Walton v. State

39 So. 689 | Miss. | 1905

Calhoon, J.,

delivered the opinion of the court.

Appellant was indicted, tried, and convicted on the monstrous and horrible charge of the murder of his own wife. She was shot in her bedroom about 4 o’clock in the afternoon, and died about midnight of the same day. From the character of the wound it must have instantly paralyzed her. She must have been in an erect posture when the shot was delivered, and she fell back across her bed and near the foot of it. The fatal bullet entered her left breast, went through her body, and was found in the wall over the foot of the bed across which she was found just after the shooting. Its range seems to have been slightly upward; and, manifestly, she could not have been shot while sitting. The room opened on one side on a hall, and on another side on a gallery. It being a warm day, the doors and windows were standing open. The house was near a traveled road. Quickly after the explosion, the appellant called to the children, near the house, that their mother had shot herself, and to come at once, and sent one of them, a boy, for a doctor. To the girl children who came in, she said she could not recover; that she had killed herself, but that “Jim [the appellant] had driven her to it.” This statement she made -several times afterwards to others as they came in. Subsequently, to her doctor and to others, she said that appellant had killed her; and this she persisted in. Two witnesses testified to threats made by him to her, and violent conduct toward her on the day of the killing, the credibility of which evidence is criticised by counsel, for reasons said to be inherent in it — because of contradictions, etc. — which we do not feel called on to consider, except to mention the fact.

Of course, the only defense set up is that it was suicide, and not murder. . The effort was to show that the appellant was not in the room, but in the hall, when the pistol fired. There was seasonably presented at the first term an application for continuance because of the absence of certain witnesses, among whom was one Missouri Franklin. By her it was expected to be shown, among other things, that she was very near and in plain view of the house; heard the shot; saw appellant in or near the hall; then saw him, after the shot, enter the room and come out of it. This much was certainly competent. Nothing could be more vital to the defense than this, and it was error to overrule the application, which error was not cured by the announcement of the district attorney that he was willing to admit that the witness, if present, would so testify. At the first term the defendant was entitled to the continuance, where, as in this case, it appears that the witness could probably be had at the next term. Code 1892, § 1425; Stewart v. State, 50 Miss., 587; Scott v. State, 80 Miss., 197 (31 South. Rep., 710); Watson v. State, 81 Miss., 700 (33 South Rep., 491); Montgomery v. State, 85 Miss., 330 (37 South. Rep., 835); Caldwell v. State, 85 Miss., 383 (37 South. Rep., 816).

It was, of course, fatal error to refuse to the defense the right to cross-examine the children of the deceased by her former marriage on the whole case. Two of them, Mary and Ella, were the first at the mother’s bedside after the shot. They were witnesses summoned by the state, but reserved for rebuttal; were examined by the state, and turned over to the defense; and the court refused to permit cross-examination of these material witnesses as to the real merits of the controversy, because not in surrebuttai, and this, notwithstanding the state had been allowed to elicit from them testimony in chief. The defense was not even allowed to weaken the evidence by inquiring whether the witness Mary testified at’ the committing trial. This ruling is violative of'the law which has been settled in this state for fifty years. Mask v. State, 32 Miss., 405. The object is to ascertain the truth, and the cross-examination should be permitted to be “coextensive with the issue,” and this “on the clearest principles of reason and justice.” In order to ascertain whether there is guilt, the same fair trial is the-equal right of all men charged with crime.

In the motion for a new trial, certain remarks are recited as having been made in argument to the jury by associate counsel for the prosecution, and others by the district attorney. Of course, such remarks would necessitate reversal of any case where there was not a confession of guilt; but we cannot -consider them, because there appears no evidence that they were in fact made.

The defense should have been allowed to cross-examine Mr. Hull as to whether he had conferred with Mr. Howell about the case.'

It was error to grant to the state the instruction marked “No. 10.” The commencement of it assumes as a fact for the state the only controverted point. It begins thus: “That while no living eyes, save those of the defendant and the slain woman, may have looked upn the tragedy which ended Mrs. Walton’s life, yet,” etc.

The statements made by Dr. J ones to the dying woman, and her opinion as to why appellant shot her, were not competent. It is enough to show by her dying declaration who committed the deed. Lipscomb’s case, 75 Miss., 559 (23 South. Rep., 210, 230).

Reversed and remanded.