Opinion
No. 36592.
October 13, 1947.
1. CRIMINAL LAW.
Where defendant is only surviving witness to homicide, his version of what occurred must, if reasonable, be accepted as true unless substantially contradicted in material particulars by the physical facts or by facts of common knowledge, and it is not enough to contradict that version in mere matters of detail which do not go to controlling substance.
2. CRIMINAL LAW.
Conviction cannot be sustained on proof which amounts to no more than a possibility or even when it amounts to a probability, but it must rise to that height which will exclude every reasonable doubt.
3. CRIMINAL LAW.
Where State relies on circumstantial evidence in any essential respect, it must be such as to exclude every other reasonable hypothesis than that State's contention is true and, throughout, the burden of proof is on the State.
4. HOMICIDE.
Evidence was insufficient to present question for jury as to whether defendant was guilty either of murder or manslaughter, where defendant was only surviving witness of the shooting, and his testimony that he shot to protect himself from death or great bodily harm at hands of deceased was not substantially contradicted in material particulars by physical facts or by facts of common knowledge.
APPEAL from the circuit court of Franklin county. HON. R.E. BENNETT, J.
Hugh V. Wall, of Brookhaven, and C.F. Cowart, of Meadville, for appellant.
There was an application made for a continuance on the ground that the public mind was inflamed against the appellant and his brother, Albert, and the court convening so soon after the killing that the appellant could not get a fair and impartial trial should have been sustained.
The defendant was the only eyewitness. He testified fully with reference to the facts, and his testimony is reasonable on its face and it not contradicted in any material particular by any other witness of by the physical facts. His testimony is to the effect that he shot only in self-defense and to prevent the infliction of further severe bodily harm. The deceased was the aggressor throughout. There is no dispute as to this. Defendant's testimony is not in conflict with any physical fact, at least none is discernible from the record. In such case, the defendant was entitled to the peremptory instruction which he requested.
Weathersby v. State, 165 Miss. 207, 147 So. 481; Houston v. State, 117 Miss. 311, 78 So. 182; Patty v. State, 126 Miss. 94, 88 So. 498; Wesley v. State, 153 Miss. 357, 120 So. 918; Walters v. State, 153 Miss. 709, 122 So. 189; Gray v. State, 158 Miss. 266, 130 So. 150; Thornton v. State, 178 Miss. 304, 170 So. 541; Strahan v. State, 143 Miss. 519, 108 So. 502; Bowen v. State, 164 Miss. 225, 144 So. 230; Jones v. State (Miss.), 60 So. 735; Allen v. State, 88 Miss. 159, 40 So. 744; Jones v. State, 178 Miss. 636, 174 So. 546; Blackledge v. State, 157 Miss. 33, 127 So. 684; Grady v. State, 144 Miss. 778, 110 So. 225; Bedwell v. State, 130 Miss. 427, 94 So. 220; Henderson v. State (Miss.), 180 So. 89; Jarman v. State, 178 Miss. 103, 172 So. 869.
The defendant was the only eyewitness. He disclosed the facts surrounding the killing. In such case, an instruction on the presumption of malice is improper and the giving of it constitutes reversible error.
Batiste v. State, 165 Miss. 161, 147 So. 318; Winchester v. State, 163 Miss. 462, 142 So. 454; Smith v. State, 161 Miss. 430, 137 So. 96; Walker v. State, 146 Miss. 510, 112 So. 673; Walters v. State, 153 Miss. 709, 122 So. 189; Patty v. State, 126 Miss. 94, 88 So. 498; Durr v. State, 175 Miss. 797, 168 So. 65; Mask v. State, 36 Miss. 77; Lamar v. State, 63 Miss. 265; Raines v. State, 81 Miss. 489, 33 So. 19.
Presumptions in all cases yield to the facts. When the facts appear, presumptions disappear. The presumption arises only from the unexplained and deliberate use of a deadly weapon.
Johnson v. State, 140 Miss. 889, 105 So. 742; Riley v. State, 109 Miss. 286, 68 So. 250; Bennett v. State, 152 Miss. 728, 120 So. 837; Holmes v. State, 151 Miss. 702, 118 So. 431; Jackson v. State, 163 Miss. 235, 140 So. 683; Hardy v. State, 143 Miss. 352, 108 So. 727; Walker v. State, supra; Winchester v. State, supra.
No motive, other than self-defense, was shown for the killing. No malice, either express or implied, was shown, nor can it be inferred from all the evidence. There was no deliberation. Therefore the court should have taken the issue of murder away from the jury.
Butler v. State, 146 Miss. 505, 112 So. 685; Staiger v. State, 110 Miss. 557, 70 So. 690; Walker v. State, 188 Miss. 177, 189 So. 804.
It was improper to refuse the instruction on the disparity in size and strength of the appellant and the deceased.
Wright v. State, 162 Miss. 592, 139 So. 846; Springer v. State, 129 Miss. 589, 92 So. 633; Moore v. State, 144 Miss. 649, 110 So. 216; Pigott v. State, 107 Miss. 552, 65 So. 583; Bailey v. State, 202 Miss. 221, 31 So.2d 123.
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
An application for continuance rests largely in the discretion of the trial court and will not be reversed unless there was an abuse of discretion.
Richardson v. State, 153 Miss. 654, 121 So. 284; Code of 1942, Sec. 2518.
Where the testimony of eyewitnesses to a homicide makes out a case of self-defense, it is the right of the defendant to have a directed verdict. But, if the testimony of such witnesses is unreasonable, or is in conflict with physical facts or circumstances in evidence, it is a question to be submitted to the jury.
Brumfield v. State, 150 Miss. 552, 117 So. 529.
In determining propriety of refusal to direct verdict of not guilty, the evidence tending to prove guilt must be considered most favorable to the State, or, putting it differently, every material fact proved, either directly or by reasonable inference, tending to show defendant's guilt, must be taken as true.
Redwine v. State, 149 Miss. 741, 115 So. 889.
It is not indispensable that motive be shown in order to sustain a conviction of murder. Sometimes the motive may die with the dead man, or be locked up in the breast of the slayer.
House v. State, 94 Miss. 107, 48 So. 3.
Under the facts in this case, the jury were warranted in inferring the presence of malice from the use of the deadly weapon with which the mortal wound was inflicted.
Riley v. State, 109 Miss. 286, 68 So. 250.
The deliberate design to effect the death of another may be formed in an instant. There is no particular measure of time necessary for its formation.
Johnson v. State, 140 Miss. 889, 105 So. 742.
Where the evidence fully discloses circumstances surrounding alleged assault to kill, an instruction that the law presumes malice from the use of a deadly weapon is erroneous, but not reversible error, where the evidence was abundant or overwhelming in establishing guilt or where it was cured by other instructions.
Harris v. State, 175 Miss. 1, 166 So. 392; Smith v. State (Miss.), 6 So.2d 134; Bridges v. State, 197 Miss. 527, 19 So.2d 738.
The appellant contends that the court erred in refusing the following instruction requested by the defendant: "The Court instructs the jury that if Mr. Walker was a stronger man than the defendant, and that if there was a great difference in their physical conditions, so that Mr. Walker was much the physical superior of the Defendant, so much so that the Defendant was wholly and absolutely incapable of combat with him in a physical combat and was liable to receive serious and great bodily harm at the hands of Mr. Walker in the event that they became engaged in such combat then the Defendant was justified in using a deadly weapon to protect himself from an unjustifiable attack of Walker even though Mr. Walker was wholly unarmed and the Defendant was in no danger from him except such as might be inflicted by Mr. Walker with his hands or feet." The refusal of this instruction could not be error for the reason that the court had already granted the appellant four instructions, which instructions were liberal and which fully covered the principle involved.
See Bailey v. State, 202 Miss. 221, 31 So.2d 123; Cook v. State, 194 Miss. 467, 12 So.2d 137, 138; Blaine v. State, 196 Miss. 603, 17 So.2d 549.
Argued orally by Hugh V. Wall, for appellant, and by R.O. Arrington, for appellee.
Appellant was indicted jointly with his brother, Albert Westbrook, for the murder of Paul Walker. A severance was had, and on the separate trial of appellant, hereinafter called the defendant, he was convicted.
The testimony on the part of the prosecution as well as that of the defendant, looking to the entire record, shows overwhelmingly that only two persons took part in the difficulty, the deceased being one of them, of course; and it is undisputed that only one shot was fired. Other than the two participants, the mail carrier was the only person who saw any part of the difficulty or who was near enough at the time to say dependably what happened in it. He says that he was approaching, and that as he came over the hill he saw two men tusseling in the road about 75 or 100 feet from the mailbox. He thought they were boys tusseling in the road, and that he stopped at the mailbox and gave no further attention to the two men until he had finished his duties at the mailbox and had reached the point where the men were, and there he noticed that they had separated and that one of them was staggering as if drunk, and because he feared the staggering man might get in the path of his car, he centered his attention solely on him and as he got to the man he saw that it was Walker. He did not notice and did not recognize the other party. He says he did not see any shooting and did not hear the sound of it. Other than that two persons were present and that he saw them tusseling in the road, the testimony of the mail carrier touches substantially no disputed point material to the case.
It is undisputed that defendant was beaten and bruised about the face and head, and it is undisputed that this was done by the deceased. It is undisputed that in the fight, so called, defendant's glasses were broken and it is undisputed that when the sheriff arrived and made his investigation at the scene, he picked up one of the lenses of the glasses in the road at point A later to be more particularly mentioned.
Two neighbors who lived about 100 yards from the scene, as they estimate it, but about a quarter of a mile according to other witnesses, arrived upon it almost immediately. They testified that only one person other than the wounded man was there. They further said, however, that the other person was Albert Westbrook and that the defendant was not there. Inasmuch as the undisputed physical facts demonstrate beyond all doubt that defendant was there and inasmuch as there was present only one person other than the deceased, the conclusion is inescapable that the two neighbors in their excitement mistook defendant for his brother Albert, as well may have been because the defendant who wore glasses was then without them and was several yards away, and because defendant at the time lived about twenty miles away and the two witnesses did not know that he had returned the night before on a visit. At any rate, Albert Westbrook was not there and had nothing whatever to do with the difficulty, according to the four corners of this record.
Inasmuch, then, as defendant was the only person present other than deceased, he was the only surviving person who knew the facts of the difficulty. As already stated, the mail carrier passed along the scene, but his testimony does not in any substantial particular displace or dispute the testimony of the defendant.
It has been firmly established by a long line of decisions in this state, of which Weathersby v. State, 165 Miss. 207, 147 So. 481, is typical, that where the defendant is the only surviving witness to a homicide his version of what occurred must, if reasonable, be accepted as true unless substantially contradicted in material particulars by the physical facts or by the facts of common knowledge, and that it is not enough to contradict that version in mere matters of detail which do not go to the controlling substance. It is fundamental that convictions of crime cannot be sustained on proof which amounts to no more than a possibility or even when it amounts to a probablity, but it must rise to that height which will exclude every reasonable doubt; that when in any essential respect the state relies on circumstantial evidence, it must be such as to exclude every other reasonable hypothesis than that the contention of the state is true, and that throughout the burden of proof is on the state. It is our duty here to maintain these principles.
The car now to be mentioned was parked in front of an unoccupied store building and between that building and the road "just over the edge of the road" with "just room for a car to be parked there for the passenger to come around in the road," to quote a State's witness who was the only witness who located the car with that much precision.
The version of the defendant is that the controversy began as a matter of actual hostility when the deceased approached the car in which the defendant was sitting but with one foot over on the ground, and that when he saw it was the purpose of the deceased to make an actual physical attack upon him, he, the defendant, moved from his position in retreat in a direction somewhat towards that to which the front of the car was pointing, and that he had reached a point estimated by him to be about 20 feet from the car when the deceased actually struck him. This direction and this distance, according to the diagram introduced by the State and verified by the sheriff, would take the participants into and across the road and within about 5 feet of the point of the triangle shown on the diagram. All the testimony agrees that there were signs of a scuffle very near the point of this triangle, and it was at this point, which we will call point A, that the lens from defendant's glasses was picked up by the sheriff.
Apparently, however, it was the theory of the prosecution that the actual difficulty began at a point where there were signs of another scuffle some seven steps from the place at point A, first above mentioned. We will call this other place point B. It was approximately twelve steps across the road and on what is called the east side thereof directly opposite the rear end of the car, and was near where the tracks of the deceased showed that he turned around or turned back. And as we gather from the trend of the cross-examination of the defendant, it was the purpose of the prosecution to argue in the trial that the defendant had armed himself and had waited until the deceased came along with the design on the part of the defendant to provoke a difficulty with the deceased and to use the weapon in the difficulty thus provoked.
It is enough to say that the above as a hypothesis is infected with at least two infirmities: First, the lens was not found there; and second, the aggressor would have cut the deceased down on the first blow received instead of waiting to be beaten all around the ground — there would never have been another scuffling point. But more important still is the consideration that if the prosecution was to rely, as it must rely, on the circumstantial evidence that actual hostilities began at point B, it was not enough to show that it possibly or even probably began there, but the circumstantial evidence thereof must have been so completely conclusive as to have excluded every other reasonable hypothesis — under the principles which we have heretofore stated. In this there was a manifest failure to sustain the prosecution's contention or theory, and a failure to make out the State's case unless we may say that accepting the defendant's version as true, it presents a question whether he might still be convicted of manslaughter.
It is undisputed that the defendant had the use only of his left arm and hand, his right arm being paralyzed or useless as the result of an injury received forty odd years ago, and it is beyond question that this was known to the deceased who had theretofore been a neighbor of defendant and well acquainted with him for several years.
The deceased was a young man twenty-seven years of age, more than six feet tall and just back from the army. Defendant's version, which must stand as true as already pointed out, is that the deceased persistently, violently, and without provocation assaulted defendant, repeatedly knocking him down as deceased pursued him, rendering him further helpless by knocking off and breaking his glasses, and that defendant was down on his knees with the deceased still about to be upon him again when defendant fired upon him, striking him at or near the belt of his trousers. The case, then, is on all-fours with Cook v. State, 194 Miss. 467, 12 So.2d 137, 138, and it is necessary to do no more than to quote as follows from the concluding paragraph of that opinion: "The appellant was suddenly, violently and without provocation assaulted by the deceased, who rapidly and continuously struck him with such force as to knock him down twice and to daze him. Because of his age compared with that of the deceased, and the fact that he could use but one hand in defending himself, the appellant was practically at the mercy of his assailant and the only thing he could do to protect himself from the great bodily harm that seemed to be about to be inflicted on him was to secure and use for that purpose the knife that he had in his pocket."
In that case the verdict and judgment was reversed and the appellant discharged. We follow it and do the like in this case.
Reversed and appellant discharged.