Opinion
No. 32789.
June 14, 1937.
1. CRIMINAL LAW.
In murder prosecution, testimony that defendant's niece stated that she destroyed letter allegedly written to her by defendant while in jail held properly excluded as hearsay.
2. CRIMINAL LAW.
In murder prosecution, introduction of secondary evidence of contents of letter written to his niece by defendant while in jail held reversible error where there was no proof of loss of original.
3. HOMICIDE.
In murder prosecution, exclusion of testimony that deceased had made numerous enemies, offered to show that others had motive for killing deceased, held not error.
4. CRIMINAL LAW.
Credibility of witness, as well as weight to be given his testimony, was for jury.
5. CRIMINAL LAW.
In murder prosecution, alleged error in failing to charge in one instruction that circumstantial evidence to warrant conviction must exclude every reasonable hypothesis except that of accused's guilt was cured by four instructions granted to defendant containing correct charge on such matter.
APPEAL from circuit court of Union county. HON. T.H. McELROY. Judge.
Chas. Lee Crum, of New Albany, for appellant.
The appellant in the trial undertook to show by facts connected with the dealings of appellant and deceased up to the time of the killing that the appellant and deceased were good friends. All of this line of testimony was uniformly excluded by the court and kept from the jury, which was a grievous error.
The instruction requested under Assignment V should have been given and not refused; for if it was reasonably probable from all the evidence that some one else killed Coleman, then it would be reasonably probable from the evidence that defendant did not kill him, and there was a reasonable doubt of the guilt of the defendant, and the jury should specifically have been instructed to give defendant the benefit of such doubt and acquit. It was reversible error in the court below to exclude this evidence and reversible error to refuse this instruction, which went to the crux of the defense.
Hardy v. State, 172 So. 131; Warren v. State, 166 Miss. 284.
It does not help a defendant before a jury that has to pass on his guilt or innocence to argue that instructions given for the defendant qualify, or modify those given for the state in the case, when the district attorney has the closing argument and the privilege of picking this instruction out in his closing argument and saying to the jury: "You do not have to actually know the defendant is guilty to convict him."
The evidence of the conduct of Dewey Hall, city Marshall of New Albany and State's witness, and his rehearsal of a conversation with Lena Snider, a niece of defendant, but not a witness in this case, all as related by Dewey Hall himself, and all of which occurred in the absence of the defendant, is flagrantly incompetent, and in view of his statement that Lena Snider was a niece of defendant, was highly prejudicial to appellant before the jury, and for this error this case should be reversed.
Then, to make this evidence more harmful and to further the effect of the error, the court refused the instruction asked by the defendant announcing the law, that the testimony of detectives and informers and persons specially employed or engaged to hunt up evidence against defendant should be considered by the jury with greater care than that of witnesses wholly disinterested.
The court below, over the objection of defendant, permitted M.S. Hall to testify as to such parts of the letter handed him by Sam Farris, not written or signed by defendant (for defendant is shown to be unable to write or read writing) as the witness said he remembered, while stating at the time he could not remember all that was in the letter. This was fatal error in several particulars: First, it was shown that defendant did not write the letter, and no one swore he did, and it was further shown that he could not read writing; Second, that it was not signed by defendant or any one else, and was not shown to have been the product of defendant, or that defendant ever knew its contents; Third, that defendant's connection with the letter, even remotely, was shown to rest entirely on incompetent testimony, hearsay evidence, between Sam Farris and Isaac Bowen, which the court had excluded, after admitting it over the objection of the defendant; Fourth, that the letter was not addressed to "Lena Snider," but only to some one named "Lena"; Fifth, that M.S. Hall could not remember all the contents of the letter, and the relating of only a part of it without being able to relate other qualifying parts that he did not remember, would reasonably change the whole import of the meaning; Sixth, M.S. Hall appeared to have been an unusually "willing witness" for the prosecution, yet, over the insistent objection of counsel for defendant, the court permitted the district attorney to "lead" this witness, that is, ask him questions suggesting the answers. All these things were errors, prejudicial to the defendant, incompetent testimony, unlawful evidence and highly prejudicial to defendant.
The testimony of Sam Farris with reference to Isaac Bowen handing him a letter unsigned, and what the negro told him to do with the letter, in the absence of the defendant, was objected to and should never have gone to the jury, and its exclusion by the court, after the jury had heard it, could not erase from the minds of the jury what had improperly gone to them. But with this testimony excluded by the court, the testimony of M.S. Hall was rendered additionally incompetent and harmful to defendant.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
In appellant's brief it seems that he takes exceptions to the reasons given by the trial judge in sustaining objections to certain testimony. So far as this court is concerned it can make no possible difference whether the trial judge gave the right or wrong reason for his ruling or whether he gave an insufficient or no reason for it. If the right result has been reached, there is nothing of which the appellant can complain here.
Tucker v. State, 103 Miss. 117, 60 So. 65; Carter v. State, 167 Miss. 331, 145 So. 739.
It is a familiar rule of that law before a trial court is warranted in giving an instruction it must not only state a rule of law correctly, but it must have some application to the facts developed by the trial. In other words, the instruction may state a correct rule of law, but if there are no facts to support it, it is imminently proper for the court to refuse it.
It is a familiar rule of law that all the instructions in a criminal case must be construed together. The instructions for the defendant supplement those of the state and vice versa. If there is no irreconcilable conflict in the instructions and they, as a whole, correctly state the law, there is no error in the giving of any particular instruction.
Williams v. State, 160 Miss. 485, 135 So. 210.
It is a rule of this court that where some error is present in both the state's and defendant's instructions, there is nothing of which the defendant can complain. Or, if the instructions for both the state and the defendant omit like provisions, there is no error of which the appellant can complain in this court.
Ivey v. State, 154 Miss. 60, 119 So. 507; Renfrow v. State, 154 Miss. 523, 122 So. 750; Hinton v. State, 129 Miss. 226, 91 So. 897.
Appellant was convicted in the circuit court of Union county of the murder of J.W. Coleman; and from this conviction and a sentence to life imprisonment in the state penitentiary, this appeal was prosecuted.
The deceased was assassinated, in the nighttime, while he was seated in the office of the depot of the Gulf, Mobile, Northern Railroad Company, at New Albany, Miss., having been shot through a glass window. The physical facts and evidence clearly indicated that when the assassin fired the fatal shot he was standing near the north end of a platform located a few feet east of the window through which the shot was fired. The conviction rests largely upon circumstantial evidence; but, in addition, there was offered an incriminating letter alleged to have been forwarded by the appellant from the jail in which he was incarcerated, to his niece, and certain incriminating statements of the appellant.
The letter above referred to, the purported contents of which were offered in evidence, was an attempt to fabricate testimony, and, no doubt, was very damaging to appellant's cause. The proof tended to show that while the appellant was confined in a jail some distance from his home county, in which the homicide occurred, he delivered this letter to a person who worked at the jail, for delivery to a third person with instructions to deliver it to appellant's niece. When the letter reached the hands of the above-mentioned third party, it was opened and read, and a copy thereof was made; and thereafter it was delivered to appellant's niece in accordance with instructions. To prove the loss of this letter, the state offered the testimony of the marshal of the town of New Albany to the effect that he went to the home of appellant's niece for the purpose of procuring the letter, and that this woman told him she had destroyed it, and for that reason he did not make any particular search for it.
The alleged recipient of this letter was not offered as a witness to show the loss or destruction thereof, and what she may have said about it to another was purely hearsay and inadmissible, and the court correctly excluded the statement of the witness as to what the woman said about destroying the letter. But the introduction of secondary evidence of the contents of the letter was permitted, without any further showing as to the loss of the original. The copy of this letter, which was alleged to have been made before it was delivered to the addressee, was not offered in evidence for the reason that the person who made the purported copy was dead, and the correctness thereof could not be proved, and the secondary evidence as to the contents of the alleged letter should have been excluded for the reason that the loss or destruction of the original thereof was not shown.
Appellant complains of the exclusion of testimony tending to show that, during his long service as an officer of the law, the deceased had made numerous enemies; that he had been shot at by one or more persons in attempting to make arrests, and that he had killed one man while so engaged. Counsel argues that this testimony was admissible for the purpose of showing that others had the motive, purpose, and opportunity to kill deceased; but he has cited, and we know of, no authority for the admission of such evidence.
In Wharton's Criminal Evidence, vol. I, par. 274, it is said that: "The accused cannot prove that another person had a motive for committing the crime, or show, by mere inference, that some other person had the means or opportunity to commit it. The accused cannot prove by hearsay that another person committed the crime, as by testimony of witnesses who heard another admit that he committed the offense. It has been said that evidence incriminating another must relate to the res gestae, or directly connect the other person with the corpus delicti. In any event, before such testimony can be received, there must be such proof of connection with the crime or such a train of facts or circumstances as tends to point out someone other than the accused as the guilty party. Remote acts, disconnected from and outside of the crime itself, cannot be separately proved for such a purpose."
In the case of Lindsay v. State, 69 Fla. 641, 68 So. 932, 933, it was held that: "It is no defense on the part of one charged with crime to show merely that another person possessed the means or opportunity to commit the offense."
In State v. Caviness, 40 Idaho, 500, 235 P. 890, 892, it is said: "This proof was offered upon the theory that it was within the right of appellant to show that some one other than himself committed the crime. It is well established that, before such testimony can be received, there must be such proof of connection with the crime, such a train of facts or circumstances, as tend clearly to point out some one besides the accused as the guilty party. Remote acts, disconnected and outside of the crime itself, cannot be separately proved for such a purpose." Again in State v. Moon, 20 Idaho, 202, 117 P. 757, Ann. Cas. 1913A, 724, it was held that: "A defendant in a criminal trial is not permitted by way of defense to show by conjectural inferences that some other person might have committed the offense for which he is on trial, or that some person other than himself is more probably guilty."
Appellant argues at length that he was in some way prejudiced by the action of the court in reference to the admission of the testimony of one whom he denominates as a "surprise witness." The record discloses nothing out of the ordinary course in the introduction of this witness, and no action of the court in reference to his testimony of which the appellant can complain. After the witness had concluded his testimony, the record shows that counsel for the appellant requested time to make a sketch or drawing of the scene of the homicide, and to make some investigation in reference to matters testified to by the witness; that the court offered to grant some time for this purpose; and that thereupon the state tendered the appellant a drawing or sketch of the scene, which he accepted as satisfactory. This witness testified that, as he passed near the depot shortly before the killing, he saw the appellant standing near the north end of the above-mentioned platform with a shotgun in his hand; and while there was some testimony to the effect that on account of physical conditions, it was impossible for this witness to have seen any one at the point, and from the position, indicated by him, he was corroborated by two witnesses as to his ability to see and observe the facts to which he testified. The credibility of the witness, as well as the weight to be given his testimony, was the province of the jury.
There was no reversible error in the granting of the refusal of instructions. It is contended that one of the state's instructions was erroneous in that it omitted to charge that, in order to warrant a conviction on circumstantial evidence, such evidence must exclude every reasonable hypothesis except that of the guilt of the accused. This error was abundantly cured by four instructions granted to the appellant, which over and over correctly charged the jury as to the degree of proof required to sustain a conviction based upon circumstantial evidence.
For the error indicated above in admitting secondary evidence as to the contents of the letter alleged to have been forwarded by appellant to his niece, the judgment of the court below will be reversed and the cause remanded.
Reversed and remanded.