Opinion
No. 33232.
October 10, 1938. Suggestion of Error Overruled October 24, 1938.
1. CRIMINAL LAW.
Defendant's son's confession that he held his father while latter's throat was cut by defendant was competent evidence against defendant in murder trial, where son's oral statements, reiterating substance of such confession in defendant's presence, were not denied and defendant approved correctness of statements in confession, thereby adopting it as her own.
2. HOMICIDE.
Testimony in wife's trial for murdering her husband as to improper relationship between defendant and another man was competent as tending to show motive for crime.
3. CRIMINAL LAW.
The county prosecuting attorney's argument to jury that state witness' testimony in murder trial that he heard deceased cry out, "turn me loose," was undisputed was not improper as comment on defendant's failure to testify.
4. CRIMINAL LAW.
Admission of state witness' testimony in murder trial as to substance of defendant's remarks that blood on floor at alleged place of homicide was defendant's blood was not erroneous because of witness' failure to state all that was said, where defendant was not denied right to bring out remainder of conversation.
APPEAL from the circuit court of Neshoba county; HON. D.M. ANDERSON, Judge.
W.T. Weir, of Philadelphia, for appellant.
In this case it is evident from all the testimony connected therewith that appellant's testimony or confession was not free and voluntary on her part. That she was in jail at Philadelphia and her son was in jail at Louisville and while she was in jail at Philadelphia the officers went to her son and managed to get some kind of confession or statement from him, and then carried her to him and confronted with him and by the officers made the alleged confession, and in the light of the following decisions we submit that it should have been excluded.
Fisher v. State, 145 Miss. 110, 110 So. 361; Ellis v. State, 65 Miss. 44, 3 So. 188; Williams v. State, 72 Miss. 117, 16 So. 296; Harvey v. State, 20 So. 837.
In this case the officers were allowed to introduce and testify to the alleged statements of William Church; these statements were made in Mrs. Church's absence, at first and after the alleged homicide had been committed.
Mitchell v. State, 156 So. 654, 171 Miss. 4; Brown v. State, 78 Miss. 637, 29 So. 519; Johnson v. State, 90 Miss. 317, 43 So. 435; Garner v. State, 124 Miss. 141, 83 So. 83; Patty v. State, 126 Miss. 94, 88 So. 498; Hale v. State, 72 Miss. 140, 16 So. 387; Morrow v. State, 57 Miss. 836.
Evidence of the bad character or reputation of the accused cannot be introduced by the prosecution as part of its case, nor in rebuttal, unless the defendant has introduced evidence to prove good character.
12 Cyc. 413; Dowling v. State, 5 S. M. 664; Overstreet v. State, 3 How. 328; 3 Camp Crowe, Encyc. of Evidence, page 12.
In the case at bar the witness Mrs. Putnam on behalf of the state was asked about the intimate relations of Mr. Tingle and appellant and we respectfully submit that it was error.
We further respectfully submit that the learned court should have ordered a mistrial of the case at least when the county prosecuting attorney in addressing the jury said and used the following words, to-wit: "George Church said `Turn me loose, turn me loose' and that is undisputed in this case."
Section 1530 of the Code of 1930 provides that the failure of the defendant to testify shall not be commented on by counsel.
12 Cyc. 576; Bunckley v. State, 77 Miss. 540, 27 So. 638; Eubanks v. State, 7 So. 462; Sanders v. State, 73 Miss. 444; Reddick v. State, 16 So. 490; Smith v. State, 87 Miss. 627, 40 So. 229; Hoff v. State, 83 Miss. 488.
We most respectfully submit that in this case at bar the prosecuting attorney in using the language was commenting on the failure of the defendant Maggie Church to testify. Objection was immediately made, and motion for a mistrial, and promptly overruled by the court, and no instruction was given the jury to disregard it nor were any amends made by the attorney who made the remarks, and it is embodied in a bill of exceptions and signed by the trial judge.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
In the absence of any action of the accused putting her stamp of approval upon the confession as made by her co-defendant, we would concede, of course, that such confession would have no place in this case. We think, however, that this confession is admissible here under the principle embodied in the cases of Miller v. State, 68 Miss. 221, 8 So. 273; Murphy v. State, 129 Miss. 634, 92 So. 694; Spivey v. State, 58 Miss. 858; Kendrick v. State, 55 Miss. 436. These cases, generally speaking, hold that where an accusation is made against one in such one's presence and is undenied, such accusation becomes admissible in evidence. There is more reason for the admission of this confession in view of appellant's approval of it, coupled with her tacit admission that she did cut her husband, but did not aim to kill him.
It is argued that the court improperly allowed the state to show that prior to the killing of her husband, the appellant was maintaining an intimate relationship with one of her neighbors, Oscar Tingle. Appellant takes the position that this evidence was used only to embarrass her case with the jury and refers to that line of cases holding that it was improper for the state to show the bad reputation of the appellant until she had put her reputation in issue. If this were the only reason for which the presence of this testimony in the case might be accounted, then we think perhaps the appellant's contention would be maintainable. However, we think that this character of testimony was admissible in this case as going to show a motive on the part of appellant to rid herself of her husband.
Sauer v. State, 166 Miss. 517, 144 So. 225; Bateman v. State, 64 Miss. 233, 1 So. 172; Mooreman v. State, 109 Miss. 848, 69 So. 1000; Ouidas v. State, 78 Miss. 622, 29 So. 525.
We submit that the argument was neither directly nor indirectly a comment on the failure of the accused to testify.
Winters v. State, 142 Miss. 71, 107 So. 281; Baird v. State, 146 Miss. 547, 112 So. 705; Johnson v. State, 109 Miss. 622, 68 So. 917.
This is an appeal from the Circuit Court of Neshoba County, wherein appellant, Mrs. Maggie Church, was tried for the murder of her husband, George Church, and was convicted of manslaughter and sentenced to serve a term of ten years in the penitentiary. Mrs. Church was jointly indicted with her son, a minor, for this crime, and he was thereafter sent to the Mississippi Industrial and Training School at Columbia, Mississippi. On a former trial, the appellant was convicted of murder and her case was appealed to this Court. Whereupon, the cause was reversed for a new trial, the decision being reported in 179 Miss. 440, 176 So. 162.
George Church was found dead on his front porch by some of his neighbors on the morning of the 1st day of May, 1936, with a deep knife wound extending from near the center of the back of his neck to almost around his throat, and which had severed the jugular vein. The sheriff and others, on going to the house, found that blood stained tracks made with bare feet lead from a large bloody spot on the floor in the front bedroom out through the front door and to the point where the body was found. That a sewing machine was opposite the foot of the bed in this front room, and the large quantity of blood spilled on the floor was between the foot of the bed and the sewing machine. An opened and blood stained razor was found on the machine. There was a pocket knife lying near one of his hands on the front porch. His wife and his seven children were not at home; she was found at the home of one Oscar Tingle, a near neighbor. It was the theory of the State that the appellant, with the assistance of her son, committed the homicide; that an altercation and fight occurred between them, growing out of jealousy on the part of the deceased because of the attentions of other men, especially Tingle. Upon being informed, at the home of Tingle, of the death of her husband, the appellant replied: "Yes, I knew he was going to kill himself for he said he was." She was then informed that there was a great deal of blood on the floor at their home. Her explanation was that they had been in a row and that her husband had chased her with a hickory stick nearly to the Tingle home and then turned and went back, but she then contended that she had shed the blood on the floor when he struck her with the stick before she ran from the house. A diligent search was made by several of the witnesses for the stick in question, but none was found about the premises or along the route to the Tingle home.
Thereupon, the appellant was placed in the jail at Philadelphia and her son in the jail at Louisville. On the next day, the officers obtained a written confession from the son, William Church, at Louisville, to the effect that the appellant and George Church had a difficulty on the night before on account of her alleged relationship with Tingle, and that his father had struck the appellant with a stick, and that he thereupon held his father while the appellant cut his throat. This written statement was approved on the next day by the appellant as being correct, with the exception that she denied that William held his father and that she cut him. A few days later, however, he recounted the facts of the killing in her presence, and after she had first denied that she had cut the deceased, William stated to her, "Mamma, you know you did, there is no use denying it," when she replied, "Yes, I cut him, but I did not aim to kill him." The written confession of William, as finally sanctioned and approved in its entirety by the appellant, was introduced against her by the State, along with her own independent and subsequent voluntary confession to the effect that `I didn't cut my husband to kill him, but I had to do something to protect my children and myself. He said he was going to kill all of us. I did it in self defense . . . etc. . . . The razor was all that I could get to keep him from killing us. I was protecting the children and myself. I didn't want to kill him, but I had to stop him or get killed."
The introduction of this confession of her son was objected to by the appellant as being incompetent against her. We think, however, that the confession was competent on two grounds: First, the substance of the written confession was reiterated orally by the son in the presence of his mother, the appellant, and the statements therein contained were not denied; second, the approval by the accused of the correctness of the statements embodied in the confession was equivalent to adopting it as her own confession. On the first ground, it was admissible under the principle announced in the cases of Kendrick v. State, 55 Miss. 436; Spivey v. State, 58 Miss. 858; Miller v. State, 68 Miss. 221, 8 So. 273; Murphy v. State, 129 Miss. 634, 92 So. 694.
It is next urged that the court erred in admitting the testimony as to an improper relationship between the appellant and Tingle. However, this testimony was competent as tending to show a motive for the crime. See Bateman v. State, 64 Miss. 233, 1 So. 172; Ouidas v. State, 78 Miss. 622, 29 So. 525; Mooreman v. State, 109 Miss. 848, 69 So. 1000; Sauer v. State, 166 Miss. 507, 517, 144 So. 225.
It is further assigned as error that the county prosecuting attorney, in his argument to the jury, referred to the fact that a witness for the State had testified that he heard the deceased cry out, "Turn me loose, turn me loose, turn me loose," and further said in his argument that "This is undisputed in the case." In the case of Drane v. State, 92 Miss. 180, 45 So. 149, the argument there objected to was "Nobody on earth has denied what Lawrence Latham said about this." The court said that there were other witnesses who could have denied Latham's story aside from the defendant, and that such argument was therefore not a comment on the failure of the accused to testify. Neither do we think that this reference to the testimony in the present case constituted a comment on the failure of the defendant to testify, under the rule announced in the following cases: Johnson v. State, 109 Miss. 622, 68 So. 917; Winters v. State, 142 Miss. 71, 107 So. 281; and Baird v. State, 146 Miss. 547, 112 So. 705.
Finally, it is argued that a witness for the State should not have been permitted to testify as to the substance of the remarks made by appellant to the effect that the blood on the floor was her blood, unless the witness could state all that was said. We concede the rule to be that when a part of a conversation is testified to by either party, the other is entitled to bring out the remainder of the conversation. See Brown v. State, 85 Miss. 511, 37 So. 957; Flowers v. State, 85 Miss. 591, 37 So. 814; and Collins v. State, 148 Miss. 250, 114 So. 480. The appellant was not denied this right.
We are of the opinion that no reversible error was committed on the trial in the court below, and that the case should be affirmed.
Affirmed.