Summary
In McLaurin v. State, 205 Miss. 554, 37 So.2d 8 (1948), the same instruction was criticized by the court for the reasons stated in Hall and Smith, supra.
Summary of this case from Pendergraft v. StateOpinion
October 11, 1948. Appeal dismissed and certiorari denied in the Supreme Court of the United States, March 28, 1949. 93 L.Ed. (U.S.) 644.
1. Criminal law — homicide — effect of insulting language.
When the testimony discloses that the accused was guilty of deliberate murder, the offense is not to be reduced to manslaughter because of insulting words addressed to the accused by the deceased, however grievous or provoking the words may have been.
2. Trial — instructions — falsus in uno, falsus in omnibus.
The instruction commonly known as the falsus in uno, falsus in omnibus instruction is properly refused.
3. Trial — instructions — presumption of innocence.
A lengthy and complicated instruction on the presumption of innocence which embodies correct legal principles, but is so drawn that it might confuse the jury is not commended, but there will be no reversal for having granted it.
4. Trial — rebuttal — contradictory statements by witness.
When a defendant in a prosecution for homicide has testified that he had become unconscious by a blow on the head before the homicide occurred, rebuttal testimony of the constable who later arrested the accused as to a statement then made by the accused contradictory of his testimony about having lost consciousness was properly admitted.
Headnotes as approved by Roberds, J.
APPEAL from the circuit court of Rankin County; PERCY M. LEE, J.
W.E. McIntyre, John Burkett, and Barnett, Barnett Jones, for appellant.
Section 2215, Code of 1942, defines homicide and murder as follows: "The killing of a human being, without the authority of law, by any means or in any manner, shall be murder in the following cases: (a) When done with deliberate design to effect the death of the person killed, or of any human being; (b) When done in the commission of an act eminently dangerous to others, and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual;"
It will be noted Sub-section A of the Section deals with a deliberate design to effect the death of the person killed or of any human being. There was certainly no deliberate design in this case on the part of the defendant to cause the death of the deceased, assuming that he killed the deceased, which, of course, is not admitted. Therefore, it is believed that Sub-section A does not apply here. By a careful reading of Sub-section B, it can be seen that this Section states that the person must evince a depraved heart, that it must be regardless of human life, and that it must be an act eminently dangerous to others. Webster's Dictionary defines "deprave" as "to make bad or worse; to impair the good qualities of; to vitiate; to corrupt". In the synonyms given for "deprave" are "contaminate", "corrupt", "pollute", and "vitiate". Webster's Dictionary also states that "depravity" is a disposition or settled tendency to evil; that it is the act or process of making "depraved" as the depravation of morals. It is submitted that in this case there is no evidence to show a depraved heart on the part of the defendant. Webster's Dictionary defines "evince" as follows: "To show in a clear manner; to prove beyond any reasonable doubt."
There is no evidence in this case which evinces a depraved heart on the defendant before the actual shooting took place. There is also no evidence whatever of any statements or acts on the part of the defendant after the shooting which would evince a depraved heart, reckless of consequenses.
The importance of a motive in a murder prosecution should not be overlooked. Motives has a distinct bearing in the consideration of a verdict in a criminal case involving the charge of murder. There was no evidence of bad character on the part of the defendant. Is it not unreasonable to assume that he would suddenly step out of character and commit a crime as this — especially without a reasonable motive for so doing? As was said in Shaw v. State, 21 So.2d 590: "In the first place, no cogent motive is shown on the part of Shaw. . . . The importance of motive in considering verdicts is illustrated in the recent case, Lyle v. State, 193 Miss. 102, 8 So.2d 459 — which was not only reversed, but was dismissed."
The evidence in this case shows that the defendant hardly knew the deceased, that he had seen her but did not know her by name; there is no evidence of any quarrel between him and her or any kind of trouble or ill feelings between them. There was no jealously present; no financial dealings present; no intimidation present, no feelings of any kind shown between them. It is not reasonable to believe that he would suddenly shoot her.
Motive is an inducement or that which tempts the mind to indulge a criminal act; the reason which moves the will; the inducement existing in the minds of persons, causing them first to intend and afterward to commit crime.
Calling a person a "damn son of a bitch" has been held a sufficient excuse for an assault and battery by use of the hands and fists. Thomas v. Carter, 114 So. 736 (Miss. 1927).
This case was a civil case, but it brings out clearly the theory and idea that to call a person a son of a bitch is such a departure from good conduct, decent speech, and ordinary good morals, that it creates a "heat of passion" in the person cursed. It arouses resentment, causes anger and invokes action out of the usual and ordinary.
Naturally, we do not argue here that to curse a man in this manner is justification for killing him, but we do say with all sincerity that to call a person a son of a bitch or a cheap son of a bitch fires the anger of the person cursed and arouses him to a high pitch, to say the least.
Therefore, we say that to apply this epithet to a person in the presence of the public, as was the case here, creates such resentment, anger, fury, that the jury should entertain a reasonable doubt as to whether the defendant did or did not shoot the deceased in a "heat of passion", and the jury therefore ignored the instruction on manslaughter.
It is submitted in this case that the evidence did not show that the defendant evinced a depraved heart, regardless of human life, and the evidence certainly did not show any premeditated design on his part to effect the death of any person, but on the other hand, the evidence showed that the deceased put her hand in the defendant's pocket to see how much money he had in the pocket, and then said "You are a cheap son of a bitch". We should like to ask the court what more insulting, arousing derogatory remark could one person make to another than such a statement. It is submitted that to call a man that name would be enough by itself without adding the term "cheap" in front of it. To add the word "cheap" in front of such an epithet attributes to the person spoken to the most low down and detestable character that can be imagined. To speak such words to a person in front of several other persons in a public place such as a cafe is certain to subject the person spoken to, to insult, degradation, scorn, and to incur the resentment of that person into hot flames of passionate anger to such an extent that it would overthrow the reasoning or judgment of the accused by the sudden excess of violent passion. These words undoubtedly created a feeling of excitement and insult on the part of the defendant, which produced in his mind a high degree of exasperation and clouded his reason and intellect.
The court erred in refusing the following instruction requested by defendant: "The court instructs the jury for the defendant that if you believe from the evidence in this case that any witness has wilfully and corruptibly sworn falsely to any material fact in the case, then the jury in making up their verdict may, in their discretion, totally disregard all of, or any portion of, the testimony of such witness."
Where a case is tried by the court and a jury the credibility of witnesses and the way and value to be given to their testimony, are questions exclusively for the jury. 16 Corpus Juris, Sec. 2291, page 930, Miller v. State, 35 So. 690 (Miss.).
In the Miller case the following instruction was held to be good: "The court instructs the jury for the state that they are the sole and exclusive judges of the weight of the evidence and the credibility of the witnesses, and, in determining the weight to be given to the testimony of each witness, you may take into consideration the reasonableness or unreasonableness of the testimony; and, if you believe from the evidence that any witness has wilfully sworn falsely to any material matter in this case, then the jury may disregard the whole testimony of such witness or witnesses, if you believe it untrue."
We have read the case of McDonald v. State, 28 So. 750; the case of Bell v. State, 43 So. 84; the case of Turner v. State, 57 So. 629; the case of Metropolitan Life Insurance Company v. Wright, 199 So. 289, the case of Swanner v. State, 2 So. 2, and we still contend that the true and best rule is that if the jury believes from the evidence that a witness has wilfully sworn falsely to any material fact in a case, then they should be allowed to disregard the testimony of such witness altogether, or any part of it, because of the fact that if a witness wilfully testifies falsely to a material fact in one instance, he is likely to testify falsely about everything.
A witness is presumed to speak the truth, as was held in Comstock v. Rayford, 20 Miss. 269, but this presumption is only a presumption and nothing else, and we submit that if the facts in any case and the trial thereof convinces the jury that the witness has wilfully testified falsely, then they should disregard his testimony. For after all is said and done, the purpose of the trial in the courts is to do justice and arrive at the truth, and elicit the facts, and if a witness testifies falsely, knowing the same to be false, then he is overdrawing the very fundamental basis of our jurisprudence.
We should like to quote from the opinion of Judge Whitfield in the case of Turner v. State, 95 Miss. 879, 50 So. 629: "It is not thinkable that a man can wilfully and corruptly swear falsely without also "knowingly' swearing falsely. This charge has been given immemorially in this state, and should manifestly have been given in this case."
"It is sometimes said that the maximum, `falsus in uno, falsus in omnibus', is not a principle of law at all. Whether it be a principle of law, or whether it be `a principle of logic and common sense', as it is called in the third volume of Sackett on Instructions, p. 2116, par.(d), is utterly immaterial. Undoubtedly, it is perfectly sound principle and a wise precautionary charge in proper cases, and we think this was a proper case in which to give this instruction. Certainly, as stated, it is an instruction which has been given in this state by universal practice of judges for time out of mind, and we see no reason now for departing from a custom which has been so long continued and which we think is a wise and salutary one. . . . Whether it should be given in a particular case depends upon the facts of that case, and in this case we think the facts were such as to require the giving of this instruction. . . ."
The court erred in granting the instruction for the State which begins on bottom of page 99 of the Record: "The court instructs the jury for the State, that while it is true in this case as in all criminal cases, that the defendant is presumed to be innocent until proven guilty, and that this presumption of innocence goes with the defendant throughout the entire trial, until overcome by competent testimony and that while it is further true that the burden of proof in this case as in all criminal cases, is upon the State to satisfy the minds of the jury, of the guilt of the defendant from the evidence, beyond a reasonable doubt, yet the court now says to you, that this presumption of innocence which the law throws around the defendant as a shield and safeguard, is not intended to shield from punishment anyone who is in fact guilty, but is simply a provision of the law to guard against the conviction of any innocent person, and the court further says to you, that if you believe from all the evidence in the case, beyond a reasonable hypothesis, that the defendant is guilty as charged in the indictment, then it is your sworn duty to, "Guilty" by your verdict, regardless of the presumption of innocence and the further fact that the burden of proof is upon the State."
This instruction is vague, technical, verbose, adroit, confusing, misleading, and difficult to understand by the average juror. It is inconceivable that the jury in this case could adequately understand this instruction and act on it intelligently. The instruction contains 16 lines, and 223 words.
The instruction was undoubtedly copied almost verbatim from an instruction in the case of Smith v. State, 137 So. 96, on page 98 of the opinion. It is exactly the same except it has the word "humane" before the word "provision" on line 10, and on line 11 it has "a" instead of "The" before conviction, and has "any" instead of "an" before the word "innocent". And on line 13 it has the words, "and to the exclusion of every other reasonable hypothesis" which words are not included in the instruction of the above cited case.
In commenting on said instruction in Smith v. State, 137 So. 96, the Mississippi Supreme Court said: "A careful analysis of this instruction, we think, shows that it embodies correct legal principles. Nevertheless, it is so adroitly drawn as to go very near the border line. The lay mind, in reading it, might get the idea that the jury, in making up their verdict, were not to take into consideration the burden of proof and the presumption of innocence. At first glance, the instruction is calculated to convey that impression. We cannot say that it was error for the court to give this instruction, but we think that on another trial it should be left out of the case. It is too illusive for the ordinary juror to get hold of and understand its meaning. The instruction is too smart."
To repeat: "It is too illusive for the ordinary jury to get hold of and understand its meaning. The instruction is too smart."
While the court says the giving of this instruction is not reversible error, the court has stated in a late case, Williams v. State, 14 So.2d 216, that such instruction is so adroitly drawn as to go very near the border line; that the lay mind in ruling it might get the idea that the jury in making up their verdict could not take into consideration the burden of proof and the presumption of innocence. The court stated quoting from Smith v. State, 137 So. 96, as follows: "But we think that on another trial it should be left out of the case. The instruction is too illusive for the ordinary juror to get hold of and understand its meaning. It is too smart."
The court erred in admitting the testimony of John White, Constable, in rebuttal over the objections of the defendant.
This was error because such evidence so often and admitted by the court was for the purpose only, of impeaching the defendant as a witness in his own behalf on an immaterial matter brought out on cross-examination by the State, and it was calculated to prejudice the jury. The court erred in admitting the testimony of the other witnesses offered by the State in rebuttal to the testimony of the defendant, over the objection of the defendant for the reason that such testimony, if admissible at all would have admissible in chief by the state, and this testimony was not in rebuttal of any material evidence offered on behalf of the defendant.
It is a general rule in this State that it is not competent to contradict or impeach a witness about an immaterial or collateral matter. Williams v. State, 73 Miss. 820, 19 So. 826; Garner v. State, 25 So. 263; Jefferys v. State, 28 So. 948; Bell v. State, 38 So. 795; Ware v. State, 110 So. 503; Walker v. State, 119 So. 796.
There are certain tests by which it is to be determined whether a matter is irrevelent or collateral as brought out in the case of Garner v. State, 76 Miss. 515, 25 So. 363, where the court said: "Applying the infallible test laid down by this court as the elaborate and exhaustive opinion, delivered in the case of Williams v. State, 73 Miss. 820, 19 So. 826, the error in admitting this evidence of Farnham is palpable. `The test of whether a fact inquired of in cross-examination is collateral is this: would the cross-examining party be entitled to prove it as a part of his case, tending to establish his plea?'"
This rule has been in effect in Mississippi for a long time. As shown in the case of Jones v. State, 177 So. 38, we quote, "The rule has been well settled in this state for a long time that a witness cannot be impeached about an immaterial or collateral matter, for statements out of court contrary to his evidence in court about an immaterial or collateral matter. In Williams v. State, 73 Miss. 820, 19 So. 826, it was held that it is error to admit testimony to contradict that of a witness for the opposite party, drawn out on cross-examination, unless the testimony sought to be contradicted is of a substantive nature, and relative to the issue, and not merely collateral thereto; that the testimony of a witness on cross-examination is such that it would not be competent if offered by the cross-examiner, the same is collateral and cannot be contradicted. When a witness for the defendant in a murder trial has denied, on cross-examination, that she said to the wife of the deceased, beside his dead body, on the day of the homicide, in the presence of certain persons named, `I sent you word not to let your husband come down here. They made up a plot to kill him three weeks ago', such testimony being wholly incompetent, it was error to allow the state to introduce the contradictory testimony of one of the persons named as present at the time."
George H. Ethridge, Assistant Attorney General, for appellee.
The defendant contends that somebody struck him in the back and on the head and that things went dark. He undertook to say that the deceased cursed him and attempted to draw a weapon from her bosom. A careful reading of his testimony shows this to be entirely incredible, and unworthy of belief. It was contrary to the testimony for the State and he is not supported by any witness. Of course, the jury was the judge of the credibility of the witnesses and the weight and worth of their testimony. The evidence overwhelmingly justifies the verdict rendered. Any killing of this type deserves the death penalty if a person believes that the death penalty should be given in any case, which the law requires in order to serve on a jury. I do not deem it necessary to pursue the discussion by the appellant in his brief that the evidence was insufficient to make out murder. There is no element of manslaughter in the case and it was a very atrocious and unjustifiable killing. The appellant has a good deal to say about there being no proof of malice aforethought and goes into definitions of various words used in the instructions and in the evidence along the line that it did not show malice and it could not amount to murder. A person who shoots another deliberately and causes death to result without any excuse for the shooting is certainly clearly guilty of malice aforethought. This term has often been sustained by proofs of killings much less atrocious than in the present case.
The appellant claims that the instruction beginning at the bottom of page 99 of the record is vague and could not be understood by the jury. I call the court's attention to the language used by the trial judge at pages 106 and 107. I submit that if the instruction had not been withdrawn by the court it would not have been reversible error because all of the instructions were to be taken together and construed as one instruction given by the court to the jury for their guidance in the case.
The defendant also complains at considerable length of the refused instruction appearing on page 103 of the record. It is true that in the early years of the State and on down until recent years the court had given and approved this instruction to the effect that if the jury believed from the evidence that any witnesses had wilfully or corruptly or knowingly sworn falsely to any material fact in the case, the jury might totally disregard all of or any portion of the testimony of such witness. They were never required to disregard the testimony and in late years the court has held that the instruction was on the weight of the evidence and prohibited, by statute, the judge from making any comment on the weight of the evidence. The preceding cases were overruled in regard thereto as being improper, and contrary to the prohibitions of the statute.
Counsel also complains that the instructions given for the State are too long and involved for the jury to understand them clearly. Jurors are men of intelligence and in this day and time most of them are fairly well educated and more capable than in the past of understanding written instruments and they, no doubt, understood the instructions given them by the judge. No doubt, counsel in this case was equal to the occasion and enlightened the jury on what the instructions meant and what evidence supported the theories embraced in the instruction. I submit that there is no reversible error in the case and that the death penalty was rightfully inflicted by the jury.
McLaurin was convicted of the murder of Hertisene Porter and sentenced to death.
On this appeal, he contends (1) that the proof does not sustain a conviction of any crime, but, if so, no greater crime than manslaughter; (2) that the trial judge erred in granting to the State, and in his refusal to grant to him, the instructions hereinafter discussed; and (3) in admitting in evidence in behalf of the State certain rebuttal testimony.
The first contention requires a brief summary of the evidence. The incident took place on Sunday morning, March 3, 1947, around one-thirty to two o'clock, in a cafe operated by one James Howard Carr in the western part of Rankin County. There were a number of parties present. The testimony of James Holden as to what happened is illustrative of that offered by the State. He said:
"A. Well that night we all went over there, we left the Green Lantern and went over there to the place, me, Hertisene and Woodworth and another boy, and we all got in the place and he goes in first and I goes in behind him and he started ordering the Coca Colas, first one thing and another, and James Howard asked him, says `are you ready to pay up the bill" and he seemed not to hear it and Hertisene repeated it and he said to me `You get back' and I stepped back and he hauled off and shot me, then turned around and shot her.
"Q. Who was it said something about paying the bill? A. James Howard Carr.
"Q. What did she say to Woodworth? A. She repeated him.
"Q. What was it he said if anything? A. He said `Step back.'
"Q. Well did he say he was going to pay the bill? A. He said he was going to settle for the whole bill.
"Q. All right, then what did he do? A. He hauled off and shot me.
"Q. Where did he shoot you? A. In my arm.
"Q. Have you got a scar there on your arm? A. Yes, sir.
"Q. What else did he do? A. Then he turned and shot her just as she went out of the door, then he come on out of the house and shot this other fellow." Objection was sustained to evidence that appellant shot "this other fellow."
The witness further said that the Porter woman ran from the building into the front yard and shortly expired. On cross examination he said "Well when James Howard asked him to pay the bill or was he ready to pay the bill, she repeated it, he seemed to didn't hear it and she repeated it to him, he stepped back and said `I will pay all the bills'"; that appellant "pushed me back" and shot the witness, and then shot Hertisene Porter as she ran from the building. Four other eyewitnesses for the State substantiated the testimony of this witness, all saying that Hertisene Porter had no weapon, was engaged in no overt act whatever towards appellant, but, on the other hand, was running away from him. The victim was shot in the back, a little to the left side.
The proof of the State further shows that appellant was overcome and the pistol taken from him. One witness said "I held his arms down and told a girl to take the pistol and she put her foot on his arm and twisted the pistol out of his hand." This pistol was delivered to the sheriff of the county and was introduced in evidence at the trial. It was described as a "Police Special 38 Colt's."
The defense introduced only two witnesses, the embalmer and himself. The embalmer said the bullet entered the back of the left side of the victim, under the ribs, and ranged upward and lodged under the skin in the front of the body.
McLaurin testified that he was working at the Green Lantern, a cafe, located, it appears, next to, or near, Carr's place; that Hertisene Porter came to the Green Lantern prior to this tragedy, and there was some discussion between them about his paying for drinks, and someone by the name of Blue repaying him money. It is not clear from his testimony just what he meant. In any event, Hertisene went over to Carr's place and he says he followed. We give in his words what he said then happened:
"A. And she speaks out in front of the crowd, he was in this crowd, she told me to go on in and she would be in shortly, so I walked in and when I went in there was a crowd come in there with her, well they was in there and they said `Here is a Green Lantern man over here. We have spent a lot of money over there, let's make him buy us a drink.' I reached over to James Howard and asked him what did he have and he said a half pint of Blacklabel, `I will let you have it for $1.25.' So I told him to set it up, so I slapped the money up there so some of them says there is too many of us here for a half pint, buy a fifth. I told them I didn't have the money and they just kept on and the dead girl hadn't said anything. So presently she walked up and says `Why don't you buy a fifth?' so I says `When Blue comes and gives me my money I will have enough.' She felt of this pocket I had in it a few nickles and quarters, she felt them and I held that hand so she said there is some more and I pushed that hand back so she looked up at me and says `You are a cheap son-of-a-bitch.'
"Q. Let's pick that up about the money, that is the money had. How did you come to have all that? A. That is the money I had making change at the slot machine.
"Q. Would they count a certain amount of money to you and then you would have to turn in a certain amount of money when you checked out? A. Yes, sir.
"Q. This was money that belonged to the Green Lantern, is that right? A. Yes, sir.
"Q. All right, go on? A. When she said that she turned around and when she turned around somebody shoved me into her.
"Q. Do you know who that was that shoved you into her? A. I don't know who it was, so when they shoved me into her, she turned around and reached into her bosom, and I thought maybe she was going to get a knife, but she had a gun, and as I reached for the gun, I was hit back here on my shoulder, and I like to have dropped the gun; and then I was hit in the back of the head and everything just went dark.
"Q. Is that all you remember that happened that night? A. Yes, sir.
"Q. Do you know who did hit you? A. No, sir.
"Q. Do you know who pushed you? A. No, sir.
"Q. Do you know any man who was standing there and fired it? A. No, sir.
"Q. Did you have any gun that night on your person when you went in there? A. No, sir.
"Q. Did you have any gun at all on your person that night? A. No, sir."
The officer arrested him between four and five o'clock that morning in bed at the Green Lantern. He says he does not remember anything that happened from the time everything "went dark" until he was arrested.
Now, in that state of the proof the jurors, of course, had the right to believe the evidence of the several witnesses for the State in preference to the lone testimony of the defendant. Indeed, we are unable to understand how any jury could have decided otherwise. Having so decided the facts, appellant, angry at the time, and using a dealy weapon, purposely and designedly, shot his victim in the back when she was running from him, and, naturally, when she was making no hostile demonstration towards him, and when, according to the undisputed proof, she had no weapon, deadly or otherwise, on her person.
Section 2215, Code 1942, defines murder as: "The killing of a human being, without the authority of law, by any means or in any manner, shall be murder in the following cases:
"(a) When done with deliberate design to effect the death of the person killed, or of any human being;
"(b) When done in the commission of an act eminently dangerous to others, and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual."
No discussion, or citation of authority, is needed to demonstrate that under the evidence of the State, accepted by the jury, appellant was guilty of deliberate murder.
(Hn 1) But the main argument of appellant is that he could not be guilty of a greater crime than manslaughter because of the epithet, according to his testimony given above, applied to him by Hertisene Porter. In the first place, the jury had the right to disbelieve she used any such epithet. The entire story of appellant is far-fetched and rather unreasonable. In addition, while the State's witnesses did not specifically deny the epithet was used, their testimony negatives any such statement by Hertisene Porter. And, finally, this Court has held that mere words of reproach, however grievous or provoking, are ". . . not sufficient to reduce to manslaughter what otherwise is murder." Williams v. State, 199 Miss. 585, 26 So.2d 174; Richardson v. State, 123 Miss. 232, 85 So. 186. The State itself, by appropriate instructions, submitted to the jury for decision, in case it found appellant guilty of any crime, whether he was guilty of murder or manslaughter. It found him guilty of murder, and the evidence, on the merits of this question, amply justified the finding.
(Hn 2) Defendant requested, and refused, what is known as the falsus in uno, falsus in omnibus instruction. The court was correct in so doing. That instruction has been condemned by this Court. Wood v. State, 174 Miss. 499, 165 So. 123.
(Hn 3) The trial court granted the State this instruction: "The Court instructs the Jury for the State, that while it is true in this case as in all criminal cases, that the defendant is presumed to be innocent until proven guilty, and that this presumption of innocence goes with the defendant throughout the entire trial, until overcome by competent testimony and that while it is further true that the burden of proof in this case as in all criminal cases, is upon the State to satisfy the minds of the Jury, of the guilt of the defendant from the evidence, beyond reasonable doubt, yet the Court now says to you, that this presumption of innocence which the law throws around the defendant as a shield and safeguard, is not intended to shield from punishment anyone who is in fact guilty, but is simply a provision of the law to guard against the conviction of any innocent person, and the Court further says to you, that if you believe from all the evidence in this case, beyond a reasonable hypothesis, that the defendant is guilty as charged in the indictment, then it is your sworn duty to, `Guilty' by your verdict, regardless of the presumption of innocence and the further fact that the burden of proof is upon the State." This, in substance, is the same instruction given in Smith v. State, 161 Miss. 430, 137 So. 96. This Court there said the instruction embodies correct legal principles, but that it is complicated and might confuse the jury; that "The instruction is too smart." However, while not commending the instruction, the Court held it was not error to give it. We might add that in the case at bar the record discloses that the trial judge first granted to the State that instruction, but when he heard it read to the jury by the prosecuting attorney, he was doubtful of the advisability of giving it, and he then withdrew it, and the jurors did not have it before them in their deliberations. In addition, the defendant was granted eight instructions submitting to the jury his contention of non-guilt and the legal principles on which he based his contention. No error is here shown.
(Hn 4) The last contention of appellant is that the court erred in admitting certain testimony of one John White in rebuttal, after appellant had testified in the case. That came about in this manner: Appellant had testified, as will be seen from his evidence above, that he did not have a pistol, and he did not shoot anyone, but that he was hit on the head and became unconscious and did not know what happened thereafter. The witness White was a constable, and he arrested appellant while appellant was in bed at the Green Lantern between four and five o'clock in the morning. The witness White was asked if he told appellant, when he apprehended him, that he was under arrest. He said he did. He was asked what McLaurin said, and replied that McLaurin asked "For what?" and that he then told him he was being arrested for shooting "that negro woman." The trial judge, in response to objection to this testimony, said this evidence was admitted only for the purpose of contradicting the statement of McLaurin that after he claims to have been struck on the head during this melee that he had a complete lapse of memory, and did not know what happened thereafter. It did have bearing upon that question of fact and its admission was not error.
Affirmed, and Friday, November 26, 1948, is set for the date of execution.