85 So. 188 | Miss. | 1920
delivered the opinion of the court.
This is an appeal from a conviction of murder. The killing occurred at the close of a concert at the Pine Grove School near Hattiesburg, Miss. The main room of the school building, in which the killing occurred, is twenty-six feet long with a stage in the rear. The major portion of the room is occupied by desks for the scholars separated with two aisles extending from the front to the rear. The'distance between these aisles is about three feet, that being the length of the"desks separating them. Oh. the occasion, in question, the appellant was the stage manager and remained on or back of the stage while the concert was being given. At the close of the performance, the deceased, Kramer Boles, was standing at the door of the room immediately in front of the stage and apparently between the two aisles When the appellant left the stage, he came down the right aisle, spoke in passing to his brother, who sat a few feet from the stage, then to his wife, who sat a few feet further therefrom, and then, according to the evidence for the state, suddenly drew a pistol and shot the deceased, who had made no demonstration of hostility toward hi ml, and who was then either standing at the door or had taken two or three steps therefrom toward or down .the left aisle, and who was armed only with a knife that was found in his pocket after his death. After he was shot, the deceased walked down the left aisle and fell a short distance from the stage. According to the evidence for the appellant, when he (the appellant) left the stage and started down the right aisle the deceased left the door and came down the left aisle, which would have brought him within three feet of the appellant, with his hand thrust into his shirt bosom, from which
The state offered no evidence tending to disclose any motive on the part of the appellant for the killing of Boles, and none other than self-defense appears from the record, unless from certain evidence offered by the appellant, which will he hereinafter referred to, but which was excluded by the court.
It appears from evidence introduced by the appellant that he and the deceased two years or more before the killing were both in love with Jessie May Owen, and that she had rejected the deceased and accepted the appellant; that about two months before Jessie May married the appellant the deceased stated that in event she married him he intended to kill the appellant; that the deceased seemed to brood over his rejection by Jessie May and her marriage to the appellant, and on several occasions thereafter stated to various persons that he intended to kill the appellant.
About six months before the killing, James Logan asked the deceased if he had not been talking about Mrs. Clark, and he replied:
‘ ‘ That was some more of Gene Clark’s God damn lies. I would have killed him the other evening if Ma and Jeff would have let me have the gun, and I will kill the God damn son of a bitch if he ever crosses my path again. ’ ’
A short time after this conversation with Logan, the deceased met Joe Brogan in the public road and, in the language of Brogan:
“I met him there. He had a gun on his shoulder, and I asked him to let me see it. He handed it to me, and then said, ‘Wait a minute,’ took the gun and broke it*154 and took the loads out. I said, ‘You must be looking for big game.’ ‘No,’ lie said ‘I bad them rung to kill Gene Clark with, if he had come a little closer while ago I would have killed him. The God damn son of a bitch! I will kill him yet.’ ”
On March 28th, prior to the killing which occurred on April 25th following, the deceased met Mike Clark in the city of Mobile, Ala., and on being informed by the deceased that he was going home Clark asked him to deliver a message to Eugene Clark, and he replied: “Damn Eugene Clark! He would shoot his brains out if he got a chance. ’ ’
The wife of the appellant testified, but her testimony, was excluded by the court, that on the morning of the 6th day of April, nineteen days before the killing, the deceased came to her residence a short while after her husband had left and forcibly ravished her; that after accomplishing his purpose he said to her that — “I could tell that son of a bitch of a husband if I wanted to that he had been there and raped me, and then he would kill him and have me all to himself.’ ’
All of which was communicated by her to her husband. Two or three days before the killing, the deceased stated to several persons in a cafe in the city of Hattiesburg that he intended to kill the appellant before Saturday night. On probably the same day of the making of the treat by the deceased in Scott’s Cafe he had a conversation with Eugene Boykin, who testified:
“I was on the corner of Mobile and West Pine streets when Boles came up. He said he had been working at the shipyards in Mobile and wanted to know if I had seen any one going home. I had not seen any one but Eugene Clark, I told him. He said: ‘Hell with Gene Clark! Is he by himself?’ I said, ‘I don’t know.’ He said, ‘If I knew he was, I would go out with him and cut his damp throat.’ I said, ‘That might be a two-handed game,’ and*155 he said, ‘What it takes to hold him I have it,’ and pulled back his shirt and showed a nickel-plated gun.
“Q. Gun or pistol 1 A. Pistol.”
The appellant offered, but was not permitted, to prove that the deceased exhibited a weapon in connection with the threats made by him against the appellant to Mike Clark and in Scott’s Cafe.
On probably the day before the killing, the deceased also had a conversation with Bogue Chambliss, who testified that—
“A. I had a knife, a long, dark-bladed knife, and Boles wanted to swap me out of it, and I swapped with him When we got in the wagon, he said, ‘I would not take fifty dollars for it. ’ I asked him what he wanted with it, and he told me Eugene Clark, a God damn son of a bitch. If I ever live to get my hands on him, I am going to cut him — God damn him — as long as there is a piece to out.
“Q. Was anything else said? A. I asked him wha,t it was about. He said, ‘Just what I told you before it was about.’ So I went on and tried to explain the thing to him.
“Q. Tell what you said to him and what he said to you. • A. I said that was all right when you were children, but you are men now, and someone will kill you or you will have to kill someone. He said: ‘The son of a bitch will never kill me if I ever get my hands. I said ‘The best thing you can do is to leave that alone.’ He said he be God damned if he would leave it alone.”
The last threat against the appellant was made by the deceased just a few moments prior to the killing and was proved by Dewey Hatton, who testified that—
“We were on the inside of the schoolhouse, and he said, ‘Let’s go smoke a cigarette.’ We went on the outside and were standing there by the window, and he said, ‘You see that son of a bitch behind that curtain.’ I said, ‘No, who is it? He said, ‘Eugene Clark; I am going to cut his God damned throat if I ever get the chance.’
*156 “Q. "What did lie have? A. Knife.
“Q. What kind of a knife? A. Bright looking knife about-seven inches long.”
T|he evidence that the deceased was armed with and exhibited a weapon at the time he stated to the witness Clark and in S'eott’s Cafe that he' intended to kill the appellant should not have been excluded, for it tended to show, not only that the deceased was earnest in making the treat, but that he possessed the means with which to put it into execution, thereby adding to the probability that he was armed at the time of the difficulty, which resulted in his being killed, and that he was the aggressor therein'.
The threat made to the appellant’s wife should also have been admitted, and the fact that it was apparently conditionál, in that it ivas to kill the appellant in event the witness told him that she had been raped by the deceased is immaterial. Such threats are not inadmissible merely because they are conditional (6 Enoy. of Evidence, 639'), and if the inadmissibility of the one here in question depends on the happening of the prescribed contingency, as to which we express no opinion, that condition was here met, for the witness told the appellant that the deceased had raped her.
The evidence of the rape itself should also have been admitted, for “the circumstances under which a threat was made are competent to explain its meaning" and significance.” 6 Ency. of Evidence, 795; Moorman v. State, 109 Miss. 848, 69 So. 1000. Moreover, it tended to show the nature, cause, and depth of the deceased’s enmity toward the appellant, which, if the evidence of the appellant’s witnesses is true, was caused by the fact, that Mrs. Clark had rejected him and married the appellant. 6 Ency. of Evidence, 796; Leverett v. State, 112 Miss. 4031, 73 So. 273. If this rape was not explanatory of its accompanying threat and had no bearing on the nature and cause of the deceased’s enmity to
The evidence as to who was the aggressor in the fatal encounter, on the solution of which the guilt or innocence of the appellant depends, being in irreconcilable conflict, the state of mind of each of the participants therein toward the other was a material inquiry, and any evidence pertaining thereto was relevant and, unless incompetent on some other ground, should have been admitted.
“The law furnishes no test of relevancy. Unless settled by statute or controlling precedent, relevancy is to be determined by logic, being the application of the principles of reason, judgment, and systematic arrangement to the matter in hand. All facts which tend either to sustain or to impeach a logically pertinent hypothesis are admissible. But no facts are relevant which do not afford a reasonable presumption or inference as to the principal fact in issue, or which do not make - more or less probable such a. hypothesis.” 1 Wharton’s Criminal Evidence, section 24; 11 Ency. of Evidence, 174.
Reversed and remanded.
