Foster v. State

45 So. 859 | Miss. | 1908

Whiteibld, C. J.,

delivered the opinion of the court.'

The statement by Scott Wilkins on the day after the killing to those following a certain track that the track was “son’s track” — that is, Scott Poster’s track — ought not to have been admitted in evidence. It must have been admitted on the idea that it tended in some way to show a conspiracy between Scott Wilkins and Scott Poster. What was said in Browning’s case, 30 Miss., 656, is peculiarly applicable here. The court said: “The offense charged, if committed at all, was unseen by all save the parties engaged in its perpetration. The whole transaction was shrouded in secrecy. The very fact of the homicide, as well as the question who were the perpetrators of the deed, depended entirely upon indirect or circumstantial evidence. The charge, as laid in the indictment, presupposes the co-operation of at least two persons in the commission of the offense. It may hence well be conceded that peculiar and urgent circumstances existed in the cause, which authorized the application of the exception to the rule above stated, if any combination of circumstances could authorize a departure from the prescribed mode. But it should ever be borne in mind that no man can be asserted to be legally guilty of an offense unless his guilt shall have been established according to the forms and principles of law; and that in no case should a disregard of either the law itself or its established forms be tolerated, from any considerations of difficulty in the conviction of offenders, or from the supposed manifest guilt of the accused.” This was said with reference to evidence like that now being discussed, to ydt, acts and declarations of an alleged conspirator after the consummation of the conspiracy. The damaging character of this testimony is perfectly manifest. The searchers for the guilty parties were at the time following a track which they supposed to be the track of Scott .Foster, which track they did follow for a distance of some three miles, but with a break at one place in the road of at least half a mile. Whilst they were so engaged pursuing this track, Scott Wilkins rides up to them and states that the track was “son’s track” — that is, Scott Foster’s track. He also, according to the testimony, manifested a good deal of uneasiness at the pursuit of this track; the state’s theory being that he wished to divert the parties from any further following the track. This track was then approaching Scott Wilkins’ house when he made this remark.

It must be remembered that there had been a severance, and Scott Foster alone was on trial. Evidently Scott Wilkins was trying to divert suspicion from himself. He did not desire the track should be followed because it went to his house. It would be perfectly competent evidence against Scott Wilkins himself; but the question here is whether this testimony should be admitted when Scott Foster was on trial. It is true that the testimony of the woman Cassie Pride and of Laura Kelly and Sidney Fowler, very strongly and heavily weighs against the defendant; but that does not relieve us from the necessity of meeting this clearly incompetent testimony and of saying whether without it there might not have been a different result. If this testimony were of light value, were inconsequential in its nature, we would not hesitate; but' it is of the most fatal and damaging character possible to be imagined. The learned attorney-general does all that it is possible to do to save the case. He insists that the testimony tends to prove the conspiracy between Scott Foster and Scott Wilkins, and, if in that he be mistaken, then he insists that the testimony would be harmless, if no conspiracy was shown, so far as Scott Foster was concerned. It might, he says, harm Scott Wilkins, as showing his connection, independently of any connection which Scott Foster might have with the crime, but would not militate against Foster. We hardly think this is tenable. It is doubtless true that acts of the parties, although after the consummation of the crime, done for the purpose of escaping detection, are admissible; but that would apply to Scott Wilkins alone, not to Scott Foster, in this case, unless the conspiracy had been shown. But all these observations apply alone to that part of the testimony showing that Scott Wilkins was endeavoring in an agitated manner to divert the pursuers from longer following the track. It still leaves the most damaging and fatal part of the testimony, that of “son’s track,” to be disposed of. Thi's certainly was error, and it is impossible for us to say that without this testimony there might not have been a different result.

Reversed, and remanded.