Murphy v. State

92 So. 694 | Miss. | 1922

Ethridge, J.,

delivered the opinion of the court.

The appellant was indicted, tried, and convicted for the murder of Virgil Pryor, and sentenced to a'life term in the state penitentiary.

The body of the deceased was found in a millrace in a badly decomposed, condition, but several witnesses testified positively to his identity and also to the identity of his clothing and shoes. The theory of the state was that the deceased was killed by the appellant and others on or about the 27th day of September, 1921, being the fourth Tuesday of the said month. The deceased had been working with a brother of the appellant and lived at his house. The appellant and said brother, Warren Múrphy, and another man named Jim Cash, whq was a brother-in-law of the said Murphys, were indicted for the said murder. The proof showed that said parties indicted and the deceased had been engaged in the manufacture of illicit intoxicating liquors, and that the appellant disappeared on the said Tuesday evening ivhen he was supposed to have been killed and had not been seen until his dead body was found in the said millrace. The father of the appellant after the disappearance of the deceased made inquiry of Warren Murphy, with Avhom the deceased lived, and Avas told not to be uneasy, that the deceased had gone to Arkansas, and that said Warren Murphy had furnished him Avith eight dollars and fifty cents for that purpose. Another witness testified to a conversation betAveen appellant and herself Avith reference to some chickens which had been stolen from her, and said that appellant stated to her that the deceased had gone to Arkansas and would not return soon, and that she need not be uneasy about any more of her chickens being stolen. It Avas further shoAvn in evidence that on the night preceding the disappearance of the deceased the appellant took the brother of deceased, avIio Avas a negro, the appellant being a Avhite man, to his house and kept him there in the house during that night, stating to the said brother that the revenue officers Avere in the neighborhood, and that he Avas expecting them to arrest' the said party. HoAvever, the said brother of the deceased left the premises of appellant that morning without restraint and unmolested. On the afternoon of the disappearance of the deceased a Avitness testified to seeing the appellant and the deceased, Warren Murphy, and Jim Cash in a car going in the direction of the sAvamp and in the direction of the place Avhere the dead body Avas afterwards found, and that late in the afternoon he heard shooting in that direction, and after dark heard the car returning and heard parties in the car stating that they Avere tired of negroes interfering Avith their business, but did not recognize the voice of any one of the defendants so indicted. Another witness testified that on the evening in question he heard holbwing in the direction of where the body Avas found and recognized the voice of the deceased; that the hollowing indicated that the person was in distress; that he heard a shot and then a little quiet, and then more hollowing and a second shot, an additional hollowing, and then a third and larger shot, after which he heard no more hollowing, but heard the car cranked up and start on the return trip, and that the said car passed the residence of the other witness who testified to seeing the parties going in the direction of the scene of the alleged killing. The hands of tin-deceased, when found, were cut off above the wrists, and there was a large hole in the side of his forehead, and he had been shot in another place. A brother of the deceased also testified that he was confined in the jail subsequent to the disappearance of the brother with the parties indicted in the present case; that the white men were upstairs, and that he was downstairs, and that he heard Jim Cash stating to another party who ivas in jail that he (Cash) had nothing to do with the killing except to help throw the body in the creek; that Warren Murphy did the killing; and that Mr. Joe was up there. It is also shown in evidence that Jim Cash and the deceased had a quarrel on the day preceding the disappearance of the deceased, and that'Warren Murphy stated to Cash to let him alone and “we will get him later,” or some equivalent remark. It is further shown in evidence that there were no revenue officers in the vicinity at the time that the appellant took the brother of the deceased to his house and made the statement above referred to about the revenue officers. The wife and daughter of the deceased testified that he was at home the evening of. the alleged killing, and that he had been on the afternoon preceding with a party of people to a bee tree, and two or three witnesses testified that he was with them on the said afternoon, and that he left the swamp before night. There Avas also a' witness who testified for the defendant who stated that he spent the night at Joe Murphy’s house, in which it is claimed that the deceased was killed; that he and the deceased slept in the same room; and that the deceased only went out of the room that night for a short while, he could not say definitely how long. The house of Caldwell, the witness Avho .testified to seeing the deceased and the defendants together in the car on the evening Avhen the killing is supposed to have occurred, Avas one hundred and five yards from the public road.

It is insisted that the evidence is insufficient to sustain a conviction, and the case of Hogan v. State (Miss.) 90 So. 99, is relied on with other cases. We have carefully considered the evidence produced by the state, and weighed it by the rules announced in the Hog ah Case, supra, and have reached the conclusion that the evidence is sufficient to support the verdet. It is true that there are conflicts between Avitnesses for the defendant and the Avitnesses produced by the state, but in the light of the jury’s verdict Ave must assume the facts and circumstances testified to by the state’s Avitnesses to be true. Taking those facts to be established in accordance Avith the rules on circumstantial evidence, Ave think the testimony for the defendant presents a case of conflict for the jury’s decision, and that Ave are not authorized to hold that the evidence is insufficient to sustain the conviction.

It is next insisted that instruction No. 4 for the state is reversible error. This instruction reads as folloAvs:

“The court charges the jury for the state that, if they believe from the evidence in this case beyond a reasonable doubt that there Avas an unlawful agreement between Joe Murphy, Warren Murphy, and Jim Cash, or between Joe Murphy and either Warren Murphy and Jim Cash, to unlawfully take the life of the deceased, and that in pursuance to this conspiracy or agreement the defendants charged in this indictment, or either of them, killed and murdered the deceased as charged therein, then the defendant Joe Murphy is as truly guilty of murder as though he had actually committed the homicide by himself alone.”

This instruction is an instruction upon conspiracy and is not intended as a definition of .murder. Instruction No. 1 for the state defines murder, and the instructions for the defendant also give the jury full information as to the necessary ingredients for murder and the degree of proof required to establish it.

It is also objected that the court erred in admitting evidence that the deceased and the defendants engaged in the manufacture of intoxicating liquors. This proof was produced by the state for the purpose of showing motive, and it is supplemented by proof in the record' that the defendant stated that the deceased had been talking too much. Whenever the commission of another offense tends to establish a motive for the killing, and where the motive is a material question in issue, it is competent to introduce evidence of another offense which tends to prove motive. It was therefore not error to admit this evidence in this case.

It was also contended that it was error to permit the brother of the deceased to testify to the conversation in jail between Jim Cash and another party in which Cash made incriminating statements against himself and the other defendants. In a case of this kind it is competent to admit such statements because the establishment of appellant’s guilt may, and it probably did, embrace establishing the guilt of one of the other defendants who actually committed the crime, appellant being present, consenting, aiding, and abetting therein. It was permissible for the state therefore to establish the guilt of Warren Murphy as the person who actually did the killing, and the appellant’s and Cash’s guilt as accessories before the fact, or as joint actors, being present aiding and abetting therein. It was also insisted that it was error to not grant a continuance of the case because of the absence of the witness Houston for the defendant, whose testimony would have corroborated other witnesses as to the appellant’s presence at home at the time the killing is supposed to have taken place in the swamp. The record does not show whether the witness was served with process, and there was no effort to show in the motion for a new trial the facts by the affidavit of the said Houston, or by his testimony in court, wliat facts he really would testify to as required by the rules stated in Lamar v. State, 63 Miss. 265.

There being no reversible error, the judgment will be affirmed.

Affirmed.