Rich v. State, No. 21534

No. 21534 | Miss. | Oct 15, 1920

Holden, J.,

delivered the opinion of the court.

The appellant, Sam Rich, was jointly indicted with Ilardee Dykes, Harvey Dykes, Bruce Edwards, Daniel Edwards, Bud Plumer, and Ben Jeff coats, for the murder of B. M. Milstead. A severance was granted, Rich was found guilty, and sentenced to imprisonment for life, ,from which judgment he appeals.

The story of the tragedy from beginning to end is so lengthy that we shall not undertake to state it in detail, but will only mention the facts of the case necessary to understand the decision. The killing took place about one mile north of Richton on the public road at first dark. The deceased, Milstead, was marshal of the town of Richton. Virginius Walley lived out a few miles north of Richton on the public road mentioned. The appellant, Sam Rich, and the Dykes brothers and Bruce Edwards also lived out on and traveled this public road. All of the parties .mentioned who lived in the country went to Richton in the afternoon of the day of the tragedy. They drove their respective wagons there for the purpose of loading them with oats and fertilizer to be carried back to their homes, and all the parties were there on peaceful and legitimate missions. Some time .after all of them had arrived at Rich-ton a difficulty started between Hardee Dykes and Virginius Walley in which Walley was considerably worsted. Harvey Dykes came up and took a hand in this difficulty against Walley, when Freeman, a friend and employee of Walley, interfered for Walley, whereupon he was struck by Daniel Edwards. The fight then became general. Appellant Rich took part with Dykes in assaulting Walley while he was scuffling on the ground. In the meantime the appellant, Sam Rich, when requested by Dykes to do so, went to Walley’s automobile and took Walley’s pistol, ejected the shells and afterwards turned it over by request to the said city marshal, Milstead. While the fight was going on, Milstead, the marshal, took a hand in it, and incidentally clubbed á bystander with Walley’s pistol, and then Walley cursed the appellant, Rich, whereupon Rich knocked him down with his fist.

Some of the parties were considerably bruised in the affray. Virginius Walley retired to a doctor’s office for treatment, and, after his wounds were dressed, Milstead, the marshal took him in a car to Walley’s home a few miles north of Richton on the public road heretofore mentioned.

After Walley left for home the Dykes brothers, Bruce Edwards, and the appellant, Sam Rich, started with their loaded wagons homeAvard on the said public road. Sam Rich was driving a pair of home-raised horses, and his wagon Avas loaded with seven hundred pounds of fertilizer, and he was'driving ahead of the Dykes’ wagon, which was following loaded with oats. After they had started from toAvn Bruce Edwards and Harvey Dykes each secured a single barre] shotgun and rode on the front Avagon Avith the appellant Rich, who Avas driving, the rear Avagon being heavily loaded.

When they had gone about one mile on the public road they discovered an automobile ahead coming towards them in the public road. They pulled to the right side of the road and stopped. When the automobile reached a point nearly opposite the wagon of the appellant, Rich, it stopped, a shot was fired from the Rich wagon, killing Mil-stead, who was sitting on the right-hand side of the automobile, Walley being on the left side of the car driving, and Mrs. Walley sitting in the rear seat. A pistol dropped from the right hand of the deceased onto the running board of the car. Walley jumped from the car with his pistol, and ran after the parties on the wagons, but his pistol failed to work on account of its defective condition, due to its being used as a club in the previous fight at Richton.

Virginius Walley and his wife, who had unexpectedly decided to bring Milstead back to Richton, testified that the appellant, Sam Rich, fired the shot that killed Mil-stead. The appellant and all of the other witnesses present testified that the shot was not fired by the appellant, Sam Rich, but that Bruce Edwards and Harvey 'Dykes fired the shot that killed Milstead. Other testimony in the case showed that parties along the public road immediately previous to the killing had seen Bruce Edwards and Harvey Dykes on the front wagon, each armed with a shotgun, and that the appellant, Sam Rich, was unarmed and was driving the team, and was still driving his frightened team after the shots.

There was considerable testimony introduced by the state over the objection of the appellant, giving the details of the previous fights that took place in Richton. The state was also permitted, over the objection of the appellant, to show what was said in conversations between the Dykes brothers and other parties at Richton with reference to threats that the Dykes brothers had made against Walley and the deceased, Milstead. These conversations by the Dykes brothers were out of the presence of the appellant, Rich, and with which he had no connection or knowledge. There is some testimony showing that Harvey Dykes told Sam Rich about getting the shotgun he carried on the wagon, and it is also shown that the appellant drove the wagon with the two men on it armed with shotguns; also that Rich was present and participated in the difficulties in Richton.

Amongst the instructions, asked by the state the following instruction on conspiracy was granted, to-wit:

“The court instructs the jury for the state that, if you believe from the evidence, in this case beyond all reasonable doubt that the defendant, Sam Rich, and others confederated and agreed together to intercept Milstead and Walley and to shoot and kill them, or one of them; and if you believe beyond all reasonable doubt in pursuit of such conspiracy, if any, they, or either of them, armed themselves; and if you further believe beyond all reasonable doubt that they did intercept Milstead and Walley, and at a time when they were in no danger, either real or apparent, of losing their lives, or suffering great bodily harm at the hands of Milstead or Walley, one of them deliberately, wilfully, feloniously, and of his malice aforethought shot and killed Milstead; and at the time, if you further believe beyond a reasonable doubt that Sam Rich was present for the purpose of aiding, if necessary, in the killing — then in such case under the law he would be guilty of murder, even though he did not fire the shot that killed Milstead.”

Complaint is made by the appellant that the court erred in permitting the state to show the details of the general fights that took place in Richton, and also in allowing the state to introduce in evidence the conversations between Dykes and others at Richton not in the presence of the appellant, and that it was fatal error of the court to grant the instruction on conspiracy because the testimony in the case is insufficient to support it.

As to the first two points presented we deem it sufficient to say that the court was in error in admitting the proof of the details of the difficulties between the parties at Richton, and the conversations out of the presence of Rich in which the Dykes brother made threats, before conspiracy was established. The rule governing the admissibility of evidence regarding such matters is well settled, and need's no discussion here. However, we consider it unnecessary to say whether or not these errors are reversible, because there must be a reversal upon the other point, and the former questions may not arise again on a second trial. 6 Am. & Eng. 866; Thompson v. State, 84 Miss., 758" court="Miss." date_filed="1904-03-15" href="https://app.midpage.ai/document/thompson-v-state-7989220?utm_source=webapp" opinion_id="7989220">84 Miss., 758, 36 So. 389; Brown v. State, 88 Miss. 166" court="Miss." date_filed="1906-04-15" href="https://app.midpage.ai/document/brown-v-state-7989572?utm_source=webapp" opinion_id="7989572">88 Miss. 166, 40 So. 737.

We are convinced it was fatal error to grant the conspiracy instruction to the state, for the reason that the testimony in the record is insufficient to support it, and we think the rights of the appellant were substantially prejudiced by the instruction.

It will be observed that the jury is told that, even though appellalnt did not fire the shot that killed Mil-stead, yet they should convict if they believe that Sam Rich and others confederated and agreed together to intercept and kill Milstead and Walley. It is clear to us that if the testimony of Walley and his wife is eliminated, as the instruction authorizes, then we have no substantial proof in the record that the appellant conspired or aided and abetted in the killing. On the other hand, the testimony of all of the several other eyewitnesses shows that Sam Rich took no part in the killing, either by agreement or otherwise; it appearing that the other parties confessed the killing and pleaded guilty.

The appellant, Sam Rich, went to Richton, and was returning home that day on a perfectly lawful mission, and while he took part in one of the fights there, and was present at the others, yet he was unarmed,, and at no time made any demonstration to kill either Walley or Mil-stead, which he could have done when he had Walley’s pistol, but instead of doing so he unloaded the pistol and turned it over to the law officer. It is true that he drove his team back home with his wagon loaded with fertilizer, and transported on the wagon the two armed men, Bruce Edwards and ITarvey Dykes, but this fact' does not establish, and there is nothing in the record to show, that the parties had agreed to kill Walley or Milstead, or that they even expected or knew that Walley and Milstead were coming back to Richton on that road. The record shows that .when Walley left Richton to go to his home in a bruised condition it was presumed by all that he would stay at home and not return that afternoon. But contrary to reasonable expectations Walley and his wife got in the car to bring Milstead, the marshal, back to Richton, and thus it was that the parties met unexpectedly upon the public road and the deplorable tragedy took place. Rich had had no previous difficulty with Milstead. As to whether or not Edwards and Dykes were justified in shooting Milstead, who it appears had drawn his revolver in the car, is not here material for the reason that the appellant, Rich, claims that he did not shoot at all, and at all event this was for the jury.

Therefore we think if the testimony of Walley and his wife, which showed that appellant, Rich, fired the shot that killed Milstead, is disregarded, as authorized by the conspiracy instruction, a verdict of guilty on the theory of conspiracy could not be allowed to stand against Rich because the proof is not sufficient to support it. Harper v. State, 83 Miss. 402" court="Miss." date_filed="1903-10-15" href="https://app.midpage.ai/document/harper-v-state-7989081?utm_source=webapp" opinion_id="7989081">83 Miss. 402, 35 So. 572.

The judgment of the lower court is reversed, and the case remanded.

Reversed and remanded.