Flowers v. State

85 Miss. 591 | Miss. | 1904

Calhoon, J.,

delivered the opinion of the court.

Flowers was convicted of murder in what the record evidence shows to be a very close ease. The state rested on the testimony of a single witness, Lula Bass. The pith of her statement is that she was on her Avay to the house of one Rich Brown, whom she overtook, and with Avhom she walked on until the two came to where appellant and deceased were. They seemed to be “fussing,” and Brown told them to “quit that foolishness,” and told George Jones, the deceased, to come on with them; that deceased came on behind them to Brown’s house, but did not go in with them, but stopped at the gatepost, laid his gun, a breech-loader, on the gatepost “with his hands across it.” She then proceeded to say that “after a while Jean [the accused] came on down, and had his pistol half in his hand and half in his pocket,” and walked by the deceased, walked to where witness was, and then back to deceased, and then she heard deceased say, “If you lay down a quarter, I will pick it up,” when accused shot him, firing twice; and that after he was shot, and not before, the deceased tried to get his gun up as if to shoot, but could not. This testimony, if believed by the jury, would warrant conviction. The defense then introduced three witnesses, whose testimony, if believed by the jury, made out a clear case of self-defense, and rested. One of these witnesses — -Rich Brown — testified that deceased came on behind him (the appellant) at a distance of fifty yards, cursing the appellant, and, with his gun in his hand, came into his yard, and snapped his gun at Flowers, broke it down and put in another cartridge, and as he threw it up again, Flowers shot his pistol; that the appellant fired his pistol three times; and that the witness Lula Bass was placed where she could not have seen these acts. Only one shot struck deceased. Thereupon, when the defense rested, the state introduced, for the first time, one Charlie Bass, a witness stated to be in rebuttal of Rich Brown. Bass testified, over objection, that he saw the deceased an hour before he died, and deceased said he was going to die; that he made no attempt to shoot appellant; that appellant shot him for nothing, about an honest quarter that he (appellant) owed deceased, and deceased was not doing anything. On cross-examination Bass stated that he had told the district attorney about this testimony, without stating when he told him or where he told him. The state’s attorney here took the stand as a witness, and testified, over objection, that the witness Oharlie Bass had told him that he knew nothing of the case, and that he then asked Bass if he was with deceased when he died, and Bass said he was, and then the state’s attorney testified that Bass did not know that that was evidence. This evidence of dying declarations was in no sense in rebuttal. It was direct testimony, and of a nature which generally has very great effect on ordinary jurors; and this permitting of direct testimony in rebuttal is condemned as very bad practice in this state and everywhere, though we are not prepared to say that we would reverse for this alone. Direct testimony should not be permitted to be produced in rebuttal unless there is some statement that it came to the knowledge of the party after the conclusion of the testimony, and there is nothing here to show this. We think, however, that .it was clearly error to permit the state’s attorney to testify in order to bolster up his witness. This gave the defendant in this close case too heavy a burden to bear. It is true the court excluded this testimony of the state’s attorney, but it was too late; it had had its effect on the jury. The state then introduced Meredith Alexander, who testified that the deceased said that he was killed for nothing, for an honest quarter which appellant owed him. The state then introduced Rich Jones, who testified that he was present when George Jones died, and that “ ’long toward the last” George said he could not stand it, and the witness supposed from that he was going to die, but he did not say anything about his going to die! The defense then asked the court to instruct the jury that all the testimony in regard to the dying declarations was not to be considered as evidence, because the proper foundation was not laid and because it would improperly admit in rebuttal direct testimony; and the court sustained the motion only as to the testimony of Richard Jones, but overruled it as to the testimony of the other witnesses.

It will thus be seen, in sustaining the motion only as to the testimony of Richard Jones, who was the father of the deceased, and was with him when he died, and who had testified that he, did not know whether George knew he was going to die or not, the court in fact excluded only that part of the testimony which might be of advantage to the defendant; and this was error.

Here the state rested, and the defense introduced John Lynch as a witness, who testified that while deceased was lying on the ground where he was shot, Rich Brown’s wife, mother of the deceased, told the deceased he had brought all this trouble on himself; that she had tried to get him to go home, and he would not go; and told him that, if he had listened to her, he would not have been in this trouble; and he said: “Yes, if my gun had fired, I would have killed him.” Here, on motion by the state, the court excluded all that this witness said except the answer that was made by the deceased, that, “If my gun had fired, I would have killed him.” We think'this was error. The court should have excluded all or none of it. The whole colloquy should have been admitted or none of it. It was necessary to show the relevancy of his statement about the gun. If j)art of the res gestae, all Avas admissible.

The defense then introduced Norah Brown, Avho Avas brought on in surrebuttal of the statements made by the dying man to Charlie Bass, and, the jury being retired, it was proposed to shoAv by Norah that she saw the dead man before he Avas shot, and that he Avas cursing and quarreling inside of the yard at the post, when right liere the state objected to the' testimony, and the defense told tile court that it expected to prove by this witness, in rebuttal of the dying declarations, that the deceased was the aggressor in the difficulty, and that he raised his gun to shoot the defendant before the defendant ever fired. The court sustained the objection, but permitted the defendant to show by this witness anything in rebuttal of what the state had offered in rebuttal only. This Avas error. The court had permitted the testimony as to the dying declarations' as in rebuttal, when it was clearly direct testimony, and, having done this, it was unjust to the prisoner to hold him down to 'the strict rules of practice. If the dying declarations had been offered originally, the defense would not, perhaps, have offered this last witness.

Reversed and remanded.