Opinion
No. 32783.
October 25, 1937.
1. HOMICIDE.
Evidence supported conviction of manslaughter.
2. WITNESSES.
The test as to whether matter inquired of on cross-examination of accused was collateral within rule prohibiting contradiction of witness, in respect of collateral matter, is whether state would have been permitted to prove matter as a part of its case, and, if state would have been so permitted, evidence was competent.
3. HOMICIDE.
In prosecution for murder, wherein accused claimed self-defense and evidence as to whether accused or deceased was aggressor was conflicting, the state of mind of each party toward the other was a material inquiry, and evidence pertaining thereto was relevant unless incompetent on some other ground.
4. HOMICIDE.
In prosecution for murder, wherein accused claimed self-defense, evidence of threats made by deceased against accused was admissible.
5. WITNESSES.
In prosecution for murder, wherein accused claimed self-defense and testified that deceased threatened his life several days before killing prosecution could contradict denial of accused on cross-examination that, one day before killing, accused stated he was going to get deceased to cut his hair, and denial that accused went to deceased's home.
APPEAL from the circuit court of Alcorn county. HON. THOS. H. JOHNSTON, Judge.
Orma R. Smith, of Corinth, for appellant.
The law in this state with reference to the contradiction or impeachment of a witness is well settled and thoroughly recognized that it is not competent or permissible to contradict or impeach a witness on an immaterial or collateral matter.
Wilkinson v. City of Jackson, 170 So. 901; Cofer v. State, 130 So. 511, 158 Miss. 493; Walker v. State, 119 So. 796, 151 Miss. 862; Ware v. State, 110 So. 503, 145 Miss. 247; Williams v. State, 19 So. 826, 73 Miss. 820; Magness v. State, 63 So. 352, 106 Miss. 195; Garner v. State, 76 Miss. 520, 25 So. 363; Jefferies v. State, 77 Miss. 760, 28 So. 948; Bell v. State, 38 So. 795.
It is well settled and thoroughly recognized in this state that the test by which it shall be determined whether a matter inquired of in cross-examination is irrelevant, immaterial, or collateral is this: would the cross-examining party be entitled to prove it as part of his case tending to establish his plea? If not, then it is irrelevant, immaterial, and collateral. What is improper to be proven directly cannot be proven indirectly.
Cofer v. State, 130 So. 511, 158 Miss. 493; Walker v. State, 119 So. 796, 151 Miss. 862; Barnes v. State, 119 So. 172, 152 Miss. 250; Ware v. State, 110 So. 503, 145 Miss. 247; Powers v. State, 151 So. 730, 168 Miss. 541; Williams v. State, 19 So. 826, 73 Miss. 820; Magness v. State, 63 So. 352, 106 Miss. 195; Garner v. State, 76 Miss. 520, 25 So. 363; Jefferies v. State, 77 Miss. 760, 28 So. 948; Bell v. State, 38 So. 795.
When evidence has been improperly admitted, which may have materially operated in producing a conviction, the appellant has been prejudiced thereby and same constitutes a harmful error and a prejudicial one and the case should be reversed and remanded.
Lynes v. State, 36 Miss. 616; Jefferies v. State, 28 So. 948, 77 Miss. 757; Cooper v. State, 49 So. 178, 94 Miss. 480.
Where motion for a new trial is made by the appellant, the grounds of which is that the verdict of the jury is against the overwhelming weight and great preponderance of the testimony in the case, it is the duty of the judge of the trial court to review all of the evidence and if the verdict of the jury is against the overwhelming weight or clearly against the great preponderance of the evidence, it is the duty of the judge to grant a new trial. This rule is applicable to both civil and criminal cases.
M. O.R.R. Co. v. Johnson, 141 So. 581, 165 Miss. 397 ; Justice v. State, 154 So. 265, 170 Miss. 96; Harmon v. State, 142 So. 473, 167 Miss. 527.
W.D. Conn, Jr., Assistant Attorney General, for the state.
The character of the killing is disputed. Under defendant's testimony, the jury might have found the killing to have been justifiable. The question of who the aggressor was was for the jury on the evidence. When this question is up for decision the state of mind of each of the participants is a material inquiry. As held by this court in Clark v. State, 123 Miss. 147, 85 So. 188, where the aggressor is in issue, the state of mind of each of the parties toward the other is a material inquiry, and any evidence pertaining thereto is relevant, and, unless incompetent on some other ground, should be admitted. See, also, Muse v. State, 158 Miss. 449, 130 So. 693, which likewise holds that the state of mind, under such circumstances, is a relevant and material inquiry. To the same effect is the recent case of Hendrix v. State, 172 Miss. 589, 161 So. 151.
Testimony to the effect that after all the threats testified about have been made, and on the very afternoon before the homicide, the appellant was looking for deceased for the purpose of getting a hair cut certainly shows that the state of mind of the parties was not as pictured by the defendant and his witnesses. One does not go to his deadly enemy for barber service.
Appellant's actions on the afternoon before speak far louder than his words in arriving at the mental attitude of the parties toward each other — and since anything pertaining thereto is a material inquiry, we submit that the appellant was not contradicted on any collateral matter, but upon one material and relevant, and consequently there should be no reversal of the conviction on this ground. There was no error at all.
To warrant this court in reversing this conviction for an insufficiency of the evidence, the state's case would have to be terribly weak and appellant's mighty strong. As said in Thomas v. State, 129 Miss. 332, 92 So. 225, and followed in Hinton v. State, 175 Miss. 308, 166 So. 762, this court will not disturb a verdict based on competent evidence, unless the testimony is so unreasonable and so highly improbable that the truth was so extremely doubtful as to be repulsive to the reasoning of the ordinary mind.
Dean v. State, 173 Miss. 254, 160 So. 584.
Frankly, I can see no good reason for the application of the above set out rule to those facts. On them the jury, acting within its rights in the consideration of testimony, could have properly found appellant guilty of murder. Certainly, on the evidence the homicide was of no less degree than manslaughter, the verdict returned by the jury.
Argued orally by Orma R. Smith, for appellant, and by W.D. Conn, Jr., for the state.
The appellant has been three times convicted on an indictment charging him with murder, and this is the third appearance of the case in this court. 163 So. 390; 177 Miss. 91, 170 So. 148. The conviction here appealed from is for manslaughter.
The appellant's complaints are: (1) The evidence is insufficient to support the verdict; (2) the court wrongfully admitted testimony to be hereinafter set forth.
The first of these contentions may be summarily disposed of; for, leaving on one side the fact that three juries have said that the evidence supports a conviction, the evidence in this record clearly presents a question for the determination of the jury.
The appellant claims to have killed the deceased in order to defend himself from a deadly attack being then made on him by the deceased. The evidence as to who was the aggressor in the difficulty, and as to the appellant's claimed right of self-defense, is in sharp conflict. The appellant, when testifying, said that, "Back some quite a bit (evidently several days) before we got into it" (the difficulty in which the deceased was killed), the deceased, without provocation, slapped him and threatened to kill him, and made a similar threat a short time thereafter.
In his cross-examination the following questions and answers appear:
"Q. Isn't it a fact that the day before this happened (the killing of the deceased) you went up to get Bynum Burns (the deceased) at his own house to cut your hair? A. I did not.
"Q. And didn't you meet Ernest Barnes at the Dixon Creek Bridge a hundred fifty or two hundred yards from his house and tell him you were going to get Bynum (the deceased) to cut your hair? A. No, sir.
"Q. And didn't Ernest tell you he didn't think Bynum was at home, he thought he had gone to Mr. Wooten's with a load of corn? A. He didn't tell me anything about Bynum, I didn't ask him.
"Q. Did you meet him there at the Dixon bridge? A. No, sir.
"Q. Did you go to Bynum's house? A. No, sir.
"Q. Then you didn't meet Ernest at the bridge? A. I could have been at the bridge but didn't go to Bynum's house.
"Q. And didn't you go to Bynum's house and when you found there wasn't anybody there turn and walk away? A. I didn't go to Bynum Burns' house."
The State was permitted in rebuttal, over the appellant's objection, to introduce evidence that the appellant did tell Barnes at the Dixon creek bridge that he was going to get the deceased to cut his hair, and that he then went to the home of the deceased and knocked on the steps thereat, but no one answered. The appellant says that whether he made the statement to Barnes and thereafter went to the home of the deceased were collateral and immaterial matters, and that the State was bound by his denial thereof and should not have been permitted to contradict his testimony relative thereto.
The test as to whether the matter here inquired of on the cross-examination of the appellant is collateral within the rule prohibiting contradiction thereof is whether the State would have been permitted to prove it as a part of its case. If it would have been so permitted, the evidence was competent. Williams v. State, 73 Miss. 820, 19 So. 826. The evidence being in conflict as to who was here the aggressor, the state of mind of the appellant and of the deceased toward the other "was a material inquiry, and any evidence pertaining thereto was relevant," and is admissible unless incompetent on some other ground. Clark v. State, 123 Miss. 147, 85 So. 188, 190. The evidence of threats made by the deceased against the appellant was admissible to show the state of mind of the deceased toward the appellant, and also to reinforce the appellant's claim that when he killed the deceased he believed that the deceased was then about to kill him.
If the appellant said and did the things here under consideration, the fact that he so said and did would tend to contradict his testimony as to the threats which he says were made by the deceased; for it is hardly probable that he would have so said and done had these threats been, in fact, made. In addition, they tend to negative any belief on his part that the deceased made the threats, if he in fact did make them, with any intention of carrying them out, and, if the jury so believed, would negative his claim to have interpreted the acts of the deceased at the time he was killed, in the light of a previously formed intention by the deceased to kill him, the appellant. Jamison v. Illinois C. Railroad Co., 63 Miss. 33.
Affirmed.
McGehee, J., did not participate in the decision of this case.