Cain v. State

100 So. 578 | Miss. | 1924

Ethbidge, J.,

delivered the opinion of the court.

The appellant, Cain, was indicted for the murder of Lee Holly, and was convicted of manslaughter and sentenced to the penitentiary for a term of seventeen years.

The deceased,-Lee Holly, and Mrs. Cain were formerly husband and wife, and by said marriage had three children, one daughter, who was married at the time of the killing, and two small sons. A few years before the killing Mrs. Cain, then Mrs. Holly, procured a divorce from Holly, the deceased, and some six months afterward married the appellant, Cain, and they lived together as husband and wife until a short time before the killing.

Mrs. Cain went to visit her daughter, Mrs. Brooks Stinson, who was working at a mill in Lowndes county, Miss., where Lee Holly also lived, and where he operated a commissary. During the visit at her daughter’s house Mrs. Cain decided to quit Mr. Cain and come and live with her daughter, and she and one of her srqall sons went back to the Cain home and procured her effects and moved them to Brooks Stinson’s house. Stinson for some reason objected to Mrs. Cain moving back under the circumstances because she was the wife of Cain. Mr. Holly caused a house to be built near the commissary where he was working, and Mrs. Cain moved into the house so built and occupied it with one of her small sons, while Holly and another of her sons occupied the rear of the commissary as a room. But Holly and the two hoys and Mrs. Cain all ate in the new house so built by Mr. Holly; she doing the cooking for all of them and Holly furnishing the food. On the Saturday before the killing Holly took Mrs. Cain to Aberdeen for the purpose of her filing a bill against the appellant, Cain, for a divorce, and Holly paid the cash payment required on the fee by giving his personal check therefor. On the following day Holly took Mrs. Cain to a public gathering of some kind near the line between Lowndes and Monroe counties, and it seems that Cain was also at this gathering and tried to have a conversation with Mrs. Cain, his wife, who declined to talk with him. On the following day, Monday, Cain and a brother of his came down to near where the mill was in a car belonging to Cain’s brother, where the brother stopped with the car, and Cain went on to the mill, and stood around the mill for some time, had a conversation with Brooks Stinson, his wife’s son-in-law, and after a time went to the house occupied by Mrs. Cain, and went in the house. When he went into the house, he found Mrs. Cain and one of her small sons and Mr. Holly in the room. Mr. Holly was sitting on a trunk, and Mrs. Cain was lying on the bed, being sick. According to the boy who was present Cain came into the house and looked first at Mr. Holly and then at Mrs. Cain, and back at Holly, and then pulled his pistol, shooting Holly, the ball striking Holly’s cheek in front, and penetrating the flesh, and coming out of the rear of his ear. Holly jumped up and grappled with Cain, and they scuffled out of the house fighting together and fell over a small wagon belonging to the small boy; Cain being underneath and Holly on top of him, when Brooks Stinson came up and disarmed Cain by taking the pistol away from him. Both men arose, and Holly ran back in the house and closed the door, and Cain followed, pushed the door open, and entered into a struggle with Holly. By some means they were separated, and Holly was carried to a house near by. Cain then procured an ax, and was pursuing Mrs. Cain with the ax. She called to Stinson for protection, and he got between Cain and Mrs. Cain. It appears that the noise made caused Holly to think that Cain was attacking the children, and, he came out of the house where he was concealed, and Cain took after him with the ax. Holly retreated. In the meantime Stinson had gone to get a car for the purpose of carrying Holly to a hospital, and as Cain came up with Holly near where Stinson was with the automobile, according to some of the witnesses, Holly picked up a piece of a baseball bat, and held it in his hand. According to other witnesses he was standing begging Cain not to kill him; that he had done nothing to him. Gain approached and struck Holly with the back of the ax, crushing his skull, and struck twice at him with the blade of the ax, but did not inflict fatal wounds with the blade of the ax. Stinson testified that he then asked Cain to let him take Holly to a hospital in the automobile. At first Cain would not do so, using vile epithets with reference to Holly, but finally let Stinson place him in the automobile and take him to a hospital, where Holly shortly afterwards died.

During the trouble some one had gone to Ottley, who owned the mill, and he and another man came down in a car armed with a gun and arrested Cain and carried him to jail. They said that Cain stated to them that he came down there to kill or get killed. Cain testified that he did not know that Holly was in the house, and that he went in to see Mrs. Cain, and that when he came in that Holly made a movement as if to draw a weapon, and that he, Cain, shot Holly in self-defense, believing he was going to draw a weapon; that Holly rose and grappled with him, and they went out of the house struggling together and fell, and while he was down with Holly on top of him that some one disarmed him; that he did not know what happened until just before striking Holly with the ax, when he saw Holly with a piece of the baseball bat, and he struck Holly with the ax in self-defense.

Mrs. Cain was introduced, and testified in behalf of Cain, her husband, and contradicted her sons as to how the killing occurred, and contradicted them as to Cain attacking her and pursuing her with an ax. In examining Cain the attorneys asked him:

“Q. Did you know his reputation for peace and violence (referring to Lee Holly, the deceased) ? A. Yes, sir.

“Q. Did you know whether he was considered a dangerous man or not?

“The state objects to the form of the question.

“The court: Yes.

“The appellant’s attorney asked what he thought of him as an adversary.

“State’s Attorney: We object to what he thinks of him personally. You can impeach a man’s reputation in the usual way, but his personal opinion of him makes no difference.

“Appellant’s Attorney: It makes a difference when you have a difficulty with a man:

“State’s Attorney: I say not.

“The Court: The objection is sustained.”

The refusal of the court to permit Cain to state what he thought of Holly as an adversary constitutes the first assignment of error. The personal opinion of Cain as to whether Holly was a dangerous man or not is not relevant. If he was a dangerous man that must be established by his general reputation in the community in which he lived.

The defendant sought to prove by the witness Irwin a conversation with Holly with reference to Cain. In answer to the question: “Tell the jury what that conversation was,” the witness said:

“It was after he had done taken his wife — taken his wife away from him over to Lowndes county.

“Q. How long was it before the killing? A. It was Friday before the killing Monday. I told Mr. Holly- — I asked him — I said, ‘Lee, what are you hanging around here for? You have done taken Cain’s wife away from him, and it looks like you might tempt the man, and he is liable to hurt you and get you into trouble, ’ and T said, ‘It looks like it is best for you to stay away from here.’

“District Attorney: We object to that; it is a piece of advice from this gentleman to Lee Holly.

“Appellant’s Attorney: Go ahead, Mr. Irwin.

“Witness: A. And he told me, ‘I haven’t had anything to do with Cain’s wife’; and I said, ‘No, Lee, you can’t put that kind of stuff in me and make me believe it; you would not be hanging around here if you wasn’t after something’; and he acknowledged to me that he was going to take Cain’s wife, and she was going to sue for a divorce, and he was going to marry her — take her back. He said Cain was a damned cur; ‘he will not hurt me; he will not do a thing; I ain’t afraid of him.’

‘ ‘ The District Attorney: I move to exclude the whole statement, for the reason that it is simply a piece of advice on the part of Eube Irwin, on the assumption that Lee Holly had taken Mr. Cain’s wife away from him.

“The court: Yes, it will be excluded; I could not tell what he was going to say.

“Appellant’s Counsel: Your honor, please, you don’t want to be heard on that at all?

“The court: No, sir. Gentlemen of the jury, you will not consider that testimony; that is excluded.”

Exception.

We do not think the statement was admissible. It appears simply to be an effort to inject into the case the so-called unwritten law. When Mrs. Cain was on the stand she was asked in reference to a conversation with Mr. Ottley and Mr. Blewett at the bars near Ottley’s place, and she denied making the statement, and denied that Blewett was there at the time, but remembered the time and place and Ottley’s presence. She was asked if she did not state in that conversation that Cain chased her with an ax at the time of the killing, and if she did not say in this conversation that she did not want Cain to get out for fear lie would kill her, or something to that effect, which conversation she "denied. Ottley testified, over objection, that she did state that Cain ran after her with the ax, and she asked him not to kill her, and that she did not want Cain to get out because he would kill her. The objection is made because the predicate was laid for a conversation with Ottley and Blewett when the statement testified to by Ottley was made when Blewett was not present.- The witness remembered the time and place and the conversation with Ottley, but denied the specific statement to Ottley which Ottley testified that she made. She said that Blewett was not there, and she did not see Blewett. The object in stating the time, place, and persons present in such eases is to give the witness full opportunity to recall the conversation, if any, and the circumstances and be able to make any explanation of the conversation that may have occurred. The mere fact that Blewett was named as one of the persons present in the predicate when he is shown not to have been present in the proof is not error in this case for the reason that the witness sought to be impeached remembered the conversation and the time and place and who was present.

The state asked and obtained instruction No. 6, which was also assigned for error, and which is as follows:

“The court charges the jury, for the state, that in trying this case you should not hunt for doubts, with the view of finding any excuse or apology for your verdict, nor should you indulge in such doubts as are merely conjectural or chimerical; but the doubts which ought to make you pause and hesitate must be reasonable doubts, and they must arise out of the evidence, or for want of evidence, in this cause. You are not required by the laws of this state to know 'the defendant is guilty of the crime charged against 'him before you can convict him, and you should not hesitate to find that he is guilty before you are able to say, outside of the evidence, that he might have been innocent, but, after carefully considering all the evidence in the case, if you believe beyond every reasonable doube that he is guilty, you should discharge your duty fearlessly under your oath and under the law, and may say so by your verdict.”

The giving of this instruction, while not commended, is not reversible error. Harris v. State (Miss.), 99 So. 754; Jones v. State, 130 Miss. 703, 94 So. 851.

A number of other instructions given for the state are assigned for error, and we have examined the instructions and the brief with reference thereto, and do not think that any error was committed.

The defendant complains that instruction No. 23 for the defendant was refused by the court. This instruction is what is known as the two reasonable theories instruction. The defendant procured quite a number of instructions, and had every principle of law applicable to the case presented to the jury.

This is a case arising on the testimony of eyewitnesses, and presents to the jury the question of the veracity of witnesses, and is in no sense dependent on drawing inferences from admitted or proven facts where the two reasonable theories might or might not be entertained as to such inferences. Where the law is fully and clearly given, the court will not reverse for the refusal to give other instructions,

We find no reversible error in the record, and the judgment will be affirmed.

Affirmed.