired to prove the whereabouts of the two negro women — Selina Harvey and Bertha Sing — just before the homicide. The right of cross-examination is not to be limited by the trial judge. Nor can it be conditioned upon counsel advising the court, opposing counsel and the adverse witness, in advance, his intention or the end sought to be arrived at by the cross-examination. It is common knowledge among practitioners, that the truth can often be wrung from the lips of a corrupt or unfriendly witness only by concealing the real object of the interrogatory.
It was error for the court to refuse to permit the defendant’s counsel to prove the whereabouts at the time of the homicide
So, also, it was error in the trial court to restrict the defendant in proving, or to abridge his right to prove, the conditions of turbulence, violence and rioting -in the town where the killing occurred immediately after the homicide. If admissible for no other purpose, it was clearly so at least to show the reason wffiich might reasonably have induced the defendant to have sought safety in flight. Of course the conduct of the mob upon the night of the homicide, so far as relates to their acts towards others, was not in all its details admissible; but it was clearly competent for the defendant to show the intense excitement existing at the time, and from this it might well be that the jury would reasonably have attributed his flight to a cause other than Lis guilt. It is the duty of this court to see that no man shall suffer the extreme penalty of the law.unless the record plainly shows that he has had a perfectly fair and impartial trial and been convicted according to due form of law; and this duty we shall unshrinkingly discharge.
Reversed and remanded.
Concurrence Opinion
delivered the following specially concurring opinion:
I concur upon the single ground that the previous difficulties between the appellant and the deceased ought to have been under the peculiar circumstances of this case admitted in evidence. The whole gist of this case is whether, as contended by the appellant, all three of the difficulties within the space of two weeks between appellant and deceased, were occasioned by
We have said before that the justice of this case requires that these difficulties ought to be admitted in evidence. The reason given by the law books is this: “That where there have been several difficulties between the same parties, growing out of a cause common to them all, so that all the difficulties logically form one connected and continuous line of hostile conduct on the part of the deceased towards the slayer, such hostility being manifested in every difficulty by the deceased’s having been the aggressor in all such cases, the previous difficulties should be admitted, and their details should be admitted, so far as such details are necessary to explain the motive of the deceased, manifested by such continuous line of hostility on the part of the deceased towards the appellant, resulting in the series of difficulties due to the same cause and the fact that in all he was the aggressor, provided, always, that the evidence shall show some overt act on the part of the deceased at the time of the. billing against the appellant. The thought is — the philosophy of the thing is — that in all cases of that character, each difficulty resulting from the same cause has been inspired by the same motive, shows the deceased to be always the aggressor, and thus presents a continuous system or series' of difficulties practically amounting to a continuous assailing of the appellant by the deceased whenever they meet, due to the same motive throughout. This is the principle of the Guice case, 60 Miss., 723, to which especial attention is directed. In 1 Wigmore on Evidence, sec. 396, and the authorities grouped in note 5, the principle is fully explained. This work (in the judgment of the writer the ablest that has ever appeared on the subject of evi
We Avish to give our emphatic approval to the discriminating and painstaking methods of Prof. Wigmore in making his citations of cases. In' the notes he does not merely cite a long list of cases, but he gives a succinct statement of the holding in each case, as was the custom of that other great laAV writer, Prof. Pomeroy. This sort of laAV-book making helps beyond all expression the courts in their labors. In Daniel’s case, supra, the following quotation from the case of Monroe v. State, 5 Ga., 85, is approved: “Bepeated quarrels may be shoAvn betAveen
One other point should be carefully noted. It is often said that evidence of a previous difficulty may be admissible in proper cases, but that no details of such difficulty can be given. This is not an exact statement of the law. Such details should be entered into, but only so far as such details are essential to show the motive, the common motive, the common purpose, running through all the previous difficulties. The same principle applies here as applies to the introduction in evidence of other crimes than the one with which the defendant stands charged in the particular indictment. The general rule there is that no evidence of a distinct and independent crime is ever admissible. But if several crimes are so blended or connected that they form, as said by Mr. Elliott, in vol. 4, sec. 2720, of his work on evidence, “an indivisible criminal transaction, and a complete account of the transaction for which the accused is being tried