67 Miss. 335 | Miss. | 1889
delivered the opinion of the court.
Appellant has been convicted of the murder of one Tillman and sentenced to capital punishment. We dispose of the errors assigned in their order.
The first assignment of error is upon the action of the court in refusing a change of venue, and upon this it is sufficient to say that no abuse of judicial discretion appears to have been committed. Upon the motion for the change of venue a number of witnesses were examined, the majority testifying that in their opinion a fair and impartial trial could not be secured in the county. But a
The witnesses summoned in defendant’s behalf seem to have promptly responded to the processes of the court, and, so far as we can discovei-, testified fully, freely and without any sort of hesitancy or reserve, in his favor. One witness for the state, having testified to a conversation he claimed to have overheard between the defendant and one of his co-defendants, in effect confessing his guilt, was promptly contradicted by the testimony of the only other man who he stated was present and within hearing. A great number of witnesses, apparently taken from the body of the community in which the homicide occurred, freely attacked the general credibility of the most important witnesses for the state. However honestly the witnesses on the preliminary motion for change of venue may have felt that the accused could not secure an impartial trial in the county of the offense, the trial as surveyed from its
The next assignment of error is upon certain remarks made by counsel aiding the district-attorney, in the course of his argument to the jury. One of the witnesses for the state stated in reply to a question from the defendant’s counsel, that some time after the arrest of appellant he (witness) told him (appellant) that Lamons (a defendant jointly indicted with appellant) was gone, and was not at home. It appears that when appellant was informed that suspicion rested upon Lamons, he replied that Lamons could not have committed the murder, for he had slept with appellant the night of the murder. After this, and when appellant was arrested, he stated that he had spent the night of the murder with his mistress (a Miss Lobinsón). In his argument the counsel for the state in speaking of these contradictory declarations by defendant as to where he had spent the night, said: “ The reason why defendant changed his tactics was because he had intellect enough to know that the flight of Lamons was a circumstance of guilt and evidence of it, and that neither Cheatham nor Lamons could explain it.” Instantly upon this remark being made to the jury, counsel for appellant objected to it because there was no evidence of the flight of Lamons and that such evidence if offered would be incompetent as against the appellant. Whereupon the court instructed the jury that it should disregard so much of the argument of counsel as had reference to the flight of Lamons, and counsel for the state also stated to the jury that he had inadvertently made the point, that he withdrew his remarks and would ask the jury to ignore them. It is now strenuously urged that for this inadvertence of counsel, instantly corrected by both court and counsel, the verdict must be set aside and a new trial awarded. It was impossible, says counsel, for the court or the state’s attorney to expunge from the mind of the jury the effect of the suggestion; that the jury could not forget the fact suggested, and would not ignore its existence in forming its verdict. The standard sought to be erected by counsel by which to test the “ fair and impartial trial,” to which one accused of crime is-
The next assignment of error is upon the action of the court in rejecting certain testimony offered by defendant. The principal evidence for the state connecting appellant with the murder of Tillman, was the testimony of two of his accomplices, Lee Irvin and Cornelius Robinson. By them his guilt- was thoroughly established, if their testimony was credited by the jury.
It appears that soon after the murder of Tillman suspicion became fixed upon Irvin and Robinson, and on Saturday or Sunday morning (the homicide having occurred on Thursday), they were arrested. On Sunday morning the body of Tillman was discovered in a stream where it had been sunk by the murderers by attaching large rocks to its head and feet. After the discovery of the body, violence was used against them to extort a confession against others, and assurances were given Irvin at least that he should be protected if he would divulge all he knew of the crime. On cross-examination of Irvin these facts were elicited, but it appears that neither he nor Robinson made any statements relative to the crime until after they had been removed to the jail at Oxford, Mississippi; the other defendants were in the meantime incarcerated in the jail of Grenada county. After Irvin and Robinson had testified, C. H. Perry was being examined as a witness, when the defendant’s counsel asked him “what, if any, inducements were
The course of inquiry proposed by counsel for accused Avas not for the purpose of establishing suspicious circumstances, the existence of which the state’s witnesses had denied. Irvin had detailed Avhat had transpired; had admitted the threats and force used against him, the promises of immunity that had been given on condition of his divulging all he knew of the killing. All of these things had proved unaATailing to procure any statement from him,
The next exception taken was to the action of the court in refusing the 23d instruction asked by the accused and by withdrawing another instruction, which the court had given, touching the duty of the jury to acquit if there was no corroboration of the testimony of the accomplices. The refused instructions pertain to the same subject and will be considered together.
By the 23d instruction the defendant asked the court to tell the jury that: “ The act of an accomplice in testifying for the state so as to criminate himself with others is .voluntary. He could not be compelled so to do. He testifies for the state under a promise of favor expressed or implied, on condition that he will make a full confession and statement in regard to the matter. His testimony comes in such questionable shape that it should in the interest of truth and justice be subjected to the severest scrutiny, and acted on with the greatest caution.” By another instruction, the court had been requested to advise the jury not to convict upon the uncorroborated evidence of accomplices. In acting on this instruction, the court struck out the word advise and inserted in lieu thereof the word instruct. After counsel for the defendant had concluded his argument, the state’s attorney moved the court to withdraw this instruction, which was done. Counsel for defendant then asked the court to give it with the word advise instead of the word instruct, which the court refused to do. By the 5th and 9th instructions given for defendant, the court had told the jury that it was its province to determine what weight should be given to the testimony
The suspicion with which the testimony of accomplices is received bjr the courts, and their unwillingness to sustain convictions resting wholly upon the uncorroborated evidence of such persons has led to the very general practice of advising juries to act with great prudence and suspicion upon such evidence, and to acquit unless there is corroboration in material particulars. But our researches have failed to discover a case in which a conviction has been set aside by reason of the court refusing so to instruct or to advise. In the case of State v. Jones, 64 Mo. 391, an instruction substantially that of the 23d here was refused by the court, and the supreme court in passing upon the case declared that the instruction “should have been given;” but the judgment was reversed on other grounds, and we do not know that in the absence of other error the refusal of this instruction would have been held reversible error.
In State v. Hany, 2 Dev. & Bat. 390, the supreme court of North Carolina declared what we understand to be the true rule upon the subject. The practice of giving such instructions or
The learned annotator of the case of Commonwealth v. Price, 71 Am. Dec. 668, adopts the declaration made in this case, that “long usage sanctioned by deliberate judicial approbation, has given to this ordinary caution a precision which makes it approach to a rule of kuv. It is questionable, however, if in any case its omission would be ground for a new trial,” and in its support cites many cases which will be found in the note to that case.
The remaining assignment of error is upon the giving of an instruction by which the court told the jury it might consider any
The instruction is not subject to the criticism that it is upon the weight of the evidence, for it does not tell the jury that such facts prove or tend to prove the issue in favor of the state. Nor does it announce any erroneous proposition of law. On the contrary, by admitting such evidence, the court declared its competency, and it is true that the jury may and should consider all the evidence in forming its verdict. While we do not think the instruction erroneous in the sense 'of entitling the accused to a new trial, it is much to be hoped that the courts will reject such charges when asked. Counsel representing the state may very properly argue before the jury the effect of such evidence. But the field of argument is so nearly invaded by such instructions that the court may with propriety decline to give them.
We find no error for which the judgment should be reversed, and it is,
Affirmed.