Opinion
No. 38435.
May 12, 1952.
1. Criminal procedure — evidence — assault and battery with intent.
Where the version given by the victim of an alleged assault and battery with intent to kill, although only twelve years old but who from the course of his testimony showed that he was above ordinary intelligence and the details of his cross-examination were sufficient to demonstrate that he had not been coached, and was reasonable in the light of all the surrounding circumstances, and the version of the defendant that the injury was accidental was thoroughly unreasonable, taking into view also the severity of the injury and the indifferent attitude of the defendant immediately following, the verdict of guilty would not be disturbed.
2. Trials — rulings on offered evidence.
The proper practice in jury trials is that the judge shall rule positively one way or the other when the evidence is offered and the objection thereto is made, but this is not to be laid down as inflexible rule, there being several appropriate circumstances for an appropriate relaxation.
3. Criminal procedure — assault and battery — introduction of stick without identification.
In a prosecution for assault and battery with intent, the introduction in evidence of a large stick without showing that such stick was used in the assault is error, but when a stick was handed to the prosecuting witness and he said "that looks like it", to which the court sustained an objection, and instructed the jury to disregard the evidence about the stick, there was no error upon which a reversal could be based.
Headnotes as approved by Lee, J.
APPEAL from the circuit court of Copiah County; TOM P. BRADY, Judge.
Armstrong Hoffman, and Henley, Jones Woodliff, for appellant.
I. The testimony of Robert Stamps was highly unreasonable and improbable. Moore on Facts, Vol. 1, p. 183, 188; Texas New Orleans R. Co. v. East, et al., 57 S.W.2d 175.
II. Robert Stamps' injury was of such nature as to make it highly improbable as a matter of law that he had any recollection whatsoever of what occurred at the time of his injury. Taylor v. General Accident Ass. Corp., Ltd., 208 Pa. 439, 57 A. 830; Moore on Facts, Vol. 2, p. 184; Laidlaw v. Sage, 158 N.Y. 93, 52 N.E. 679; North Chicago St. R. Co. v. Fitzgibbons, 54 Ill. App. 385; New Jersey R. Co. v. Palmer, 33 N.J.L. 90; Gray's Attorneys' Textbook of Medicine, Vol. 1, par. 96.02, p. 932.
III. Robert Stamps' testimony was undependable and unreliable on account of his extreme youth. People v. O'Brien, N.Y.S., p. 812; Chesapeake Ohio R. Co. v. Boyd's Admr., 290 Ky. 9, 160 S.W.2d 342; Gray's Attorneys' Textbook of Medicine, Vol. 1, par. 96.16, p. 940; Moore on Facts, Vol. II, p. 914.
IV. The record in this case demonstrates conclusively that Robert Stamps had been coached and had memorized his testimony and that the defendant should not have been convicted on such testimony. Moore on Facts, Vol. II, par. 990, p. 1138; Health v. Hagan, 135 Iowa 495, 113 N.W. 342.
V. The verdict was contrary to the overwhelming evidence. Conway v. State, 177 Miss. 471, 171 So. 16; Heflin v. State, 178 So. 594; Upton v. State, 192 Miss. 339, 6 So.2d 129; Ashford v. State, 6 So.2d 471; Miller v. State, 198 Miss. 277, 22 So.2d 164.
VI. The testimony offered by the State with reference to the stick exhibited to the jury was highly prejudicial to the defendant's rights, and the subsequent exclusion of same by the court was not sufficient for one to say that the jury had not been materially influenced thereby. Warren v. State, 174 Miss. 63, 164 So. 234; Henley v. State, 202 Miss. 37, 30 So.2d 423.
W.M. Broome, and Joe T. Patterson, Assistant Attorney General, for appellee.
This case finds almost identical parallel in the recent case of McNally v. State, 56 So.2d 834, decided by this Court on February 18, 1952. In the McNally case, supra, the prosecuting witness was a nine year old girl, who, the proof showed, was also rendered unconscious as a result of the assault and battery, and remained in a semi-comatose condition for twenty-four hours after the assault and battery had occurred. In the McNally case, the same question was raised as is here raised, and in passing thereon this Court said, "Furthermore, the trial judge saw them and observed their manner of testifying and was in a better position than this court to determine their intelligence or lack of it, and the determination of their qualifications rested primarily with the trial judge. Anderson v. State, 199 Miss. 885, 25 So.2d 474. We find no error in the action of the court in permitting these witnesses to testify."
The only real question presented by the case at bar is whether the appellant herein wilfully and deliberately inflicted the injury upon the prosecuting witness, as testified to by said prosecuting witness, or whether the infliction of the injury was an accident, as testified to by appellant and his wife. This presented an issue of fact that was properly submitted to the jury, with proper instructions, as the record shows to have been done herein. Much has been said about the unreasonableness of the testimony of the prosecuting witness. Certainly, the physical facts as disclosed by this record corroborate the testimony of the prosecuting witness. It is argued that it is absurd to believe that the prosecuting witness would sit still on a woodpile after the appellant had said that he was going to kill him and had picked up a stick of wood and drawn same back to strike him, without running, or making some effort, to get out of the way of the appellant. The young prosecuting witness was questioned at length on this very point, and his reply thereto is a complete and sensible answer, "I did not think he was going to hit me. I had not been meddling with anybody." Certainly, this little boy had no reason to think that he had done anything that would justify the appellant in making a brutal assault upon him.
Appellant contends that the court committed reversible error in permitting a stick to be exhibited to the jury, and later excluding same from the evidence.
The record shows that the State attempted to identify a stick in evidence as the stick that was used by appellant in striking the prosecuting witness. The State failed in this attempt, and the court immediately instructed the jury to disregard such evidence, and further directed that the stick be taken out of the presence of the jury, to which the State readily agreed. Appellant did not request that the jury be retired while the State was attempting to identify the stick, therefore, the trial court cannot be held in error for having failed to do that which was not requested.
Charlie Will O'Quinn was convicted of an assault and battery with intent to kill and murder Robert Stamps. From a judgment and sentence of 7 years in the state penitentiary, he appeals.
The victim was 11 years of age when the assault occurred and 12 at the time of the trial. According to his version, on December 16, 1950, he went to the home of Boquet O'Quinn, where appellant lived, for the purpose of going rabbit hunting. He and several other small boys were at the woodpile about 15 feet from the house. The dogs got to fighting. Appellant came out of the house and said to Robert, "Boy, don't put them dogs to fighting". Robert replied, "I didn't have them fighting." The appellant then said, "You black s____ o____ b____, I will kill you." He thereupon picked up a stick, walked behind Robert, drew back, and struck him on the head. The blow not only knocked him unconscious but the boy remained in that condition for several weeks.
Robert's stepmother heard of the trouble and went to the scene in about 15 minutes. She found the boy, lying on the ground, bleeding from his nose. She saw the appellant in the house at the window, and went to get a quilt to lay the boy on the porch. But appellant would not let her in the house. A car was obtained, and the injured boy was carried to the Baptist Hospital where Dr. C.L. Neill examined and treated him. At that time the boy was unconscious, in a deep coma, and his lower extremities were paralyzed. There was a fracture which extended all the way around the skull, and at the top, the bone was driven in and against the brain. When his condition finally permitted, the depressed bone was lifted and a blood clot removed. The boy's injury was a serious and disabling one, and, in the doctor's opinion, he will never be any better than he was at the time of the trial.
The defense was that the injury arose from an accident. Appellant testified that he brought from the pasture, on his shoulder, a small pole that he intended to cut into wood. As he started to drop it at the woodpile, he stumbled and the pole fell on Robert. His wife hollered to him that the end of the pole tapped the boy. He did not know that the doy was near until his wife's outcry. The pole was 6 or 8 inches, but his evidence is confused as to whether it was such size in diameter or circumference. The dogs were not fighting. He admitted that he went in the the house without doing anything for the boy; and that it was about 10 or 15 minutes before the boy's stepmother came and picked him up. The sole excuse for failure to give aid or succor was fright — he was scared nearly to death. He said that Robert was standing and that the pole fell not over 2 or 3 feet. He could give no reason for the boy's telling a falsehood on him, as he said they had never had a cross word. Appellant's wife, who was in the house, corroborated his version. She said that they were both scared, and it was on that account that they did nothing by way of aid to the boy. She also said that the pole did not have much force when it struck. A brother saw appellant carrying the pole on his shoulder and saw him throw it down, but was too far away to see exactly what happened.
The little boys, who, according to Robert's statement, were present, were called as witnesses by the appellant. S.B. Stamps was found to be incompetent as a witness, and, by agreement, was withdrawn. Joe Louis O'Quinn, a nephew of appellant, testified that he was not present. Eddie C. Stamps, a cousin of the appellant, said that he was up the road, catching his dog, and that he did not see what happened; nor did he see any dogs fighting.
These boys were young. They were kin to the appellant; and their failure to corroborate Robert Stamps, does not, under the circumstances, necessitate the conclusion that his story was untrue.
Appellant contends that the nature of Robert Stamp's injury, his youth, and the possibility of his being coached stamp his evidence as unreasonable and improbable. (Hn 1) The boy's narrative of the events was clearcut and straightforward. The doctor's description of the fracture undoubtedly compelled the conclusion that terrific force was necessary to effect such a result. Obviously he could not remember events which occurred during the time he was in a coma. But there was no proof either that he sustained an impairment of his mental faculties or that he experienced a loss of memory as regards events prior to the injury. The appellant did not seek to elicit information on either of those subjects from the doctor, who is an expert. In fact, the appellant did not cross-examine the doctor at all.
The victim was 12 years old and in the fifth grade at the time of the trial. The judge determined, and was satisfied with, the boy's intelligence. Compare McNally v. State, Miss., 56 So.2d 834. Besides, he had the whole picture before him on the motion for a new trial. Suffice it to say, this boy was thoroughly grilled on cross-examination, and his answers indicate an intelligence quotient far above the average 12 year old Negro boy.
There was no proof that the boy was coached into telling his story. When appellant asked, on cross-examination, who told him to tell that story in court, he replied, "Nobody. That is what happened." His answers on such examination went into the most minute details and constitute irrefutable proof that his tale was not memorized.
Against the State's version, which the jury were well warranted in finding to be reasonable, the appellant contended that the pole fell only 2 or 3 feet and without much force. If it was only 6 or 8 inches in circumference, it seems impossible that such a direful result could have occurred; and if 6 or 8 inches in diameter, such a result was highly improbable. Besides, failing to administer relief after the claimed accident, leaving the boy where he had fallen, refusing to let him be brought into the house — such acts were sufficient to warrant the jury in believing that no accident had occurred, but that, on the other hand, the blow was struck out of a spirit of malice toward the victim.
Complaint is also made in connection with the effort of the State to introduce a stick as the one used in the assault.
The prosecuting witness was asked if he saw the stick with which appellant struck him. When a certain stick was handed to him, he said, "that looks like it". Objection was made and sustained. The court then stated that he would let counsel examine the witness, under a reserved ruling, to see if the stick could be identified. When there was no further effort in that direction, the court instructed the jury to disregard the evidence about the stick. He thereupon polled the jurors, and asked if they would obey his instructions. Each promised that he would.
In Warren v. State, 174 Miss. 63, 164 So. 234, 235, it was said that (Hn 2) "the proper practice in jury trials is that the judge shall rule positively one way or the other when the evidence is offered and the objection thereto is made." But it was also there said that "this, however, is not to be laid down as an inflexible rule, there being several appropriate circumstances for its reasonable relaxation." In Henley v. State, 202 Miss. 37, 30 So.2d 423, (Hn 3) the introduction of a large stick in evidence, in the absence of a showing that such stick was used in the assault, was held to be reversible error.
But, in this case, the stick was not admitted.
We do not see how this incident resulted in prejudice to the appellant.
The case has been thoroughly considered and we find no reversible error in the record.
Affirmed.
McGehee, C.J., and Alexander, Kyle and Ethridge, JJ., concur.