Opinion
No. 26938.
April 23, 1928.
1. HOMICIDE. Where state depends partly on circumstantial evidence from which corpus delicti must be established, condition of deceased's body, physical surroundings, instruments with which crime was committed, and others tending to show motive of robbery, are admissible.
Where a criminal prosecution depends, in part, upon circumstantial evidence, and where the corpus delicti must be established largely by circumstantial evidence, the condition of the body of the deceased, and its physical surroundings, the instruments with which the crime was committed, and others, tending to show the motive of robbery, may be received in evidence, although such evidence does not directly connect the defendant with the crime.
2. CRIMINAL LAW. Evidence that defendant was found by using bloodhounds is admissible on proof that hounds were of pure blood, properly trained, and reliable; breeding of bloodhounds used to trace defendant may be shown by oral evidence; weight of testimony as to breeding of bloodhounds used to trace defendant is for jury.
Bloodhound evidence, that is to say, evidence of the fact that bloodhounds were used in trailing a track from the scene of the crime to where the defendant was found, may be received in evidence, where preliminary proof shows that the hounds were pure blood and properly trained, and were reliable upon the trail. The breeding of the dogs may be shown by oral evidence in such case, and, when so produced, its weight and worth are for the determination of the jury.
3. CRIMINAL LAW. To base error on refusal to permit questions to prosecuting witness on cross-examination, ruling must be obtained; to base error on refusal to permit questions to prosecuting witness on cross-examination, exception must be taken to adverse ruling.
Where questions are asked the prosecuting witness on cross-examination, the defendant must insist on a ruling, or it will be deemed waived; and, if ruling is adverse, must take an exception.
4. CRIMINAL LAW. Voluntary confessions are admissible in criminal prosecution; in criminal prosecution, acts of persons other than one to whom defendant confessed having no relation thereto are not admissible to show ill usage of defendant preceding confession.
Confessions voluntarily made are receivable in evidence against the person confessing, in a prosecution for crime, and the acts of other persons than the one to whom the confession is made, not directed to the obtaining of the confession, and having no relation to the confession, are not admissible to show that the defendant had been ill used the night preceding the confession.
5. HOMICIDE. Where defendant, tried for murder, obtained change of venue, evidence that codefendant, who was separately tried and acquitted, had been lynched, held inadmissible.
In a trial for murder, where several persons are jointly indicted, and where one had previously been tried, acquitted, and lynched immediately after the acquittal, it is not competent for the defendant to prove that fact in his trial, where he has obtained a change of venue, and the trial is in another county, and no showing of hostility or violence in such county is shown in the record.
6. HOMICIDE. Instruction that, if defendant and others conspired and attempted to commit robbery, and one struck fatal blow, all would be guilty of murder, held proper.
In a prosecution of a number of persons for a murder, where there is evidence of an agreement to rob a store, at which the killing occurred, it is proper for the court to instruct the jury that, if the defendant and others shown to be in the conspiracy, pursuant to such agreement, attempted to commit a robbery, and in such attempt one of them struck the fatal blow, all are guilty, although there was no actual intent to kill on the part of the defendant, and although he may not have struck the blow.
7. CRIMINAL LAW. Court instructing once as to applicable principle need not repeat such principle in other instructions.
The court, in instructing the jury as to the law of a case being tried, is only called upon to give the legal principle applicable one time, and, where the court has given that principle, it is not required to repeat it in other instructions, although such instructions may be technically correct.
8. CRIMINAL LAW. Refusal to instruct that, if there were two reasonable theories from evidence, one showing defendant guilty, and other not guilty, to acquit, held not error.
Where a court has given the law applicable to the circumstantial evidence, it is not error to refuse an instruction announcing that, if there arises from the facts in the case two reasonable theories by one of which the jury should find the defendant guilty, and by the other to find him not guilty, then it is the duty of the jury to give the defendant the benefit of every reasonable doubt, and adopt that theory consistent with the innocence of the defendant, even though the jury believe from the evidence that the theory of his guilt is supported by the better and stronger evidence. This instruction has been condemned in numerous decisions of this court. Runnels v. State, 96 Miss. 92, 50 So. 499, and other cases cited.
APPEAL from circuit court of Yazoo county; HON.W.H. POTTER, Judge.
Greek P. Rice, Jr., and Vincent J. Brocato, Jr., for appellant.
The court erred in permitting the state to introduce into evidence boots, rope, axe, hammer, safe-dial, and other appliances and devices identified by the witness, James Traynham, and offered and introduced as exhibits to his testimony. The exhibits to the testimony of James Traynham were inadmissible as evidence, for several reasons. These exhibits could have no possible place as facta probanda. They were assuredly not part of the res gestae, and these facts threw no light on the solution of the question as to who killed Grover C. Nicholas. The admission and refusal to exclude such testimony was moreover highly calculated and likely to incite the minds of the jury to passion and prejudice. The court presumably admitted the testimony under the theory that the prosecution had the right to show and exhibit circumstances and marks of violence. But clearly this was error for not only did the state fail at that time to connect the defendant with the crime, but failed utterly and entirely not only at that time but later, to connect the defendant with any crime whatsoever. These circumstances threw no light on the identity of the murderer of Grover C. Nicholas, and this is the true test of the relevancy and competency of such testimony. Harper v. State, 83 Miss. 402, 35 So. 572; Cumberland v. State, 110 Miss. 521, 70 So. 695. There can be no dispute as to its purpose, and the effect of such testimony is equally apparent. It was highly prejudicial, entirely erroneous, and constitutes reversible error in a cause based on suspicion and supposition. These instruments neither tended to prove nor to disprove any matter in issue and for that reason were inadmissible, and it was error to admit same. Russell v. State, 20 Ala. App. 68, 101 So. 71; Wigmore on Evidence, secs. 1157-1158.
The court erred in permitting the witness, Bob Gant, to testify with reference to particular actions of his bloodhounds, before laying proper and legal predicate for same. This testimony when properly introduced has a telling effect upon the jury. The credibility given to such in this instance must have been great and weighty. The only proof as to the pureness of blood and breed of the dogs used was the testimony, viva voce, of the witness Gant. He could not have known upon whose trail he was placing the bloodhounds for he did not know where he put them on anybody's trail. In the absence of this the testimony was inadmissible and the court was in manifest and grievous error in permitting such evidence (if such it could be called) in going to the jury. Scott v. State, 108 Miss. 464, 66 So. 973; Carter v. State, 64 So. 215; Spears v. State, 92 Miss. 613, 46 So. 166; Harris v. State, 143 Miss. 102, 108 So. 446; 1 Wigmore on Evidence, sec. 177.
The cause presented here if anything is infinitely stronger than the facts as presented in the Harris case, supra. Surely there was no testimony in this cause that these aged men hunters were subject to registration. This proof not only fails to meet the test with reference to breed, blood, age, and experience but there is "an entire absence of proof in this cause that the track from which the trail was started was made by the persons who committed the crime." Spears v. State, 92 Miss. 613, 46 So. 166. Under the rule in the Harris case, Spears case, Scott case, Carter case, supra, it was manifestly grievous and reversible error to permit such testimony to go to the jury with the improper predicate for its admission.
The court erred in refusing to permit appellant to cross-examine witness, R.A. Frazier, as to previous testimony given in prior trials. The appellant had a right to cross-examine the witness, R.A. Frazier, as to testimony given in previous trials at Clarksdale. The issues there were admittedly and indisputably the same as the issues in the instant cause. Possibly the testimony sought to be elicited was collateral in nature. There exists no inhibition against this at law. Wigmore on Evidence, sec. 1006; See Note, Hitchcock v. Moore, 14 A.S.R. 481.
The court erred in permitting witness, Marshall Jones, to testify to an alleged conversation given by appellant to the witness and offered and introduced over appellant's objection. Assuming that the testimony was admissible and amounted to a confession, this confession was not free and voluntary, and not free from that reasonable doubt necessary to its admission. Fisher v. State, 145 Miss. 116, 110 So. 361.
It was for the purpose of exhibiting violence that appellant offered to show the treatment accorded him on the night of his arrest. As said in Johnson v. State, 107 Miss. 196, 65 So. 218, the infliction of the blow by third parties was immaterial — the induction of fear was the prima causa. We say that this illiterate and ignorant negro with the mentality of a child was incapable of a free and voluntary confession to anyone, after the infliction of the blows by the Winchester rifle on the night of his arrest. See Fisher v. State, 145 Miss. 166; White v. State, 129 Miss. 182, 91 So. 903; Matthews v. State, 102 Miss. 549, 59 So. 842; Jones v. State, 133 Miss. 684, 98 So. 150; Banks v. State, 93 Miss. 700, 47 So. 437; Hampson v. State, 88 Miss. 257, 40 So. 445; Hathorn v. State, 138 Miss. 11, 102 So. 771; Whip v. State, 109 Miss. 697. The court erred in refusing to permit appellant to testify to the treatment accorded him on the night of his arrest. It was principally for the purposes therein stated that the testimony, rejection of which is here complained of, was offered. It was the most serious of error to refuse to permit appellant to show the treatment accorded him and it was only in this manner that it might be proved that such alleged confessions were induced through fear and having their inception in physical violence.
The court erred in refusing to permit appellant to show the present whereabouts of the co-indictee and the alleged conspirator, Lindsay Coleman, the record in the former trial being introduced in this cause showing that he was cleared by a jury of Coahoma county citizens and taken from the courthouse yard and ruthlessly mobbed. We cannot conceive under what possible hypothesis the testimony thus offered in evidence was rejected and excluded as immaterial. Is it not conceded that the theory of the prosecution in this cause was that a conspiracy of necessity existed among the four co-indictees? Could appellee be heard to say that it is immaterial to now show the whereabouts of an alleged accomplice, a co-indictee, and an alleged co-conspirator? Is it not a natural and inescapable query that comes to the minds of the jurors? Defendant and appellant was entitled to have the jury know that Lindsay Coleman is now dead and cannot answer summons of any court or tribunal of any land, he being the sole member of that alleged band unaccounted for. Our courts have rightfully held that even in causes of trials of murder accused may perpetuate testimony of deceased witnesses. Lee v. State, 124 Miss. 398, 86 So. 856. But prior to the introduction of former testimony it must be alleged and proved that the witness is dead or unable to give his testimony in which instance granting that same is proved, the testimony then becomes admissible. See Lee v. State, supra. There can be no question but that the former testimony of the witness Coleman on the former hearing was admissible. The necessary proof of his death, counsel for appellant were precluded from making. This was palpable error. And for this cause, if for no other, we respectfully submit this cause should be reversed and remanded for trial de novo. Owen v. State, 63 Miss. 450; Dukes v. State, 80 Miss. 353; Wigmore, sec. 1403.
Instructions 2 and 3 asked for and granted to the state were erroneous and calculated to mislead the jury. Lee v. State, 124 Miss. 398. The court erred in refusing instruction number 5 asked for and refused by the court. Circumstantial evidence must exclude every other hypothesis. Hogan v. State, 127 Miss. 407, 90 So. 99; Nalls v. State, 128 Miss. 277, 990 So. 892; Sorrells v. State, 130 Miss. 300, 94 So. 209; Irving v. State, 100 Miss. 208. These same authorities hold good for instruction 6. The court erred in refusing instruction number 7. Thompson v. State, 83 Miss. 287, 35 So. 689.
Rufus Creekmore, Assistant Attorney-General, for appellee.
The first proposition argued by counsel is that the court was in error in permitting the state to introduce in evidence the boots found on the body of Mr. Nicholas, the rope with which he was tied, the bloody axe found by the door, the hammer found by the safe, and the safe dial in its battered condition. The argument of counsel seems to be that these articles were irrelevant and could throw no light on the case. It is clear that no error was committed by the court in this respect. These articles all were relevant for the purpose of showing how the crime was committed and the motives which impelled its commission.
Counsel next argue that the court was in error in permitting the testimony of the witness with reference to the actions of the bloodhounds. The basis of this objection seems to be that proper predicate had not been laid by the state for the introduction of this character of testimony. In Harris v. State, 143 Miss. 102, 108 So. 446, the court laid down the rule that bloodhound testimony: "Is admissible only after preliminary proof that the bloodhound which tracked to the accused is pure bred, has been well trained to track human beings, has been well tested by tracking other men and found reliable, and that the track from which the bloodhounds tracked to the accused was made by the person who committed the crime." The testimony in this case shows that the two bloodhounds used by the state in tracking this defendant are pure blooded and pedigreed red English bloodhounds, that they were at that time twenty and twenty-four years of age respectively, had been trained by the witness since they were puppies to track human beings; that the course of training pursued was by putting runners out and permitting the dogs to trail them; that as their training progressed, the trail of the runner first sent out was crossed and recrossed by numerous other persons; that on these tests the dogs would invariably follow the trail which they had first taken. That these particular dogs had tracked and caught many criminals. This testimony clearly conforms to the standard which was laid down in the Harris case by the court. The point, however, is made by counsel in their brief that the pedigrees of the dogs could not be proven by the oral testimony of the witness, but that it could be proven only by the certificate showing the registration of the dogs and of their ancestors. A full and complete answer to this argument is that the Harris case does not require the dogs to be pedigreed dogs, but it merely requires that they be of a pure strain or breed. In support of the argument made by counsel that oral testimony is not admissible, no cases are cited, but the bare assertion in this respect is made. It is true that there are few cases to be found which deal with this proposition, but those cases which have been found by me indicate that oral testimony as to the purity of the breed of dogs and their ability in tracking persons satisfies the requirements of the law. Denham v. Commonwealth (Ky.), 84 S.W. 538; Blair v. Commonwealth, 188 S.W. 390; State v. Hunter (N.C.), 56 S.E. 547.
Counsel next argue that the court was in error in refusing to permit the appellant to cross-examine the witness R.A. Frazier as to previous testimony given by him in former trials. Counsel refers the court to the record at page 112 for the purpose of showing that the witness was attempted to be cross-examined with reference to the matters complained of. The only question which was asked this witness and objected to by the state was the following: "You did not testify in any of the cases that were tried at Clarksdale?" Objected to. Witness excused.
Counsel next argue that the confession made by the defendant to the witness Marshall Jones while in the county jail was inadmissible because obtained by improper influence. An examination was had in the absence of the jury for the purpose of determining whether or not the statement made by the defendant to Jones was a free and voluntary statement. This testimony shows conclusively that it was free and voluntary. The only objection which was there made to this statement by counsel was that it did not tend to connect the defendant with the crime for which he was being tried. Under these circumstances, it is evident that the court committed no error in this respect. Counsel argue that the court was in error in refusing to permit appellant to testify to the treatment accorded him on the night of his arrest. The argument in the brief seems to be that the purpose of this testimony was to show that the confession was not free and voluntary. The court will observe, however, that the defendant did not offer this testimony when the preliminary examination was being held, as to the competency of the testimony, but offered it only when he took the stand to testify on the merits. The court will also observe that even when this testimony was attempted to be offered, the court was not advised of the fact that it was offered for the purpose of showing the confession, which was made to Marshall Jones, to have been involuntary. The court will also observe that the trial court stated that the defendant would be permitted to show what any person who was a witness on the trial of the case had done to the defendant, because this would show the interest that he had in the matter.
Counsel next argue that the court was in error in refusing to permit the defendant to show the whereabouts of Lindsey Coleman, who also had been charged with the commission of the murder. This testimony was offered by the defendant and was received by the court as is disclosed. The only question which was objected to by the state was the following: "Where is Lindsey Coleman now, John?" Objected to as immaterial. Objection sustained.
Counsel next argue that the two instructions granted the state are erroneous. Counsel cite Lee v. State, 124 Miss. 398, as authority for their contention. A reading of this case shows that it has absolutely no application to the case at bar. These instructions were correct in that they merely announced the well-settled rule of law that if two or more combined to do an unlawful thing and the outcome of the proceeding according to the common plan terminates in a criminal result, although not the particular result intended, all are liable. In this case it is clear that Grover C. Nicholas was killed in furtherance of the common design to rob the store of Mr. Traynham. Since this is true, the instructions correctly pronounced the law applicable to the case. An instruction very similar to the instructions here complained of was approved by the court in the case of Lusk v. State, 64 Miss. 845. See, also, Peden v. State, 61 Miss. 267.
Counsel next argue that the court was in error in refusing three instructions requested by the defendant. Assuming that the first two of these instructions correctly state the law, yet no reversible error was committed by the court in refusing them, because the defendant procured other instructions pronouncing precisely the same principles of law and drafted in language which is clearer and less misleading. I refer especially to instructions number nine and number six, granted the defendant. Instruction number eight was erroneous and was properly refused by the court. It is the so-called two theory instruction and although approved in the case of Thompson v. State, 83 Miss. 287, has been later disapproved in the cases of Runnels v. State, 96 Miss. 92, 50 So. 499; Roux v. Gulfport, 97 Miss. 559, 52 So. 485; Saucier v. State, 102 Miss. 647, 59 So. 858; Brady v. State, 128 Miss. 575, 91 So. 277; Wiley v. State, 129 Miss. 196, 91 So. 906.
John Fisher, the appellant, Rayford Leonard, Lindsey Coleman and Albert Hobbs, all negroes, were indicted for the murder of one Grover C. Nicholas in the circuit court of Coahoma county, Miss. The case was here on a former appeal from a conviction, and is reported in 145 Miss. 116, 110 So. 361, wherein the case then before the court is fully stated, and the judgment was reversed for the admission of certain confessions alleged to have been extorted from the defendant and his coindictees by unlawful methods.
When the case was remanded to the circuit court of Coahoma county, a motion for a change of venue was filed. The motion was granted, and the case was sent to Yazoo county for trial. The appellant was put on trial in Yazoo county at the April, 1927, term, the result of which was a mistrial. At the next term, the October, 1927, term, the appellant was again placed on trial, was found guilty as charged, and was sentenced to suffer death.
In the present trial, the confessions extorted by unlawful methods were not offered in evidence by the state, but a confession alleged to have been made by the appellant to a fellow prisoner the day he was placed in prison and before the coercing method was resorted to was introduced by the state. In this alleged confession to the other prisoner, as testified to by said prisoner, the appellant stated that he was arrested on a charge of killing a white man, but that he was not guilty; that the right man had been arrested, but that he had been turned loose. He was asked how he knew the other party was the right man, to which he replied that he was present at, but had nothing to do with, the killing.
Albert Hobbs was introduced as a witness for the state on the last trial, and testified that he lived with Mollie Berry, and was at home the night of the killing, reading his Bible, when some one came for him, and reported that one of the other negroes' car had stalled near the store where Nicholas was killed; that he went with him down to a gin, near the said store, and, seeing no car, asked where the car was; that the appellant and others were at the said place; that the appellant asked one of the other negroes to state to the witness what they intended to do, and that the designated party, in the presence of appellant (Fisher), stated that they were going to rob the store and get some money; that the witness remonstrated with them, stating that he would have nothing to do with it, and that he would tell if they did it; and then, he said, some one stated that they would give him part of the money, but that he still refused; and that one of the other negroes struck him with his fist, and stuck a pistol in his face, and he told them, if they would not shoot him, he would go with them; that they said they would take him down to the store with them; that if he told, he would have been at the killing, and "in it" with the rest of them; that Fisher went along; that the witness was placed on the gallery of the store to watch the road; that one of the other indicted persons stood near with a pistol; that he (the witness) planned to raise an alarm by saying that a car was coming, and make his getaway; that the party who had the pistol turned to go into the store, and he, the witness, stepped off into the darkness and ran away, intending to go home; that he heard a noise like a chair or box turning over; that in about an hour all of the parties, except Fisher, returned to the house of Mollie Berry (Fisher lived in a house in Mollie Berry's yard); that witness did not see the killing, but heard of it the next day.
Hobbs further stated that he had testified, on previous trials, that he knew nothing of the killing, and that the water cure had been administered to him and others; that he had testified to like effect on the trials of some of the other defendants. He testified that such testimony was false, but that he was in prison, and thought they were going to hang him anyway; that the day following the killing attorneys approached him, and, when he started to make this statement, said it was a lie, and that he would break his own neck. As to this statement, he was contradicted by the attorneys referred to. Witness took the stand, and stated that, after being in jail, he went through a fast; that he decided that he was going to die anyway; and that he would rather die with the truth than to die with a lie.
After the body of Nicholas was discovered the next morning, unconscious, but still alive, bloodhounds were sent for, and, upon arrival of the hounds with their owner, they were taken by him to the store, and into the store where the body lay, and there, the witness Traynham said, the dogs smelled of the deceased and himself, in turn; that they were taken to the cash drawer in the store, and that there they took a trail, and followed it to the house in which appellant lived, where he was found alone and taken into custody.
The defendant took the stand in his own behalf. He denied the statement of Hobbs, and of the witness Jones, who was in prison, and who testified as to the alleged confession. Defendant denied that he was at the store on the occasion at all; denied that he had been at the store for about a week prior to the killing; testified that the night on which the killing occurred it was rainy; that early in the night he had gone to another place, and had remained there until seven or eight o'clock; that he then went to his room, and remained there the rest of the night. The party to whose house he claimed to have gone on the night of the killing testified to like effect — that defendant left his house about eight o'clock on the night of the killing.
The state introduced evidence of the condition of the body of the deceased; that he had been struck above and behind the ear with a blunt instrument; that, when found, he was unconscious and bleeding; that his hands were tied behind his back, and his limbs tied together with a rope, or cord. Witnesses testified that the lock on the safe in the store was battered; that a hammer was found by the stove in the store, and that a piece of iron was found behind the counter; that an axe found in the store had blood upon it; and that the combination dial on the safe had been battered. The introduction of this evidence as to the physical conditions surrounding the deceased was objected to, and the objection overruled, but no exception was taken thereto. The introduction of such evidence constitutes the first assignment of error.
The case depends, in part, upon circumstantial evidence, and the corpus delicti may be established by circumstantial evidence.
We think the evidence as to the situation of the body of the deceased, its condition at the time it was discovered, and the location and condition of these instruments, was admissible for the purpose of showing that the killing was done by criminal agency, and that there was no error committed in admitting it. It is true that the physical conditions surrounding the deceased did not, of themselves, connect the appellant with the killing; but they show the criminal agency of a human being, other than Nicholas, in bringing about his death.
During the examination of the witness Traynham, the appellant asked the witness what was the present status of the home of Mollie Berry. This question was objected to, and the objection sustained. No explanation was made of the materiality or pertinency of the then condition of the home of Mollie Berry to the question involved; the trial being held two years subsequent to the time of the killing. We think the court committed no error in sustaining the objection.
It is next assigned for error that the court erred in permitting the witness Gant to testify with reference to the action of the bloodhounds before laying the proper legal predicate therefor. Gant was asked, first, as to the quality, breeding, and training of his bloodhounds. He stated that he trained the dogs; that they were of pure blood and breeding; that they were Red English bloodhounds; that their most prominent ancestor was Black Prince, of New York; that he personally trained the dogs by putting out a person and running him with the bloodhounds, by having the tracks of such person crossed by other persons to see if the dogs would leave the trail of the person they were first put upon and take up the trail of such other parties — that he would have a try out of the dogs. He testified that he had never known the dogs to leave the first trail to follow the trail of those crossing the first trail.
Gant testified that he reached the place of the killing about nine o'clock on the night following the discovery of Nicholas' body in the store; that the weather was damp; that it was in the fall of the year; that he went into the store and looked around, to get a starting point; that he took the dogs, and put them down by the safe; that they left from the safe, going out of the store and off of the end of the store gallery; that, when they struck a trail, they began to bay, which was the custom of the dogs. He further testified that these dogs were trained to run human beings, and nothing else; that they were not permitted to run any sort of animal. Gant testified that, when the dogs came out of the front door of the store, they jumped off of the end of the gallery and trailed up to, and down, the railroad to a path that went out to a negro house, followed the path up to the house, and bayed; that he knocked on the door of the house, and asked who was there, and a negro came to the door, and the dogs made at him, baying and jumping at him; that this was the party whom the dogs had trailed. He further testified that he circled the house to see if any other tracks had been made around the house, but that the dogs refused to take up any trail leaving the house; that the defendant was then arrested by the deputy sheriff who accompanied him on the trail.
It seems to have been the theory of the appellant that it was not permissible to prove the breed of the dogs viva voce by the testimony of Gant, but that it should be done by written pedigree. We think it was competent to prove the breeding and training of the dogs by the oral testimony of their owner. Counsel have cited no authority which holds that a written pedigree is necessary, and we know of no statute making it competent or exclusive evidence. We think it was competent to prove their training, breeding, and capacity by the method used in the present case.
It is argued that Gant could not have known upon whose trail he was placing the bloodhounds, for he did not know that he put them on anybody's trail. In the very nature of things, of course, Gant could not have known whose trail the dogs took, under the circumstances disclosed in the record. None of the state's witnesses, other than Hobbs, knew that the appellant was at the store on the occasion of the homicide. It was competent to show that the dogs took the trail of some person at the place where Nicholas' body was found, as the public had been excluded therefrom until the arrival of the bloodhounds. Following this trail from the store to the house in which appellant lived tended to prove that he had recently been at the place of the homicide. It is an established law of the state that evidence of bloodhounds trailing a track from the scene of the homicide to the place where a person is found is admissible, where the evidence shows that the dogs were of the proper pedigree and breed, and that they had been properly trained and were reliable on trailing such tracks. Spears v. State, 92 Miss. 613, 46 So. 166, 16 L.R.A. (N.S.) 285; Carter v. State, 106 Miss. 507, 64 So. 215, 50 L.R.A. (N.S.) 1112; Scott v. State, 108 Miss. 464, 66 So. 973; Harris v. State, 143 Miss. 102, 108 So. 446. In this last case it was held that "although fact that bloodhounds trailed defendant from track at place where person committed crime must have stood is circumstance indicating crime was probably committed by defendant, such evidence is admissible only after preliminary proof that bloodhounds were pure bred, and trained to track human beings, and were reliable and that track where bloodhounds started was made by person committing crime. That case was reversed because the necessary proof as to the training and breed of the dogs was not made. But it is fully established by the authorities cited that, where such evidence of breeding and training and faithfulness to trail is proven, such evidence is admissible as a circumstance pertinent, with other evidence, to prove the guilt of the person so trailed; and we think the record in this case meets the requirements in the above-stated case. These requirements are made in favor of life, liberty, and the pursuit of happiness by man; but, when the necessary safeguards are provided, the evidence is admissible.
Counsel contends that such testimony has a telling effect on the jury; that jurors are apt to put too much faith in, and attach too great significance to, its inception and import. While it is not looked upon with favor in law, still it may be admitted in evidence, and, when so admitted, its weight and worth is for the jury.
Conviction of the appellant did not depend alone upon the fact that he was trailed with bloodhounds, but that evidence is supported by the testimony of Hobbs and of Jones. Hobbs testified as to the presence of the defendant at the store at the time of the homicide; and Jones testified that appellant voluntarily confessed to him that he was present on that occasion. Under the evidence, the appellant and others had agreed to go to the store on the night in question for the purpose of committing a robbery, and the killing was done in pursuance of the robbery, which made all persons in the common conspiracy guilty regardless of which one of the conspirators actually committed the killing. At the time appellant made the statement to Jones, he was, no doubt, ignorant of the law on this subject, and did not think he would be found guilty, unless he personally committed the crime.
It is next contended that the court erred in refusing to permit the appellant to cross-examine R.E. Frazier as to his testimony given on a previous trial. The only showing in the record on this proposition is the following:
"Q. This is the first time you have testified in these cases, isn't it? A. No, sir.
"Q. What other cases have you testified in? A. I testified here at the last court.
"Q. You didn't testify in any of the cases that were tried at Clarksdale?" (Objected to. No ruling or exception. Witness excused.)
This was certainly not reversible error, as counsel did not insist on a ruling and took no exception.
It is next contended that it was error to admit the testimony of Marshal Jones, the fellow prisoner. The record shows that the statement was voluntarily made; that no inducement was offered or used to obtain it. It was made to a fellow prisoner who asked, as a mere matter of curiosity, why the appellant was in jail; and it was admissible for the purpose of showing that the appellant was present at the scene of the homicide, at the very time the killing was done. It tended to show his connection with the crime. It is contended, in connection therewith, that the night prior to the time he was placed in jail some one struck him while he was under arrest; but there was no effort to show that this blow was inflicted for the purpose of obtaining a confession, or that any statement was made by the appellant under the influence of it. Appellant denied the statement testified to by Jones as to his saying he was present, but did not offer any evidence when the admissibility of Jones' testimony was under consideration. He reserved the denial thereof until he took the stand in his own defense at the conclusion of the state's evidence.
There is nothing in the record to show that the refusal of the court to permit him to testify as to the blow he was struck the night before he was placed in jail was erroneous. The pertinency of this testimony is not apparent in the light of this record, however important it may have been on the former trial, where unlawful testimony was introduced.
It is also assigned as error that the court refused to permit the appellant to show the present whereabouts of the coindictee, one Lindsey Coleman. It appears from the record of a former trial that Coleman was tried and acquitted, and was lynched immediately after his acquittal. The appellant, in asking the question, did not indicate to the court any pertinent purpose for introducing this evidence on the present trial; and, on the record, the court properly excluded the evidence. If the appellant had stated that his purpose was to show his inability to produce Coleman, and to prove that Coleman was dead, the court might have admitted that evidence for the benefit of the jury; but the fact that Coleman was lynched, at Clarksdale, more than a year prior to the trial in Yazoo county, Miss., was not, as we see it, pertinent to the case.
It is next assigned as error that the court granted the state's instructions 2 and 3, which, it is claimed, are erroneous, and calculated to mislead the jury.
Instruction No. 2 told the jury that, if they believed beyond a reasonable doubt that John Fisher, together with Rayford Leonard, Lindsey Coleman, and others, entered into an agreement to rob the store of Mr. Traynham, and, pursuant to such agreement, attempted to do so, and in such attempt any one of them struck Grover Nicholas on the head, from which blow he afterwards died, then the jury should find the defendant guilty as charged; that it was immaterial which one struck the blow, and was immaterial whether or not there was an actual intent to kill. Under the proof of conspiracy, above set out, and the circumstances developed in the evidence, we think the instruction was proper, and that there was no error committed in granting it.
Instruction No. 3 for the state told the jury that "murder is the killing of a human being without authority of law by any man or in any manner when done with the deliberate design to effect the death of the person killed;" and the court charged the jury that, if they believed from the evidence beyond a reasonable doubt, that John Fisher, in connection with others, went to the store of Mr. Traynham, with the intent and design to rob the store, and that, in the attempt to rob the store, John Fisher, or another, struck the blow from which Grover Nicholas afterwards died, then it was the duty of the jury to find the defendant guilty as charged; that it was immaterial whether or not John Fisher actually struck the blow, or blows, or whether it was struck by others. It is the settled law of the state that the act of one conspirator done in the carrying out of the conspiracy is the act of all of the conspirators, and this instruction is not erroneous.
The appellant contends that the court erred in refusing instruction No. 5 for the defendant. Instruction No. 5, refused the defendant, reads as follows:
"The court instructs the jury that the state, in order to make out its case by circumstantial evidence, such evidence must exclude any and every other reasonable hypothesis than that of guilt deducible either from evidence or lack of evidence."
Instruction No. 9, given for the defendant, embraces this principle. The instruction reads as follows:
"The court instructs the jury that, if they can deduce from the facts and circumstances surrounding the case, either from the evidence or lack of evidence, any reasonable hypothesis consistent with the innocence of the defendant, then there is a reasonable doubt of his guilt, and the jury must return a verdict of not guilty."
The court is only required to charge the jury, in stating a given principle, one time and no more.
Counsel also complains of the refusal of instruction No. 7, requested by the defendant, which reads as follows:
"The court instructs the jury that, to warrant a conviction in this case, the evidence on the part of the state, on the whole, must be such as to produce a moral certainty of guilt to the exclusion of every reasonable doubt of the guilt of the defendant, and, unless the evidence has this effect, the jury must acquit."
This principle was, in substance, given in other instructions.
Counsel also complains of the following instruction, which was refused:
"The court instructs the jury for the defendant that, if there arises from the facts in this case two reasonable theories by one of which the jury should, under the instructions of the court, find the defendant guilty, and under the other, it would be the duty to find the defendant not guilty as charged, then it is the duty of the jury throughout to give the defendant the benefit of every reasonable doubt in the cause, and to adopt that theory consistent with the innocence of the defendant, even though the jury believe from the evidence that the theory of his guilt is the better, and supported by the stronger evidence."
In support of this contention Thompson v. State, 83 Miss. 287, 35 So. 689, is cited. This instruction has been condemned a number of times by this court. Runnels v. State, 96 Miss. 92, 50 So. 499; Roux v. City of Gulfport, 97 Miss. 559, 52 So. 485; Saucier v. State, 102 Miss. 647, 59 So. 858, Ann. Cas. 1915A, 1044; Brady v. State, 128 Miss. 575, 91 So. 277; Wiley v. State, 129 Miss. 196, 91 So. 906.
The principle sought to be invoked in this instruction was never applicable to testimony, except that of circumstantial evidence alone, and was improperly applied in Thompson v. State, 83 Miss. 287, 35 So. 689, to the testimony of eyewitnesses; and, as stated above, has since been disapproved many times. Its effect has been to mislead the jury and to prevent it from exercising its discretion in settling questions of veracity under proper instructions by the court.
We find no other question calling for discussion, and the judgment of conviction is affirmed, and Thursday, the 31st day of May, 1928, fixed as the day of his execution.
Affirmed.