Hill v. State

79 So. 98 | Miss. | 1918

Sykes, J.,

delivered the opinion of the court.

Pink Hill was convicted of murder ‘and sentenced to the penitentiary for life, from which sentence this appeal is prosecuted.

The uncontradicted testimony shows that the deceased, Ausby Townsend, on the morning of the killing told Pink Hill that he would kill him, before sundown. He also made this statement to several other witnesses in the case. The appellant, Pink Hill, was employed to carry the mail between the depot and the post office in the town of Eupora. After this threat of the deceased the appellant procured a pistol from the drawer of the station agent in the town of Eupora. He carried the mail from the depot to the post office about 3 o’clock in the afternoon, and was on his way from the post office back to the depot when the killing occured. The testimony about the actual facts relating to the killing is contradictory. The testimony for the state showed that appellant walked up and shot the deceased when the deceased was not looking toward appellant and was not aware of his approach, but was standing on the edge of the sidewalk with his hands behind him. The testimony, introduced by the appellant showed thai the deceased saw Pink Hill coming, and, when Hill was within a few feet of him, stuck his right hand in his. overalls as if to draw a weapon. The uncontradicted testimony shows that the deceased was talking to a man by the name of James West at the time he was shot. West testified on behalf of the appellant. His testimony corroborated that of the defendant himself, namely, that Townsend saw Hill approaching and made an attempt to put his right hand in his overalls. On cross-examination the witness West was asked by the district attorney whether or not at a certain livery stable shortly after the killing he did not state to three white men, naming them, that Townsend did not see Pink Hill at all and did not know who shot him. ' The witness denied making this, statement. He was further asked on cross-examination if he did not state to two white men at or near a public well in the town shortly after the killing that Townsend did not know who shot him and that Hill shot Townsend without provocation. The witness also denied making this statement. .Several of these white men testified in rebuttal to the fact that West made substantially these statements near the livery stable and near the public well. Objections and exceptions were made to this rebuttal testimony.

In his closing argument to the jury the district attorney used this language:

“Who knows better how this thing happened than James West? While it was fresh in his mind, what did he tell Mr. Eudy? That he shot him without provocation-; that it was so close to his face that it burned him.”

This argument was objected to, objection overruled, and exception taken. Whereupon the district attorney proceeded:

“That while this thing was yet fresh and burning in his conscience and upon his mind, before he had a conference with anybody, what did he do? He goes out there and talks to them, and what did he tell them? He told them about what he told Eudy. Then, gentlemen of the jury, he ought to know how that thing happened. There is the man that was right by Ausby Townsend when Pink Hill shot him.”

Objection and exception was taken and overruled to this argument, and a special bill of exceptions was duly taken thereto.

One of the errors assigned and urged upon this court to reverse the case is this argument of the district attorney. It is contended by the appellant that this rebuttal testimony was no evidence of the guilt or innocence of the appellant, but was introduced solely for the purpose of impeaching the credibility of the witness James West; that the district attorney, however, by this argument used this testimony as substantive or direct testimony. It is conceded by the Attorney General that this testimony was only introduced, or could only be introduced, to impeach the credibility of the witness James West, and was no substantive evidence of the guilt of the appellant, but that the argument of the district attorney ought not to be construed as is contended by the appellant.

This argument, however, of the district attorney lays special stress on what James West told Mr. Eudy and these other men, and then treats this hearsay statement as evidence of how the shooting occurred, namely, that appellant shot Townsend without provocation. That this argument is a direct appeal to the jury to convict the appellant upon the hearsay testimony of these rebuttal witnesses is too plain for discussion. This character of argument has been expressly condemned in the cases of Allen v. State, 66 Miss. 385, 6 So. 242, and Middleton v. State, 80 Miss., 393, 31 So. 809. In the Allen Case the argument of the district attorney was not even objected to by counsel for the defendant. In the Middleton Case the rule is thus tersely and correctly stated:

“To discredit a witness by showing that he made a contradictory material statement out of court is one thing, and it justifies argument that he is unworthy of belief. But it is quite another thing, and not justified, to predicate ah argument for conviction on the unsworn contradictory statement out of court, in defendant’s absence, as if it were a substantive fact proved.” 80 Miss. 303, 31 So. 810.

To mqet the erroneous argument of the district-attorney above quoted, the appellant asked and was refused the following instruction:

“The court instructs the jury that the evidence of J. E. Eudy, C. B. Pittman, and J. A. Spikes contradicting the witness James West must not be considered by the jury as any evidence of the guilt or innocence of Pink Hill, but must only be considered as going to the credibility of the witness James West.”

It is contended by the Attorney General that this instruction is incorrect, because it should have had before the word “evidence” either the word “direct” or “substantive,” and for this reason it was not error in the court below to refuse the instruction. This instruction is plain and unambiguous, and correctly states the rule of law that this testimony could only be used as going to the credibility of the witness James West. It should have been given. It was especially important that this instruction be given the. appellant because of the erroneous argument of the district attorney.

The jury in this case from the argument of the district attorney and the failure of the court to grant this instruction must have believed that they could consider and did consider as substantive evidence of the guilt of the appellant the testimony of these rebuttal witnesses as to the hearsay statement of James West made to them that Hill shot Townsend without provocation.

Viewing the record as a whole, we are constrained to say that appellant has not had the fair and impartial trial to which he is entitled under the law.

The judgment of the lower court is reversed, and the cause remanded.

Reversed and remanded.