Huggins v. State

| Miss. | Oct 15, 1912

Smith, C. J.,

delivered the opinion of the court.

This is an appeal from a conviction of the crime of murder. The homicide seems to have been the sequel of a difficulty which had taken place between deceased and appellant at an earlier hour of the same day on which the homicide occurred.

On cross-examination of two of the state’s witnesses, counsel for appellant attempted to bring out the details' of this former difficulty, presumably for the purpose of showing that the deceased was the aggressor therein, and also to show that in the progress thereof deceased had threatened to kill appellant. This evidence was objected to and excluded for the reason that at that time the evidence showed without doubt or conflict appellant was the aggressor in the difficulty which resulted in the death of deceased; in fact', that the homicide was a cold-blooded assassination. In excluding this evidence, the court was eminently correct. Previous difficulties and threats are not substantive facts necessary to be proven on the trial of a defendant charged with murder, but are only circumstances which may furnish some aid to the jury in determining who was the aggressor in the difficulty in which the deceased was slain. Testimony relative thereto is admissible only when a doubt arises from, or there is conflict in, the evidence as to who was the aggressor in the difficulty in which the deceased was slain, or when for some other reason it tends to explain the conduct of the defendant, and to justify him in taking the life of the deceased. While on cross-examination of a witness a party may bring out any fact which he would be entitled to prove by his own witness as a part of his case, still the rules governing the admissibility of evidence are the same, whether the witness from whom it is sought to obtain it is being examined in chief or on cross. The question here is not the power of the court to control the order of the introduction of testimony, but whether the evidence offered is admissible before a predicate therefor has been laid. Afterwards, when appellant introduced evidence tending to show that deceased was the aggressor in the difficulty which resulted in his death, the court then permitted Mm to introduce evidence relative to this previous difficulty; but he did not then ask, as he had the right to do, that these former witnesses be recalled for cross-examination on this point. One of these witnesses was introduced by the state in rebuttal on tMs point, and his evidence relative thereto was then — strange to say — objected to by appellant, and its admission is now assigned and earnestly argued as error.

When the defense introduced evidence tending to.show that deceased was the aggressor in the previous difficulty, which had become competent by reason of other evidence introduced by Mm, it then, of course, became competent for the state to introduce evidence.in rebuttal thereof.

Several objections .seem to have been interposed to certain remarks made by both the county and district attorneys in their arguments to the jury. These remarks are contained in a special bill of exceptions, and in testimony introduced by both the state and defendant on a motion for a new trial. All of this testimony was incompetent, and has no place in this record, as we have heretofore pointed out.

The only way to incorporate into the record those things which occur on the trial in the presence of the court, and which are not otherwise of record, is "by bill of exceptions, either special or general, made up in one of the ways prescribed by law. "The special bill of exceptions setting out these remarks of the county and district attorneys was not signed by the trial judge as presented, but was modified by him, and, as modified, the remarks were harmless. But even if these remarks were as set out by counsel for appellant, the making thereof, under the facts of this case, would not constitute reversible error.

On the motion for .a new trial, evidence was introduced tending to show that one of the jurors could not read and write, which fact was unknown to counsel when the juror qualified on his voir dire. A complete answer to this assignment of error is that, while under section 2684 of the Code ability to read and write constitutes one of the qualifications of a juror, the section further provides that “the lack of such qualification on the part of one or more jurors shall not vitiate an indictment or verdict.” We deem it unnecessary to notice the other assignments of error, most of which are frivolous, and all of which are untenable.

The judgment of the court below is affirmed, and Friday, the 21st day of February, 1913, fixed as the date for the execution.

Affirmed.