69 So. 210 | Miss. | 1915
delivered the opinion of the court.
The appellant was indicted at the January term, 1914, of the circuit court of Tallahatchie county, upon a charge of murder. Upon his trial he was convicted of murder and sentenced to life imprisonment. The indictment and conviction were for the killing of one T. Y. Wylie on March 15, 1913, in the town of Sumner, Tallahatchie county, Miss. The homicide occurred at a drug store in said town on Saturday afternoon, where said Wylie was standing on the inside at the time that the defendant and one Zack Denton together entered the said drug store. The shooting began at the time Denton and Marley entered the front door of the drug store. Denton received only one, but a fatal,
The appellant did not testify. His counsel contend that he did not participate in the shooting. It appears that he was armed with a pistol at the time of the homicide, and there was evidence indicating that he participated in the shooting. The evidence disclosed that bad feeling existed between Wylie, on the one hand, and the appellant and Denton, on the other, and that Wylie had threatened them, and that Marley had threatened Wylie. So far as Marley is concerned, this feeling appears to have grown out of the alleged fact that Wylie had run laborers off the Smith Murphy estate, which had been under the management of appellant for two or three years. This estate owned and operated a plantation commissary in the town of Sumner, and Wylie had formerly been employed by said estate, but had been discharged by Marley some time before the homicide. One Pope was a bookkeeper at the commissary, and one Ferguson was another employee. Zack Denton was employed by the same estate.
A few minutes before the homicide there was a difficulty, or near difficulty, between Wylie and Pope and Ferguson in the street near the drug store. Evidence as to the details of this difficulty was, over the objection of appellant, permitted by the court to be considered by the jury. Though Marley was the only one indicted
The court admitted the dying declaration of Wylie as detailed by his wife and by one L. L. Jones, a deputy sheriff. A witness for appellant, one F. L. Sumner, also testified to the dying declaration of Wylie.
There are many assignments of error which we do not deem it necessary to consider in view of what is hereinafter decided. We hold that the presiding judge was not disqualified to try appellant.
The assignment of error as to the alleged invalidity of the indictment is not well taken. The point was not raised in the lower court. Hayes v. State, 96 Miss. 153, 50 So. 557.
It is assigned as error that the court erroneously admitted the dying declaration of the deceased. Proper objection was not reserved in the lower court to the admissibility of this evidence upon the ground relied upon in this court for reversal. It is here contended for the first time that the declaration was inadmissible for the reason that the evidence disclosed that the .declarant was actuated by malice, ill will, and a spirit of revenge toward defendant, and the Reeves Case, 64 So. 836, is relied upon as requiring the exclusion of the dying declaration altogether from the jury. In the Peeves Case, however, it will be noted that the dying
Tbe testimony of Mrs. Wylie as to tbe dying declaration was not objected to by appellant. A general objection only was made to tbe testimony of tbe deputy sheriff, L. L. Johnson, tbe other witness for tbe state who testified to tbe dying declaration. After tbe state rested, appellant moved tbe court to exclude such parts of tbe testimony of Mrs. Wylié as dealt with declarant’s statement as to what be desired done with bis life insurance, tbe schooling of bis children, and bis private affairs, and other parts upon tbe further ground that tbe dying declaration was a statement of a conclusion and not a statement of facts. Tbe statement specifically objected to was: “Marley killed me.”
Tbe court sustained tbe objection tó tbe statements with reference to bis private affairs, tbe schooling of bis children, bis insurance, etc., but admitted tbe statement: “Marley killed me.” Tbát statement was manifestly a statement of a fact, and not of an opinion. Tbe dying declaration must be restricted to tbe act of killing and tbe circumstances immediately attending the act which form a part of tbe res gestae.
Tbe appellant introduced a witness, F. L. Sumner, who was present at tbe time of tbe dying declaration of tbe deceased. After tbe state and defendant finally rested, tbe appellant moved to exclude all tbe testimony as to tbe difficulty between the deceased and Pope and Ferguson prior to tbe homicide, and also testimony of Mrs. Wylie, and also tbe testimony of each and every witness as to any purported dying declaration. Thi& motion was overruled by tbe court, and tbe record does not show that any exception was reserved to such ruling. It is true that specific objection bad been interposed to all evidence relating to tbe difficulty in' tbe street prior to tbe homicide, on tbe ground that Marley was not shown to be connected with tbe difficulty.
It is the province of the trial court to determine whether the declaration was made in extremis, and whether declarant realized his condition, and whether it should be submitted to the jury at all. It is for the jury to say, under proper instructions, when such declaration is admitted in evidence, what weight shall be attached to it. It. is therefore important to consider the instructions granted and refused defendant with reference to the dying declaration.
Preliminarily,' we observe that, if the evidence as to the dying declaration clearly shows that the declaration was actuated by malice, venom, ill will, and desire for revenge, it should be excluded altogether from the consideration of the jury. Reeves v. State, 64 So. 836. Whenever, by reason of a conflict in the evidence, it is not clear in the mind of the court whether the dying declaration is the result of malice, ill will, and a spirit of revenge upon the part of the deceased toward the defendant, the solution of that question is for a jury under proper instructions.
The fifth instruction requested by defendant and refused by the court was in the following language:
“The court instructs the jury for the defendant that, if they believe that T. Y. Wylie at the time he is alleged to have made a dying declaration, or statement, to any witness who has testified in this case, was in the frame of mind revengeful against the defendant, desiring to seek revenge, and to that end made the statements, or if from all the evidence in the minds of the jury such dying declarations evinced upon the part of the deceased, T. Y. Wylie, malice, hatred, or ill will towards the defendant, they shall disregard the testimony of each and every witness ^who has testified to*724 anything that the deceased, T. T. Wylie, said to such witnesses. ’ ’
This instruction should have been granted, and the refusal to grant same constitutes reversible error. Obviously, if it was clear that the dying declaration in the instant case was made by deceased in the manner and accompanied with the profane language and venomous and revengeful expressions detailed by appellant’s witness F. L. Sumner, the court should not have submitted it'to the jury at all, had the proper objection been interposed. So likewise, if the jury found as a matter of fact that the dying declaration was actuated by malice, hatred, ill will, or a spirit of revenge, if was their duty to disregard the dying declaration altogether. Appellant was entitled to an instruction charging the jury as to their duty in that connection, upon request therefor. The jury should know what legal consequence follows such a finding of fact by them. ■
The court also erred in permitting the witness Will Woods to testify that as Marley and Denton were walking up the street towards the drug store immediately before the killing some bystander said: “There is going to be trouble.” This evidence was properly objected to by appellant, and the court erroneously overruled such objection, to which ruling of the court proper exception was reserved. Under the facts of this case, this evidence was manifestly incompetent.
We now consider appellant’s assignment of error in admitting evidence as to the details of the street difficulty between Wylie and the two employees of the. Smith Murphy estate, Pope and Ferguson. Pope and Ferguson did not testify upon the trial.
Without detailing all the facts and circumstances of the case, we hold that such evidence was admissible, although there may have been insufficient evidence to show a conspiracy between Pope, Ferguson, and Den-ton and appellant |o kill Wylie. The undisputed evi
The state did not request any instructions based upon the street difficulty as evidencing a conspiracy to kill Wylie. The objection first interposed to this evidence was a general one which was overruled by the court. After the state rested, the appellant moved the court to exclude the testimony of every witness showing or attempting to show, either directly or indirectly, a difficulty between T. Y. Wylie, deceased, and one H. H. Pope and John Ferguson, and for cause of this motion says:
‘ ‘ There has been no attempt to connect the defendant, E. J. Marley, with this difficulty, and on the contrary, the evidence shows that he was entirely excluded from the difficulty and in no way connected with it. Second. There is nothing in the evidence to show any connection with E. J. Marley with this difficulty or alleged difficulty. ’ ’
Motion was overruled, and appellant excepted to such ruling.
After both sides had rested, appellant renewed his motion to exclude this evidence. The motion was overruled, but no exception was reserved to such ruling of the court.
As before stated, we hold this evidence competent as a circumstance to be considered by the jury in determining whether the meeting of Wylie and Marley and Denton at the drug store was accidental or intentional upon the part of Marley and Denton.
We do hold that the profane language used by Pope as Wylie walked away, to the effect.that he would like to “put some hot lead in the-,” should not be admitted upon a second trial, as this record now stands.
It follows from what we have said that the judgment of the circuit court should he, and it is, reversed, and the case is remanded for a new trial.
Reversed and remanded.