Mask v. State, 2 Morr. St. Cas. 1100

2 Morr. St. Cas. 1100 | Miss. | 1872

Harris, J.:

The plaintiff in error was convicted upon an indictment for murder in the circuit court of Marshall county. This writ of error is prosecuted to reverse the judgment pronounced on that conviction. Six causes of error are assigned. We shall, however, notice those only which are relied on in the briefs of counsel and in the argument of the case, the others having been waived, by agreement, as not being sustainable.

The first ground of error relied on is, that the court erred in permitting Walker and Blackard to answer the questions in relation to the character of Thomas Wooley for truth and veracity, and permitting said answers to go to the jury as evidence.

It is contended that these witnesses never heard the character of Wooley for truth and veracity called into question until after the killing; their testimony to impeach his character should have been rejected, on the principle post litem motam, applicable to hearsay evidence, even when otherwise admissible.

This is certainly a novel application of the rule, as well as a misconception of the reasons on which it was founded.

The doctrine of ante litem 'motam, or that evidence of reputation or common fame, must be confined to declarations “ made before any controversy arose,” is a qualification of this exception to the general rule of excluding hearsay evidence, to wit: that in matters of public and general interest, evidence of common reputation is admissible. The ground on which such evidence is admitted is, that the declarations offered are the natural effusions of one who knows the truth, and speaks under circumstances wholly devoid of temptation to falsify it. 1 Greenleaf Ev., chap. 6, §§ 127, 131; Whitlock v. Baker, 13 Ves., 514; Rex v. Cotton, 3 Campbell, 444-446.

Formerly the-rule was limited to declarations made before the commencement of the suit. The latter and better doctrine is, that to avoid the mischiefs which might otherwise result, all ex parte declarations, even though made upon oath, referring to the beginning of the controversy, are to be rejected.

The lis mota here referred to -has relation to the principle subject in controversy, before the commencement of the suit, and in issue on the trial, where the evidence is sought to be introduced, and not to collateral and incidental questions, arising in the progress of the trial, for the first time, as a matter of controversy.

To prove that a witness is a man of bad character among his neighbors generally, that by common reputation he is devoid of truth, does not prove that there ever had been a controversy or dispute on that subject, but rather the contrary ; that it was a subject of public and general agreement among his neighbors about which there was no controversy ; and the force of such testimony to discredit a witness must always depend on the extent of this general agreement. These facts are always elicited, or not, at the discretion of the counsel, before the jury; and in proportion as the matter of character is settled or controverted in his neighborhood, will the jury attach importance to the opinion of the witness called to discredit him.

In the sense of our law, therefore, says Mr. Greenleaf, “ The lis mota carries with it the further idea of a controversy upon the same particular subject in issue. For, if the. matter under discussion at the trial, was not in controversy at the timo to which the declarations offered in evidence relate, they are admissible, notwithstanding a controversy did then exist upon some other branch of the same general subject.”

"Where the point in controversy is foreign to that which was before controverted, there never has been a lis mota, and consequently the objection does not apply. See 1 Greenleaf’s Ev.,,. § 132.

We conclude, therefore, that there is no error in this assignment. It is next insisted, on the part of counsel for plaintiff in error, that the court erred in giving the third charge ashed on the part of the state, as follows :

“ If the act producing death be such as is ordinarily attended with dangerous consequences, as by the use of a deadly weapon,, or be committed deliberately, the malice will be presumed,, unless some sufficient excuse or provocation should be shown. For the law infers that the probable effects of any act deliberately done, were intended by the agent.”

It is objected to this charge, that it does not contain the ■ qualification that the malice may be rebutted as well by the evidence as produced against the defendant, as by his own testimony, and the case of McDaniel against the State, in 8 S. & M., is cited as an authority in point. ■ The charge held erroneous in that case was this: “ Eveiy homicide is presumed to be committed with malice aforethought, and it devolves on the prisoner to prove the circumstances which excuse the act.” The court held that the jury should not have been limited in their investigation to the evidence produced by the prisoner alone, but they should have been instructed to look to the whole evidence, both that against him as well as for him, for circumstances of justification or of excuse for the act. In the case before us no such limitation occurs, but the instruction strictly conforms to the ruling of the case cited from the court.

The third cause of error insisted on, is the giving the seventh instruction asked by the state, to the following effect: “ If the jury believe from the testimony that the defendant was endeavoring to kill William Smith or .commit a felony upon him, and killed, in that attempt, the deceased, either accidentally or wilfully, they will find him guilty of murder.” And it is upon this assignment that counsel mainly rely in their argument for a reversal of the cause. It is urged with much zeal and ingenuity that the charge, as asked and given, precluded the jury from all inquiry into the circumstances of alleviation, justification, or excuse, that may have existed, and induced the attempt to kill William Smith, and .the accidental killing of deceased, and required them to return a-verdict of guilty of murder, notwithstanding they may have been satisfied from the evidence, that in such attempt the defendant, was acting in self-defense.

To this view of the instruction objected to, several answers occur to us, either of which is deemed conclusive on this assignment.

First. “ It is the settled rule of this court, that all the instructions given by the circuit court on the trial of a cause, must be construed together; and if, when all taken together, the law be correctly given, the judgment will not be reversed because a' single instruction, taken by itself, might be too broad in its terms.” Childress v. Ford, 10 S. & M., 25.

Talcing this rule as a guide, and placing the seventh instruction for the state and the fourth instruction for the defendant together, to explain and make it more intelligible, as it was doubtless intended, let us see whether it was possible for the jury to have misunderstood its meaning.

Seventh. “ If the jury believe, from the testimony, that the • defendant was endeavoring to kill William Smith or commit a felony upon him, and killed in that attempt the deceased, either accidentally or wilfully, they will find him guilty of murder.”

Fourth. “ In a charge of murder, the guilt to be established is not the killing only, but also the killing with premeditated design to effect the death of any human being, and the evidence must generate the full belief of the fact, to the exclusion of all reasonable doubt, or the jury cannot find the defendant guilty of murder.” ■

Add to this the fifth instruction for defendant: “ 5. If the jury believe from the evidence that the defendant killed the deceased without a design to effect death, in a heat of passion, but in a cruel and unusual manner, such killing would not be murder, but manslaughter.” And the thirteenth instruction for defendant, as follows : “ 13th. The killing of .a human being in the heat of passion, but in a cruel and unusual manner, unless it be committed under such circumstances as to constitute excusable or justifiable homicide, is manslaughter only, and not murder.” Taking these instructions altogethei’, this assignment is wholly untenable.

The fourth instruction informed the jury that, to constitute murder there must have been premeditated design to effect the death of soxixe human beiixg.

The fifth insti'uction informed them, that if the killing was without design to effect death, but in the heat of passion, and in a cnxel and unusual maimer, that such killing would only be manslaughter.

And tile thirteenth instruction informed them, that under the last-named state of facts, the defendant would not be guilty of manslaughter even, if such killing was committed under circumstances constituting excusable or justifiable homicide.

These, with other instructions in the record, left the jury untrameled to consider the defendant’s case, and to decicje it according to the facts and circumstances in proof before them.

Again, the precise point here presented has been determined by this court in Cotton v. State, 31 Miss. R., 504. In this case the following instruction was asked and given for the state: “ If the jury believe, from the evidence, that the accused killed the deceased, and no accompanying circumstances appear in the evidence to excuse the act, the law presumes the killing was done maliciously, and they will find him guilty of murder.”

The same argument was made for reversal upon this instruction as now presented to us, to wit: That the instruction limited the investigation of the jury to the crime of murder, or to the defense of excusable homicide, ^ind that they were not permitted to take into consideration the defense of manslaughter.

The court, in answer to this objection and argument, says: “ Our conclusion upon the point is, that the instruction was wholly unnecessary; that it did not in the least influence the jury, and we should not, therefore, reverse the judgment on this ground.”

But again: The cases are numerous, not only in this court, but elsewhere, extending both to civil and criminal cases, that “ wrhere the judgment of the court below is clearly right, the High Court of Errors and Appeals will not be warranted in reversing it because the instructions asked were erroneously given or refused.” McLanahan v. Barrow, 27 Miss. R., 664; State v. Cotton, 31 Miss. R., 504; Brantley v. Carter, 26 Miss. R., 282; Cantzon v. Dorr, 27 Miss. R., 245; Hill v. Calvin, 4 How. R., 231; Baynton v. Furnall, 4 S. & M., 193; Wilkinson v. Griswold, 12 S. & M. 669; Wiggins v. McGimpsey, 13 S. & M., 532.

Wharton says: “ If an error be immaterial and irrelevant, and justice has been done, the court will not set aside the verdiet, nor enter into a discussion of the question of law.” American Criminal Law, § 3080, 4th revised edition, citing very many authorities, ancient and modern, English and American, for the rule.

Considered in reference to this reasonable rule, the assign-' ment of error under consideration seems to be wholly without force. There is not only no testimony to support the defense attempted to be insinuated, that the deceased was killed by the defendant accidentally, while attempting to kill her brother, but the proof is overwhelming, both from his own confession and other testimony, that the suggestion is utterly untrue.

The testimony shows that the killing was not accidental, but intentional; that instead of its being connected with the act of shooting at William Smith, or endeavoring to kill him, it was after 'defendant had left him, and was going from him, that he met and killed deceased.

The instruction was, therefore, unsupported by any evidence whatever; and taken alone, even if it were so erroneous, in the language of the court in the case of The State v. Cotton, “did not in the least influence the jury, and we should not, therefore, reverse the judgment in error.”

. The next error insisted on in argument is, that it erred in modifying several instructions asked by the defendant, which, without such modifications, stated the law'1 correctly, and this argument is more directed to the general impolicy of such a practice than to any erroneous charge made by the modifications complained of. Indeed, on examination of these several charges, with their respective modifications, as given by the court, we are satisfied that they stated the law correctly. In Boles v. The State, this court has said that, “in criminal trials, the circuit judge is not bound to give or refuse the instructions asked by counsel on either side in the precise terms in which they were framed. He may modify the charges asked on both sides, so as to make them conformable to his own views of the law.” 9 S. & M., 284; Green v. The State, 28 Miss. R., p. 687.

It is, therefore, not only the right but the duty of the presiding judge to modify all instructions., “ so as to make them conformable to his own views of the law.” In the exercise of this right, this court is to presume that the high and dignified tribunals to whose discretion it is previously committed, are always actuated by motives consistent with the delicate, responsible, and important trusts confided to their care. While, therefore, we admit the soundness and force of the views of counsel of the impolicy, as a general rule, of the unnecessary interferenee of the court in. modifying instructions for the defendant, drawn with legal accuracy and precision, both as to the terms employed and the principles declared, yet this is matter of discretion and taste for their determination, and not ours, so long as they properly declare the law given in charge.

In this case we think the law was properly expounded by the court below, when considered altogether, according to the established rules referred to, and in reference to the testimony in the cause. And we feel satisfied that the jury could not have been in any manner misled, to the prejudice of the defendant, by any instruction or modification, exhibited in the record as having been submitted to the consideration of the jury.

The last ground of error insisted on is that the verdict of the jury was contrary to the evidence, and the court should have granted a new trial.

But for the able, earnest, and ingenious review of the testimony in the cause, by the respected counsel who seemed seriously to entertain this view, we should have regarded this last assignment as pro forma only. Impressed, however, with the zeal, as well as the candor of the argument, insisting on this ground, we have carefully examined the whole testimony in the record, in reference to the accuracy of this position, but are unable to discover any good reason in the testimony to doubt for a moment the correctness of the verdict, or the judgment of the court refusing a new trial.

The circumstances of the ease show deliberation, preparation, concert, to violate the laws of the land, and desecrate the sanctity of domestic peace and privacy. That, in the prosecution of that unlawful purpose, the defendant, with others, his relation and friends, went to the residence 'of the deceased and her brother, William Smith, then both residing with their father and mother. And, even according to the account of his own witness and accomplice, Wooley, when respectfully approached by William Smith, answering to his call at the gate, “ told him he wanted nothing to do with him — wanted to see the old man; ” according to the old man Smith’s testimony, as well as other witnesses, defendant commenced the difficulty, and made the assault upon Smith, who was wholly unarmed, shot him twice, shot at Mm a third time, then turned from Mm, rushed in an opposite direction toward the deceased, who, in. her natural indignation at the outrage committed on her brother, only-said to him, “You had better be getting away from here,” and shot and Idlled her.

The proof is positive, both by Ms own confession and the testimony of several eye-witnesses, that he did the act. The circumstances all show that no one else could have done it, if the testimony be true. We can see no pretence for the defense that it was done accidentally by him; or for the more inconsistent one, that it was not done by him, but by some one else having a rifle.

We think the verdict of the jury was not only warranted by the testimony, but imperatively demanded by the atrocity of tl\p crime it developed; and, while we lament the necessity which invokes our agency in the dreadful doom we are called to pronounce, as the ministers of the law, on the wretched offender, we still feel admonished by that very necessity, that in our firm and faithful adherence to the rigorous enforcement of its precepts, is to be found the only safety of good citizens, the security of home, and even protection to its helpless inmates.

Let the judgment be affirmed.