48 So. 13 | Miss. | 1909
delivered tbe opinion, of tbe court.
'Ibis case is a very close one on tbe facts, and is not, tbetreu fore, a case in wbicb we can say tbat any serious error is not ■reversible. Tbe first instruction for tbe state is in tbe following words: “Tbe court instructs tbe jury, for tbe state, tbat if you believe from tbe evidence beyond a reasonable doubt tbat Will Tate met Bunk Dixon in tbe public road,- and tbat Will Tate, with bis band in bis pocket and on bis pistol, said to Bunk Dixon, ‘Can you play tbe same game you played last night V or words to tbat effect, intending by tbe use of tbe remark to invite and provoke a difficulty with deadly weapons then and there in tbe public road, at a time tbat Bunk Dixon was doing nothing tbat would cause any apprehension of danger to Tate, and tbat tbe language so used did then and there invite and bring on tbe difficulty, in which deadly weapons were used in the public "highway, and in wbicb Bunk Dixon lost bis life, then Will T'ate is guilty of murder; and this is true, even though tbe jury may believe from tbe evidence tbat Bunk Dixon fired tbe first shot.” Tbe language of this instruction, “with bis band in bis pocket •and on bis pistol,” is erroneous, for tbe obvious reason tbat there is no evidence whatever in tbe-record to show tbat tbe defendant bad bis hand in bis pocket on bis pistol. But we would not reverse for this inaccuracy alone, since it does not seem to be very material whether be bad. bis band on bis pistol in bis pocket, or whether be bad bis band on bis pistol in bis bosom. But tbe fatal vice in tbe instruction is tbat it effectually cuts off tbe right of self-defense. We have over and over again warned ■circuit judges against giving this sort of charge, and wherever it is given and a conviction results tbe judgment will always be reversed, except where this court can say, looking over tbe 'completed record, with confidence, tbat tbe defendant’s guilt is ■so overwhelmingly manifest tbat no other verdict than that of .guilt could probably be rendered. We cannot say this in this «case, and this charge is, for tbat reason, reversible error. ,
In the course of the trial it was shown by tbe state, by tbe
We have read carefully all the authorities cited on this proposition, and we are all thoroughly satisfied that the conditions making these statements competent testimony were not met by
In Wigmore on Evidence, vol. 2, p. 1257, it is said: “On the other hand, if under the circumstances it appears that the party was in fact physically disabled from answering, his silence, of course, signifies nothing, and the statement is inadmissible. So, too, if the party had plainly no motive for responding his silence permits no inference; and this is often the ease where the statement is addressed to another person, and not to the party himself.” In Kelly v. People, 55 N. Y. 565, 14 Am. Rep. 342, it is said: “(1) The declaration must be pertinent to the occasion. (2) It must be made in the presence and hearing of the parties intei*ested, and under circumstances which render a contradiction or explanation reasonable, if not true. (3) It must be about matters the truth of which was known to the accused. (4) A reply would have been natural and proper if the statements were false.”
In the case of People v. Koerner, 154 N. Y. 355, 48 N. E. 730, the case was this: The defendant was indicted for murder and convicted; and it appears that the deceased was shot by a •pistol in the hands of the defendant in New York City, on Seventh avenue, between Thirteenth and Fourteenth streets. Defendant admitted the shooting, but defended on the ground that the shooting was accidental; that his purpose was to commit suicide^ which he attempted by placing the pistol to his head, when to prevent it the girl grasped the pistol and it was accidentally discharged, causing her death. At the time of the killing he was not mentally responsible for his actions. It appears from the evidence that the girl was shot three times, that the relations existing between her and the defendant were of an affectionate kind, that the defendant had asked her to marry him, and that an engagement .existed between them, but the parents were opposed thereto. During the progress of the trial a Dr. Harrison was permitted to testify that after the shooting
And in the case of State v. Epstein, 25 R. I. 131, 55 Atl. 204, the facts were as follows:-July 26, 1901, the defendant, in company with Abraham Zarinsky, the person killed, went to the attic in which Zarinsky had his bedroom. Some troubles oc
Greenleaf, in his work on Evidence (volume 1, par. 199), says: “Nothing can be more dangerous than this kind of evidence. It should always be received with caution, and never received at all unless the evidence is a direct declaration of that kind which naturally calls for contradiction.” Ohief Justice Shaw said, in Larry v. Sherburne, 2 Allen (Mass.) 34; “It is true there are eases where the party may be affected in his rights by proof of a silent acquiescence in the verbal statement of others; but such evidence is always to be received, and applied, with great caution, especially where it appears, as in this case, that the statements were made not by a party to the conversation, but by a stranger.”
It must be perfectly clear, from these citations, as applied to the facts of this case, that the testimony fell far short of showing the conditions under which this testimony would be admissible, and its admission was fatal error. We notice at this time no other assignments of error than those passed on specifically.
Reversed and remanded.