Middleton v. State

80 Miss. 393 | Miss. | 1902

Calhoon, J.,

delivered the opinion of the court.

Undoubtedly Middleton shot and slew Ike Jones, who is shown to have been a violent and dangerous character. Middleton presented an application for continuance, based on the absence of an eye witness, which was overruled. We do not pass on this ruling, as the case is determinable regardless of it. The killing occurred about daylight, and three witnesses for the state made out a case warranting conviction from the shots, and what they heard said by defendant and deceased; but none of them saw the beginning of the trouble. Mack Washington, a witness for defense, testified that defendant Middleton, and Jones, Patterson, Moore, another Middleton, and himself were in his room that night; that among those of the party who went to sleep at all was the deceased, who awoke in the latter part of the night, and said $8 had been stolen from his pocket, took out his knife, searched the party, and said to Middleton, with an oath, that he had it, and, if he did not get it, he would cut him open. This money, by the way, was found on a window sill, as this witness says, and he (the witness) sat down on a chair, and was dozing, when he w,as awakened by quarreling just outside his door, ran to the 'door, heard defendant say, “Stand back, Ike; stand back,” saw Ike advance on defendant with a drawn knife, whereupon defendant shot at Ike twice in quick succession, and Ike ran, saying: “Don’t shoot me any more,” and defendant “backed off.” On cross-examination the prosecuting counsel, without first fixing time or place, or asking as to the fact, asked this witness whether he had not told a deputy sheriff that he was asleep, and knew nothing about the killing, and also that defendant had said, just before the killing, that he was going home and “get his gun and come back and fix Ike.” This question was permitted, over objection and exception, and prosecuting counsel was, in due course, permitted, over objection and exception, to contradict this statement by the deputy sheriff, who testified that the witness had so told him. The prosecuting counsel, in his closing argument to the jury, the court refusing to interfere on objection, used this as a fact proved, that the defendant had said these words, and spoke of them as coming “fresh from the lips of defendant himself.” He proceeded, “There can be no controversy about that fact, for the defendant’s witness told Mr. Rhodes that, just a few minutes before this killing, defendant left his door with the statement that he was going home and get his gun and come back and fix Ike Jones.” All this was urged with great eloquence of comment. We do not think an accused person can be lawfully convicted on what a witness said, or did not say, to another person. It needs only to read Williams v. State, 73 Miss., 820 (19 So., 826), and Allen v. State, 66 Miss., 385 (6 So., 242), to see a demonstration of these errors on reason and authority. To discredit a witness by showing that he made a contradictory material statement out of court is one thing, and it justifies argument that he is unworthy of belief. But it is quite another thing, and not justified, to predicate an argument for conviction on the unsworn contradictory statement out of court, in defendant’s absence, as if it were a substantive fact proved. Now, the fifth instruction was based on the testimony in chief of this witness, and was designed to emasculate it, and proceeds on the idea that, even if the jury believed that Jones did advance on Middleton with a knife, and Middleton told him to stand back, and fired on him, still they should convict, if they'further believed that Jones turned at the shot, and fled, and defendant pursued, and, when in no danger, shot him with deliberate design to kill, and did kill. The giving of this instruction was error, because it is a demonstrable certainty from this record that Jones was killed by the first shot of the pistol, and untouched by the second.

Reversed and remanded.