Summary
In Myers v. State, 167 Miss. 76, 147 So. 308, 309-10 (1933), the supreme court held that the trial court did not abuse its discretion in excluding testimony of the threat given eight to nine months before a murder because there was no evidence that the threat by the deceased and the ultimate homicide were connected.
Summary of this case from Brisco v. StateOpinion
No. 30126.
April 3, 1933. Suggestion of Error Overruled May 29, 1933.
1. CRIMINAL LAW.
Where evidence respecting prejudgment of homicide case was at most merely conflicting, refusal of change of venue was proper.
2. HOMICIDE.
Threat by deceased against accused in homicide case may be made at time too remote from act which it is offered to color to be of any evidential value.
3. HOMICIDE.
Burden is on accused in homicide case to establish that threat by deceased was not too remote to be of evidential value.
4. HOMICIDE.
In determining admissibility of threat by deceased against accused, doubts on question whether threat was too remote must be resolved against admissibility thereof.
5. HOMICIDE.
Evidence must disclose with reasonable certainty approximate date of making of threats by deceased against accused in homicide case for threats to be admissible.
6. HOMICIDE.
Alleged threat by deceased to kill accused, made over eight months before homicide, held properly excluded on ground of remoteness where during such period deceased and accused were in almost daily contact, living most of time under same roof.
7. CRIMINAL LAW.
If, when instructions are read together, applicable law correctly appears, no error has been committed in granting instructions, though one or more of them when separately considered present error.
8. CRIMINAL LAW.
Giving instruction for state held not error as misleading jury into believing that, if they found accused guilty of anything, it must be of murder, where instruction for accused submitted form of verdict for manslaughter.
9. JURY.
Juror who had paid one-half of his taxes on or before February 1, remaining half not being due under statute at time of murder trial, held, as respects payment of taxes, qualified juror (Gen. Laws 1931 [Ex. Sess.] chapter 24, section 1; Constitution 1890, section 241).
McGOWEN, COOK, and ETHRIDGE, JJ., dissenting.
APPEAL from Circuit Court of Yazoo County.
W.A. Henry, of Yazoo City, for appellant.
Our objection to instruction No. 2 is that it eliminates any doubt arising from the want of evidence and to No. 3 that it fails to instruct the jury in the event of a verdict of guilty that they could find a verdict of manslaughter.
Smith v. State, 137 So. 97; Allen v. State, 139 Miss. 605; Bowen v. State, 144 So. 230; Johnson v. State, 75 Miss. 675; 38 C.J. 83, sec. 262.
There should be a reversal on the ground that the change of venue was denied.
The facts in this case show that the defense exhausted its twelve peremptory challenges and was, therefore, forced to accept the last juror. At that time before accepting the jury, a motion was made renewing the request for a change of venue on the ground that the voir dire of the jury had proven in addition to the showing already made that the defendant could not get a fair and impartial trial.
The record shows that a distorted account of the homicide was published, that all the proceedings of the preliminary trial and the habeas corpus trial were published; that there was a great deal of publicity about the case and that it was talked of all over the county.
The court below committed prejudicial error in refusing to allow the defendant to show the vicious character of the deceased by attacks on his father and the circumstances under which the deceased bit off part of the defendant's ear.
State v. Wm. Moseley, 89 Miss. 802.
All of this testimony would have thrown considerable light on the state of mind of the defendant and of William Carr at the time of the final combat, and was particularly important in view of the fact that there was no actual eye witness to the killing. Mrs. Woodruff testified that in the fall of 1930 William Carr told her that he had bitten Myers' ear off and that the next time he was going to bite his jugular vein in two.
Lee v. State, 160 Miss. 618; Sixth Encyc. of Evidence 644.
Another ground for asking a reversal is found in the examination of the juror Woods. Mr. Woods testified that he had not paid all of his taxes before the first day of February. The constitution requires that only qualified electors be accepted on the jury.
Constitution of 1890, section 241.
The Legislature in its wisdom saw fit to extend the time of payment to meet the exigencies of the present distressing situation and we commend them for it, but their act in relieving a person of any damages on account of his failure to pay on February 1 in no way changed the constitutional requirement that he would be eligible for jury duty only where he paid all of his taxes before February 1. W.D. Conn, Jr., Assistant Attorney-General, for the state.
The jury has the right to believe portions of the testimony of each of the witnesses, rejecting other portions, and evidence which tends to establish murder or self defense will warrant a conviction for manslaughter, where the jury, by accepting portions of the testimony of each witness, might have so found.
Triplett case, 132 So. 448.
The state introduced some twenty-eight witnesses, twenty-seven of whom testified that there was no general prejudgment of the case and that there was nothing to prevent this defendant from obtaining a fair and impartial trial.
On conflicting evidence on application for a change of venue, the trial judge's decision will not be disturbed, unless manifestly wrong.
Wexler v. State, 142 So. 501; Jones v. State, 133 Miss. 684, 98 So. 150.
The threats were conditional and they were too remote to throw any light on the facts leading up to this homicide.
William Moseley v. State, 89 Miss. 802, 41 So. 384.
Chapter 24 of the General Laws of the state of Mississippi, Extraordinary Session of 1931, provides for the payment of ad valorem taxes in four quarterly installments, but provides that in the payment of ad valorem taxes for the year 1931 the first and second quarterly installments shall be due and payable on or before the first day of February, 1932. The juror Woods showed that he had paid the first half of his taxes on or before February 1, 1932. Such being the case he was in default for no taxes for the year 1931, because he had brought himself within the provisions of this act and he had paid all taxes which had been legally required of him prior to such date. J.G. Holmes, of Yazoo City, for the state.
Because the jury accepted the testimony for the state and rejected the contradictory and uncertain testimony of the appellant, is no reason for asserting that the appellant did not receive a fair and impartial trial. It was the province of the jury to pass upon the testimony, and we submit that their conclusion is the only conclusion which could honestly be drawn from the testimony as presented to them.
Instruction No. 2 charged the jury that in trying this case they should not hunt for doubts, etc. This instruction on more than one occasion has been before this court, and the court has declined to reverse therefor.
Smith v. State, 103 Miss. 356; Jones v. State, 130 Miss. 703; Harris v. State, 99 So. 754.
Irrespective of the distinction existing between the Allen case, 139 Miss. 605, and the Tatum case, 142 Miss. 110, the complete answer to the argument of counsel opposite with reference to the instruction No. 3 is that the jury in this case were expressly instructed that they might return a manslaughter verdict.
Grady v. State, 144 Miss. 778; Richardson v. State, 121 So. 284.
The granting of a change of venue is a matter so largely in the discretion of the trial court that a judgment of conviction will not be reversed on appeal on the ground that a change of venue has been refused unless it clearly appears that the trial court abused its discretion.
Dalton v. State, 141 Miss. 841.
Appellant sought by the witness Mrs. Woodruff to show that the deceased had made a threat against the appellant. The nature of the threat was an unconditional and uncommunicated threat, and was to the effect that if the appellant ever bothered him, the deceased, any more, that he, the deceased, would kill the appellant. The court declined to admit this testimony on the grounds that the so-called threat was too remote. We respectfully submit that this action of the court was proper.
In order to be a qualified juror so far as the question of taxes was concerned, the juror Woods was only required to pay on or before the first of February all taxes which may have been legally required of him and which he has had an opportunity to pay according to law. Under the legislative enactment permitting the payment of taxes in installments he was only legally required to pay such taxes as were due on or before the first of February. When he did this he met the legal requirements in so far as the payment of taxes was concerned with reference to his status as a qualified elector.
This is an appeal from a conviction of murder. The appellant's complaints are:
1. He should have been granted a change of venue.
2. The evidence is insufficient to support a conviction of guilty of anything; but, if mistaken in that, it is sufficient only to support a verdict of manslaughter.
3. The exclusion of evidence of a threat by the deceased to kill the appellant.
4. The granting and refusal of instructions.
5. The holding of an alleged disqualified juror to be competent.
The evidence as to the prejudgment of the case, at most, was merely conflicting, and abundantly supports the refusal to grant a change of venue.
On the evidence the guilt vel non of the appellant, and if guilty whether of murder or manslaughter, was clearly a question for the jury.
Bad feeling had existed between the deceased and the appellant for several years. About three years before the killing, they had a fight in which the deceased bit off a portion of the appellant's ear. A witness testified that she met the deceased when others were present, some of whom joked him about having bitten the appellant's ear, and that he said that he "bit his ear off. . . . He was trying to bite that jugular vein. . . . If he ever bothered him any more he would kill him. . . . He would bite that jugular vein the next time he bothered him." The witness was unable to state definitely when this conditional threat (the conditional feature of which will be laid on one side) was made. She placed the time as being either in the fall of 1929 or 1930, fixing it, during the course of her examination, sometimes as of one of these dates and sometimes as of the other.
A threat may be made at a time too remote from the act it is offered to color to be of any evidential value; and the burden is upon the one offering it in evidence to remove that element of inadmissibility. In determining that question doubts must be solved against the admissibility of the evidence; in other words, the evidence must disclose with reasonable certainty the approximate date of the making of the threat. But if we take the fall of 1930 as the date of the threat, it was made, if in September, more than eight months before the deceased was killed, during all of which time the appellant and the deceased were in almost daily contact, living most of the time under the same roof. The court below excluded this evidence on the ground of remoteness, and committed no error in so doing. Shaw v. State, 79 Miss. 21, 30 So. 42.
The rulings on the instructions complained of were unexceptional, only one of which will be here specifically noticed.
The third instruction for the state charged the jury, "if you find the defendant guilty, you may return either of the following verdicts," and then proceeds to set forth three forms of a verdict of "guilty as charged." The error alleged to appear therein is that it omits to permit the jury to return a verdict of manslaughter. If the instruction stood alone, it would come either under the condemnation of Allen v. State, 139 Miss. 605, 104 So. 353, or the approval of Tatum v. State, 142 Miss. 110, 107 So. 418, and in that event we would be called on to determine which of these cases should be followed. But it does not stand alone. By two other instructions the court submitted to the jury the question of the appellant's guilt vel non of manslaughter. As this court has many times decided, the separate instructions to a jury should be read together as if they were paragraphs of one instruction, and if, when so read, the law applicable to the issue to be tried correctly appears, no error has been committed in granting the instructions, although one or more of them when separately considered present error. When this rule is applied, the instruction as to the verdicts of guilty the jury could render would appear as follows:
The third instruction for the state:
"The court instructs the jury for the state that if you find the defendant guilty you may return either of the following verdicts.
"1. We the jury find the defendant guilty as charged, in which event it would be the duty of the court to sentence the defendant to be hanged; or,
"2. We the jury find the defendant guilty as charged and fix his punishment at imprisonment in the state penitentiary for life. In which event it would be the duty of the court to so sentence him; or,
"3. We the jury find the defendant guilty as charged, but cannot agree upon the punishment. In which event it would be the duty of the court to sentence him to the state penitentiary for life."
The first instruction for the appellant: "The court instructs the jury for the defendant that he is indicted in this cause for murder and the sole and only issue to be determined by the jury is whether or not he is guilty of manslaughter or murder or not guilty. . . ."
The fourth instruction for the appellant, after setting forth facts which, if believed by the jury, would render the appellant guilty of manslaughter, concludes as follows: "Your verdict will be, we, the jury, find the defendant guilty of manslaughter." The jury, therefore, could not have been misled into believing that if they found the defendant guilty of anything, it must be of murder.
One of the jurors accepted by the state, and tendered to the appellant, was challenged on the ground that he was not a qualified elector under section 241 of the Constitution, in that he had not paid on or before the first day of February preceding the trial "all taxes which may have been legally required of him, and which he has had an opportunity of paying according to law, for the two preceding years." The juror was held to be qualified, and was then challenged peremptorily by the appellant, who thereafter exhausted his peremptory challenges before the jury was finally impaneled. The juror on his voir dire said that he paid his taxes in conformity with the statute governing same then in force, chapter 24, Extraordinary Session of 1931; that is to say, he paid one-half of his taxes on or before the first day of February, 1932, the other half not being due under the statute at the time of the trial. The dates for the levy and collection of taxes are for the determination of the Legislature, and the taxpayer is in default in the payment thereof only when he fails to pay in accordance with the governing statute. Section 1 of chapter 24, Laws of Extraordinary Session 1931, provides that one-half of the ad valorem taxes for the year 1931 should be "due and payable on or before the 1st day of February, 1932," and one-half in two equal installments "on or before the first day of May," and the other "on or before the first day of August." The juror having complied with this statute, had paid all of the taxes legally required of him, and, therefore, was a qualified elector, and in so far as the payment of his taxes is concerned, was a qualified juror.
Affirmed.
I am of opinion that the third instruction given for the state constitutes reversible error as declared by this court in the cases of Johnson v. State, 75 Miss. 635, 23 So. 579, and Allen v. State, 139 Miss. 605, 101 So. 353. Tatum v. State, 142 Miss. 110, 107 So. 418, specifically recognizes, as I see it, the correctness of the rule announced in the Allen and Johnson cases, supra.
The giving of the first and fourth instructions for the defendant intensified the error and produced, when the instructions are read together, an irreconcilable conflict and left the jury without a guide.
Cook, J., joins in this dissent.
Ethridge, J., thinks the giving of the third instruction was error.