40 So. 737
Miss.
1906

Lead Opinion

Ca-liioon, J.,

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 *172had. been the aggressor) is always admissible in evidence) where anything that can fairly be construed as an overt act towards the immediate commission of a dangerous assault can be shown to have been done by the person slain, and that if there by even a doubt as to whether such act was done, evidence such as was here offered should be received.” See, also, Holly’s Case, 55 Miss., 424; Kendrick’s Case, 55 Miss., 436; Spivy’s Case, 58 Miss., 862; Newcomb’s Case, 37 Miss., 400; Johnson’s Case, 66 Miss., 189 (s.c., 5 South. Rep., 95). This is settled‘law in this state, and we do not understand how the trial court could have erred in following the plain statement made in the opinion upon the former trial. We would reverse the case upon this ground alone, even if it were the sole error in the record. Courts should not attempt to whittle away the rights of defendants upon trial for their lives. Every ruling should resolve any doubt in favor of the accused.

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 *173of the negro women about whom and at whose house the previous difficulty between the deceased and appellant was alleged to have occurred only a short time before the killing. This testimony, showing their presence at the negro dance hall where the killing occurred, taken in connection with the previous difficulty occurring at their house, should have been submitted to the consideration of the jury.

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

Wi-iiteie-LD, C. J.,

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 *174the same common canse, their relations to the two women named in the record, and whether as the result of these relations the deceased had been the aggressor 'in this series of difficulties; the three named, abusing, assaulting, and always first attacking the appellant. That, shortly stated, is the kernel of this case, which is here for the third time.

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*175deuce) puts the matter clearly and philosophically. He says: “Where an emotion of hostility at a siDecific time is to be shown, the existence in the same person of the same emotion at another time is, in general, plainly admissible. What the limit of time should be must depend largely on the circumstances of each case, and ought always to be left to the discretion of the trial court.” In 1871, Locilrane., O. J., in Pound v. State, 43 Ga., 88, 132, said: “No general rale can be distinctly traced over this disputed ground of judicial controversy. All we may assert, within the principle recognized, is that there must be some link of association, something which clraAvs together the proceedings and subsequent acts, something Avhich presents cause and effect in the transaction. As if A, jealous of his Avife, finds B Avith her, and forbids him speaking to her, and aftemvards meets B and her together, though Aveeks and even months had elapsed, the preAdous difficulty, though slight, Avould be proper eAÚdence to go to the jury in case of homicide. But if A aftemvards met B and upon a neAV cause of quarrel distinctly separate from the first, the difficulty sprang up, the acts relative to the first ought to be excluded as not throAving light upon the homicide and the fact of unfriendly feeling existing is all Avhich Avould be permitted.” In note 5 are cited tAvo cases to Avhich Ave direct special attention: Daniel v. State, 103 Ga., 202 (29 S. E. Rep., 767), and the State v. Westfall, 49 Iowa, 328.

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 *176the parties to establish mala animo; but you canuot go back to a remote period, and prove a particular quarrel or grudge, unless it be followed up with proof of a continued difference following from that source.” Again, the following quotation from the case of Coxwell v. State, 66 Ga., 312, is also approved: “Evidence of previous quarrels has always been held admissible, unless they were separate and independent acts; but wherever they were continuous from the inception to the termination of the homicide, and unite the preceding with the subsequent acts, thereby shedding light upon motive and explaining conduct, they are admissible.” We have made these two quotations from Daniel's Case in 103 Ga. and 29 S. E. Rep., and the quotation from Wigmore on Evidence, for the purpose of approving them as by far the clearest exposition of the true principle governing the admission of evidence of former difficulties we have anywhere found. The general rule, of course, is that evidence of a former difficulty is inadmissible; but the exception is quite as well established, the exception being the one set out in the quotations we have given.

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 *177cannot be given, without showing the others, any or all of them may usually be shown, at least where the offense for which he is being tried is, itself, a detail of the whole criminal scheme.” And as to admitting the details of such other crime Mr. Elliott, concluding the section, says: “But the particulars of a collateral crime should not, ordinarily, be gone into further than they are relevant to the purpose for which the evidence is competent.” So, here, the details of these three previous difficulties should be gone into only so far as they may show a common motive, •controlling deceased in all of them, resulting, if the facts should •so show, in his being the aggressor throughout.