Gillum v. State

62 Miss. 547 | Miss. | 1885

Cooper, J.,

delivered the opinion of the court.

The court properly overruled the motion to quash the return to the writ of venire facias, and properly refused the motion for an alias writ for those of the jurors who had not been summoned. It is not necessary that the persons named in a special venire facias shall be summoned by an officer holding the writ in his hands, nor that the deputies shall be formally appointed in writing by the sheriff. It is sufficient to show that the jurors have been notified to appear by some person professing to act for the sheriff. And if it appears that the persons so acting have made diligent efforts to summon the jurors, the fact that some of them have not been found will not entitle the defendant to a new writ to secure their attendance. It was error to admit in evidence against the objection of the defendant the indictment against him and Thomas Gillum#for disturbing the family of W. li. Dumas. It was not shown that the deceased had any connection with this indictment; that he was a witness for the State as to the matters therein charged against the defendants; that he knew, or was thought by the defendants to have known, that it had been presented by the grand jury; nor does it appear that the defendant himself knew that such an indictment had been found against him. The indictments for retailing liquor were admissible as evidence. It appears from the testimony of several witnesses that the defendant knew that these indictments were pending against him, and that -he believed them to have been procured by the evidence of the deceased, and had threatened to kill him because of his action in appearing as a witness against him. They were, therefore, admissible as a part of the facts going to establish a motive on the part of the defendant to kill the deceased.

The threats and declarations of Thomas and Harry Gillum not made in the presence of the defendant should not have been admitted against him. After a conspiracy has been established by evidence aliunde, the declarations and acts of each conspirator in the furtherance of the common design are admissible against all, but it is necessary that such acts and declarations be shown to have been made or done in the prosecution of the common purpose. They are admissible as parts of the res gestae, and declarations or admissions which are not themselves acts and do not illustrate or interpret contemporaneous acts do not partake of the nature of res gestae, and are inadmissible against any others save those by whom they are made. 1 Phillips on Ev. 205; Wharton on Criminal Evidence, § 698. ^ The threats and declarations of Thomas and Harry Gillum which were proved against the defendant were none of them made while the parties were engaged in any attempt to kill or injure the deceased.

Judgment reversed.