Opinion
No. 34200.
June 10, 1940.
1. CRIMINAL LAW.
In absence of motion for new trial on ground that verdict of conviction is against overwhelming weight of evidence, case will not be reversed on such ground, where there is any substantial, reasonable and competent testimony to go to jury, tending to establish guilt of accused beyond reasonable doubt, and to exclusion of every other reasonable hypothesis.
2. CRIMINAL LAW.
Where substantial, reasonable and competent evidence of guilt of accused is introduced, jury can determine whether evidence is sufficient to show guilt to the degree that is required, when all the evidence is circumstantial.
3. HOMICIDE.
Circumstantial evidence held sufficient to go to jury on issue of whether defendant killed his mother whose body was found lying under bridge which was 75 yards from house in which defendant and mother lived, and was in plain view of place where defendant was picking cotton.
4. HOMICIDE.
In prosecution for murder of defendant's mother, witness' testimony that defendant told witness that defendant wanted some of the money which witness owed mother by the day of the killing, and that witness told defendant that mother must come for the money or sign order authorizing defendant to collect the money, was admissible to show motive, where day of killing was last day within which defendant could redeem his land from tax sale, and defendant was in default on alimony due his estranged wife, and defendant did not obtain written order from mother, and defendant told officers that mother had $35 or $40 in house before it was ransacked on day of killing.
5. CRIMINAL LAW.
In homicide prosecution, failure to make scientific tests as to whether blood on hatchet found in weed patch some 300 or 400 yards from place where body was found was human or animal blood, was not reversible error.
APPEAL from the circuit court of Tishomingo county; HON. CLAUDE F. CLAYTON, Judge.
J.S. Finch, of Booneville, and J.D. Finch, of Iuka, for appellant.
The court erred in overruling defendant's objection to the testimony of R.W. Carter.
In a vain attempt to show some kind of motive for which the jury would be justified in believing that this defendant murdered his mother, the state introduced the witness, R.W. Carter, Mayor of the Town of Iuka, Mississippi, a man of standing and influence, who doubtless commanded the respect of the jury who was trying this case, and through this witness showed that he, the witness, owed the deceased $18 and that the appellant tried to get $10 of this money, placing the time at and around the date the murder was committed.
We insist that the testimony of the witness, Carter, admitted under defendant's objection, when taken in the light of the inferences, implications, etc., that the jury would draw from such testimony, when taken in connection with the cross-examination of appellant by the district attorney, with reference to the testimony of the witness, Carter, and especially in view of the fact that the state did not attempt to produce any witness to contradict appellant that this was an ordinary and customary method of handling funds between him and his mother, was harmful, erroneous and reversible error.
The court erred in overruling defendant's objection to the introduction of the testimony of Lieutenant W.J. Rainey.
The witness, Lieutenant W.J. Rainey of the Memphis, Tennessee, Police Department, was produced by the state for the purpose of showing that a certain hatchet, identified in this record as Exhibit "1" to the testimony of Lieutenant Rainey, was examined by him on October 9, 1939, just after the murder here in question was committed on October 3rd, and that his examination of this hatchet revealed the presence of blood on each side of the blade but none on the ball thereof.
This testimony was objected to, first, because the hatchet was not shown to have been the instrument with which the murder was committed, and was not produced until several days after the murder. Second, for the further reason that the qualifying testimony of Lieutenant Rainey showed that he was able, capable, and competent to determine whether or not the blood found on the blade of the hatchet was human, animal or fowl, but that he did not test it to determine this question.
Hunter et al. v. State, 137 Miss. 276, 102 So. 288.
We earnestly urge that under this unusual case all of the testimony is entirely circumstantial, and throws but little or no light on who committed the murder here charged, where a son is charged with the murder of his mother, and no testimony to connect appellant with the commission of the crime, and having a competent person to make the test.
We submit that in view of the fact that Lieutenant Rainey qualified as an expert and could have made the test to determine whether it was human, animal, or fowl blood, and especially in view of the fact that he testified to the length of time the blood had been on the blade of the hatchet, fixing it at a time around the date this murder was committed, and the blood tests he made in the presence of the jury, he should not have been permitted to have testified, over the objection of defendant, to examining and finding blood on the hatchet without having made the test to determine whether the blood was human, animal, or fowl. Our position, we think, is amply sustained under the well reasoned principle that "whenever such test can be made, it ought to be done."
The court erred in overruling defendant's motion to exclude the evidence of the state and to peremptorily charge the jury to find defendant not guilty, at the conclusion of the state's testimony.
Viewing the entire testimony in this record most favorably to the state, it could not possibly do more than cast a weak suspicion on this appellant. The evidence merely reveals that appellant was one among several others who was in position to commit the crime. There is nothing in this record that connects appellant with the death of his mother; there is no proof whatever to connect him with the death or where and under what circumstances the blows that produced the death were inflicted. The circumstantial evidence in this case falls far short of meeting the burden required by law to sustain a conviction of murder.
It is a well settled and established principle of law that circumstantial evidence should be viewed with the highest degree of caution and vigilance.
Algheri v. State, 25 Miss. 584; Morris v. State, 25 Miss. 658.
This being a case on which the state depends wholly on circumstantial evidence for a conviction, the proof must be much stronger than the doctrine of proving guilt beyond a reasonable doubt, it requires proof so strong as to exclude every reasonable hypothesis other than that of guilt.
Hogan v. State, 127 Miss. 407, 90 So. 99; Taylor v. State, 108 Miss. 18, 66 So. 321; Caleb v. State, 39 Miss. 721; Hunter v. State, 137 Miss. 276, 102 So. 282-293; Perkins v. State, 23 So. 579; Cancelliere v. State, 23 So. 515; Harper v. State, 27 So. 621; Bright v. State, 28 So. 845; Smith v. State, 185 So. 193; Allen v. State, 88 Miss. 159, 40 So. 744; Harris v. State, 153 Miss. 1, 120 So. 206-208; Simmons v. State, 106 Miss. 732, 64 So. 721; Permenter v. State, 99 Miss. 453, 54 So. 949; Miller v. State, 99 Miss. 226, 54 So. 338; Irving v. State, 100 Miss. 208, 56 So. 377; John v. State, 24 Miss. 569.
Even if it could be said that the evidence in this record raises a suspicion that appellant committed the crime of murder, the law is such that it refuses to allow any person to be punished for a crime, however strong and well founded may be the suspicion. There must be proof.
Byrd v. City of Hazlehurst, 101 Miss. 57, 57 So. 360; Criminal Law, sec. 560; Hogan v. State, 90 So. 99, 127 Miss. 407.
The court erred in refusing to sustain defendant's motion at the conclusion of the testimony of the state and the defendant, to exclude the testimony of the state and direct the jury to find the defendant not guilty.
W.D. Conn, Jr., Assistant Attorney-General, for appellee.
This court has said in a number of cases that where the court is called on to pass upon the sufficiency of the evidence in determining whether the trial court erred in overruling a motion to exclude, or in refusing a requested peremptory instruction, it will consider most favorably all the evidence which tends to demonstrate the guilt of the accused. Not only will it assume that all of the evidence for the state is true, but the court will indulge in all inferences fairly deducible from such proved facts.
Redwine v. State, 149 Miss. 741, 115 So. 889; Pruitt v. State, 163 Miss. 235, 140 So. 683; Boutwell v. State, 165 Miss. 16, 143 So. 479.
It is not enough that this court, or the members of it, would have found differently were they called on to pass upon the facts as a trial jury. The only thing that this court might be concerned with so far as this record is concerned is whether the evidence was sufficient to go to the jury.
Jackson v. State, 105 Miss. 782, 63 So. 269.
The court has held in circumstantial evidence cases that any circumstance which logically tends to show motive for a homicide or an attempted homicide is admissible.
Sauer v. State, 166 Miss. 507, 144 So. 225.
As to the testimony of Lieutenant Rainey, when this witness was offered, the court required the jury to retire, and in its absence it was developed that the hatchet which had been found on appellant's premises had been turned over to him in order to determine whether blood was present or not. The witness testified that he was asked merely to determine whether blood was present on the hatchet but not to determine what kind of blood it was if blood should be found. He stated positively and unequivocally, after qualifying as an expert, that blood was present on the blade of the hatchet. He stated further that in order to determine what kind of blood it was it was necessary to subject it to certain pathological tests which could be performed in the laboratories at the University of Tennessee in Memphis, but that he did not have the facilities in his own laboratory for such determination. The defendant objected to this testimony going to the jury unless the witness had made further tests to determine whether the blood were human or from another animal. The court overruled this objection and allowed the witness to testify.
We do not take issue with the holding of the court in the case of Hunter v. State, 137 Miss. 276, 102 So. 282. Here, however, the witness was called upon, and no doubt paid, to determine whether blood appeared on the hatchet. The witness could not be blamed for doing no more than he was requested to do. The evidence which he gave appears to have been competent, and appellant's objection is that he did not go far enough. If the evidence were competent, then we do not see how the court could rule out competent evidence upon the ground that the witness was not able to testify to something else which he might have done had he been called upon to do so. The witness' testimony shows that he could have made the tests if he had the equipment, but that he did not have the equipment in his own laboratory and it would have been necessary for him to resort to other facilities to do so.
From a conviction of the crime of murder, and a sentence to serve for life in the state penitentiary, the appellant prosecutes this appeal.
Circumstantial evidence is relied on exclusively to connect the appellant with the murder of his mother, Alabama McRea.
There was no motion for a new trial on the ground that the verdict of conviction was against the overwhelming weight of the evidence, and hence, under the decision of this Court in the case of Justice v. State, 170 Miss. 96, 154 So. 265, the case will not be reversed on that ground, where there is any substantial, reasonable and competent testimony to go to the jury, tending to establish the guilt of the accused beyond a reasonable doubt, and to the exclusion of every other reasonable hypothesis. And when under such circumstances, such substantial, reasonable and competent evidence is introduced, it is within the province of the jury to determine whether the evidence is sufficient to show guilt to the degree that is required when all of the evidence is circumstantial.
The appellant, who was estranged from his wife, resided with his mother, approximately eighty years of age, in her home at the time of her death. She was found lying dead under a bridge about 75 yards from the house, near where the appellant was picking cotton that day in plain view of the bridge, at between 1 and 2 o'clock, P.M., by a searching party. It was testified that shortly after 12 o'clock that day some children crossed this bridge, and passed along near where the appellant was at work; returning in less than an hour, they observed for the first time blood both on the bridge and in the water beneath, but did not observe the body of the deceased; they also noticed lying on the bridge a black turban which the deceased had evidently worn on her head. The children at once reported the incident to their mother, who, however, did not go immediately to the scene, as she was under the impression that they had reference to a bridge farther away. Shortly after the children had made this discovery the appellant claims to have gone from the cotton field to the house over this bridge, with a sack of cotton; that finding the front door locked, he went to the rear of the house, and saw two strange white men leaving it; that he then found that the house had been ransacked, everything taken out of the dresser drawers, the beds upturned as though someone was in search of money or other valuables; that failing to find his mother about the premises, he went to Iuka, where he made the facts known to certain persons, including the sheriff; and that when these persons arrived at the scene a search was instituted. Thereupon the body of the deceased was found, and it is shown that she was struck several times on the head with what appears to have been a hatchet, since some of the wounds were made with a blunt instrument, and others were cuts.
From the testimony of the sheriff it appears that when the news reached the appellant, at the house, that his mother had been found down at the bridge, and that she was all right, he then insisted that she had been injured. He denied that there had been a hatchet about the place, but was contradicted on that point by a small boy who likewise lived in the home, but who was absent on the day of the killing. A hatchet was found a few days later in a weed patch some three or four hundred yards from the bridge, but which the little boy claims to have seen under a bush not far from the bridge a week or two before the killing.
The appellant further claimed that the two strange men heretofore referred to came to the house about 9 o'clock that morning to get something to eat, and it appears that he mentioned the incident to a negro woman living nearby at about 11 o'clock that day, which was evidently before the killing occurred. It is the theory of the defense that these two men may have been the murderers.
Thus the two theories were presented to the jury under proper instructions; and we are of the opinion that under all the facts and circumstances the evidence was sufficient to go to the jury on the issue of whether or not the appellant committed the crime.
It was also shown that an axe was found in the house, and that the front door had been considerably damaged from the inside with some such instrument, notwithstanding that the key to this locked door was found in the lock on the inside; and there were other circumstances to warrant the jury in finding that the condition of things in the house disclosed an arranged scene designed to create the impression that the strange men had ransacked the house, a condition which they would have had no reason or motive to create.
A few days before the killing the appellant had gone to a white man in Iuka who was indebted to the deceased in the sum of $18, and wanted to get $10 of the amount, stating that he had to have it by the next Tuesday (the day of the killing). He was told by this person either to have his mother come for the money, or to bring an order from her. Tuesday was the last day within which he could redeem from a tax sale a small tract of land which he owned, and he was also in default on alimony due his estranged wife. Objection was interposed to the testimony given by the white man at Iuka, and its admission was assigned as error. We think that the circumstance was sufficient to show motive, in view of the fact that the appellant told the officers at first that he thought his mother had $35 or $40 at the house before it was ransacked; and so far as the record discloses, he did not obtain the written order from her for the $10.
Finally, it is suggested that certain testimony in regard to the hatchet's having some blood on the blade should not have been admitted in evidence, for the reason that it was not shown to have been human blood. The case of Hunter et al. v. State, 137 Miss. 276, 102 So. 282, 288, is cited in support of this contention, wherein the Court said: "The state is not compelled in all cases, to make a test scientifically to determine whether the bloodstained garments are stained with human blood or animal blood. Whenever such test can be made, it ought to be done, . . ." In that case, however, the Court held that ordinarily the failure to make the scientific test as to whether blood is that of an animal or of a human being is not reversible error. We do not think that such failure constitutes reversible error in the case at bar.
No other alleged errors are assigned, and we do not feel justified in disturbing the verdict of conviction under all the facts and circumstances of this case.
Affirmed.