Hurst v. State

| Miss. | Mar 15, 1911

Lead Opinion

McLean, J.,

delivered the opinion of the court.

The appellant was tried and convicted for the carrying of a deadly weapon under sections' 1103 and 1105 of the Code. Mose Hurst testified that he heard many threats made by Charlie McLean against the appellant, and that he had communicated these threats to the appellant; that he heard the threats rumored, and knew that they were general and serious, and so stated to the appellant. Upon cross-examination this witness testified that he himself had not heard McLean, make the threats, but that one Enoch Williams had so informed him; and it developed upon the trial that Enoch Williams was present in the court room during the trial of the cause, and was not put on the stand to testify. Thereupon the court sustained the objection of the state to the testimony of this witness as to his having heard of the threats, and as to his having communicated these threats to the appellant. The evidence discloses that there had been had blood between the appellant and McLean, and, further, that the first time these parties met after the threats had been communicated to the appellant, appellant and McLean became engaged in a shooting scrape; that this difficulty was brought about by McLean, and that he, McLean, a very short time before the difficulty occurred, in fact on the very morning of the difficulty, had made threats against the appellant.

It whs error for the court to exdude the testimony of Mose Hurst to the effect that he had heard of the threats, and that he communicated them to the appellant. It is not necessary for the party to prove either that he himself heard, or that the party who informed him heard, the other party make the threats. The only thing necessary is that the party indicted was informed and so believed that he had been threatened, and “that he had good and sufficient reason to apprehend a serious attack from the party making the threats, and that he did so apprehend.” The whole object and purpose of the statute is that if the party in good faith honestly believed that the threats had been made, and coupled with this threat “he had good and sufficient reason to apprehend,” etc. The proof 'of the threat is made out by showing that the party on trial, and who is charged with carrying a deadly weapon, was informed and sincerely and honestly believed that the threat had been made. Mere idle rumors are not sufficient, but, when the information is brought home to the party charged that he has been threatened, this as to him is proof of the threats. It must be borne in mind that the party making the threats is not on trial, and his interests are in no way affected. The object and purpose of the statute in permitting the party to carry a deadly weapon is in order that he might protect himself against the attack of his adversary; and, if it became necessary, before the party has the right to carry the weapon, that he trace down to its fountain source the truthfulness of the threat, he might be deprived of his right to guard against the threatened attack.

After all, the question as to the good faith with which the party carried the weapon is a question for the jury.

Reversed.

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Dissenting Opinion

Mayes, C. J.

(dissenting)'.

It is my judgment.that the opinion of the majority is wrong, and I therefore feel compelled to dissent. The appellant is prosecuted for carrying concealed weapons, and the evidence leaves no doubt as to the charge being completely made out by the evidence. The defense is that appellant was justified under the law in carrying the weapon concealed because he was threatened at the time, and had good and sufficient reason to apprehend an attack from an enemy, and that he did so apprehend. Referring to the statutes under which this prosecution and defense is made, they are sections 1103 and 1105 of the Code of 1906. Section 1103 prohibits all persons from carrying concealed weapons, but section 1105, par. “a,” allows any person indicted for a violation of section 1103 to show as a defense that the person charged “was threatened,” and “had good and sufficient reasons to apprehend a serious attack from an enemy,” etc. It is under this clause of section 1105 that appellant rests his defense, and, in order to prove the threat, he introduces Mose Hurst, his father, who undertakes to tell that one Enoch Williams told him (Mose) that McLean had threatened to kill appellant. No threats had been made to Mose, and he knew nothing of any threats ever having been made other than what he says Enoch Williams told him. The trial court excluded this testimony on the motion of the state, and it is my judgment that the trial court’s action was proper because such testimony was hearsay pure and simple. In justification of carrying concealed weapons the statute requires proof that the party charged with the violation prove that ho was threatened — actually threatened. This proof can only be made by the persons to whom the threats were made. The threat is a fact to be established, and, like all other facts, it must be established by persons having actual knowledge of the fact, and cannot be established by hearsay. This is the universal rule of law as I understand it. If the jury were called upon to place credence in the story of Mose Hurst, they .must rely, not on any knowledge that Mose had of any threats having been made, but on the fact that Enoch Williams told him what Mose said he did, and the further fact that threats were actually made to Enoch Williams by McLean against the life of appellant. If testimony of this character is admissible to prove threats, there can be no limit placed on the chain of communication, and the witness to whom the threats were actually made may be one hundred times removed from the actual witness on the stand. In other words, the threats may be claimed to have been made to person No. 1, who communicated what No. 1, told him to No. 2, who, in turn, told it to No. 3, and so on down, until it reaches person No. 100; and this last person may be put on the witness stand to prove the threats. This is the practical holding of the court as I see it.

The majority opinion says that “the object and purpose of the statute is that if the party in good faith honestly believed that the threats have been made, and coupled with this threat, has good and sufficient reason to apprehend an attack, etc., the proof of the threat is made out by showing that the party on trial and who is charged. with carrying the deadly weapon was informed, and sincerely and honestly believed that the threat had been made.” I am-utterly unable to comprehend how “the proof of the threat” can be established, as the statute says it shall be, “by showing that the party on trial and who is charged with carrying the deadly weapon was informed and sincerely and honestly believed that the threat had been made.” The statute plainly says that, in order to make out a defense under the statute, the party charged must show “that he was threatened,” etc.; but the majority opinion says “it is not necessary for the party to prove either that he himself heard, or that the party who informed him heard, the other party make the threats.” I cannot understand how threats can be proved except by persons who heard them. Under the terms of the statute, it is not sufficient to justify that a person have “good and sufficient reason to apprehend a serious attack,” but such person must in addition be “threatened” with same.

The majority opinion makes of section 1105 a different statute from the one enacted by the legislature. The legislature did not make the right to carry a concealed weapon depend upon any belief as to the existence of the justifying facts, which the party charged with carrying same may have in his oWn mind at the time, however sincerely and honestly he may entertain this belief, but his right to carry a concealed weapon depends upon the actual fact that he has been threatened; and, when he relies upon this defense, he must prove the facts by the parties who heard the threats made, and he can prove it in no other way.

I can comprehend no reason why hearsay testimony under this statute is any more admissible to prove the facts making the defense than is hearsay testimony in any other cause.