Johnson v. State

| Miss. | Nov 15, 1904

Truly, J.,

delivered the opinion of the court.

The testimony for the state, which was accepted by the jury as true, is sufficient to warrant their finding and sustain the conviction. It was shown that the deceased, Edward Paxton, only a short time before the homicide, had himself slain the brother of the appellant, and there was then pending against him a prosecution growing out of the killing. The existence of bad feeling between appellant and deceased was proven, and it was also shown, that appellant entertained such a deep degree of malice that only a short time before this homicide he had endeavored to hire the witness Britt to assassinate Paxton, offering as inducement $25 in money and a horse of the value of $100 5 that at the same time, when Britt refused, he had made threats,, and stated his intention of hiring some one else to kill Paxton. It further appeared that Butler, the party who actually shot Paxton, was an intimate associate of and had been reared in the same family with the appellant; that the appellant had purchased the rifle and cartridges with which the homicide was committed, only a few days before tbe killing, and had bad tbe same charged to tbe account of bis sister-in-law, whose bus-band Paxton bad killed, and bad secretly delivered tbe same to Butler. On tbe day of tbe homicide, and after its commission, appellant came to the town, some nine miles distant, and brought with him clothing for Butler, which Butler wore in making bis escape from tbe state; that be met with Butler at bis sister’s bouse, delivered tbe clothes to him, was seen counting out money in tbe room where Butler was and where tbe rifle was found bidden, and was beard to say to Butler that be desired him to get away at once. All this, if true, taken into consideration with other incriminating circumstances, shows such a guilty foreknowledge of and counseling and procuring tbe commission of tbe actual homicide as precludes us from disturbing tbe finding of tbe jury on tbe facts.

The testimony of tbe witness Britt, detailing a conversation which be averred occurred a few days before tbe homicide between appellant and himself, in tbe course of which appellant admitted tbe malice which be bore toward Paxton on account of tbe killing of bis brother and tbe subsequent conduct of Paxton, and endeavored to procure tbe witness’ service in tbe assassination of Paxton, and expressed a determination to have Paxton killed, was clearly admissible. It is an elementary principle that tbe acts, conduct, and words of a party accused are admissible in all cases where they tend to show either a motive for tbe commission of tbe crime or evince malice toward tbe party afterwards killed. Tbe testimony here under review proved both malice and motive. We can add nothing to tbe admirable- exposition of tbe principle controlling and permitting tbe admission of such testimony, contained in tbe opinion of this court rendered by Cooper, C. J., in Story v. State, 68 Miss., 609" court="Miss." date_filed="1891-04-15" href="https://app.midpage.ai/document/story-v-state-7987032?utm_source=webapp" opinion_id="7987032">68 Miss., 609 (10 South. Rep., 47). Tbe testimony here under review does not fall within tbe condemnation of tbe cases cited .by counsel for appellant. .This was in no sense proof of another and different substantive crime on tbe part of appellant, but was relevant testimony tending to show his connection with the murder for which he was then on trial. Testimony relevant in itself will not be excluded because it may incidentally disclose another offense, or show that the accused endeavored to procure the commission of another crime.

.The instruction for the state, as an abstract proposition of law, is erroneous, in that it authorizes the jury to convict the appellant of murder if he “counseled, procured, or commanded the killing of Paxton,” without stating that such “killing” must itself be murder. But under the facts of the instant case the error was not fatal or material, for the reason that there was no doubt or dispute as to the grade of the crime committed in the slaying of Paxton. The facts and circumstances disclosed by the record show that Paxton was waylaid and assassinated in cold blood. Again, it is admitted in this case, and so distinctly shown in the record, that Butler, the person who actually killed Paxton, had pleaded guilty to murder, and the record of that conviction was by consent admitted upon the trial of appellant. This cured any possible defect which existed in the instruction on account of the abstract form in which the legal principle was stated.

Affirmed.