Opinion
No. 39713.
June 13, 1955.
1. Criminal law — defendant only eyewitness rule — not applicable under evidence.
In murder prosecution, evidence was sufficient to preclude application of rule that where defendant or defendant's witnesses are only eyewitnesses to homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness, or witnesses for State, or by physical facts or facts of common knowledge.
2. Criminal law — juries — witnesses.
Jury is under no compulsion to believe implicity all statements of party acknowledging killing of a deceased person.
3. Criminal law — photographs — scene of crime.
In murder prosecution, photographs which were not pictures of living people but were pictures of scene of crime were properly admitted in evidence.
4. Criminal law — photographs — admissibility.
Photographs, whether original or copies, are admissible as primary evidence upon same grounds and for same purposes as are diagrams, maps, and drawings of objects or places, and photographs of the scene of a crime need not show all premises if they show the material part.
5. Homicide — murder or justification — instruction — deliberate use of deadly weapon — not prejudicial error.
In murder prosecution, wherein all facts and circumstances of the killing were fully given in evidence and defendant admitted deliberately killing deceased in order to protect his own life, so that issue was murder or justification, giving of instruction that deliberate use of deadly weapon in a difficulty, not in necessary self-defense, is in law evidence of malice, was error, but was not, under facts of case, prejudicial.
6. Murder — conviction sustained.
Evidence sustained conviction for murder.
Headnotes as approved by Arrington, J.
APPEAL from the Circuit Court of Jones County; F. BURKITT COLLINS, Judge.
Melvin, Melvin Melvin, Laurel, for appellant.
I. The Court erred in permitting the testimony introduced by the State as to the character of the appellant. This testimony was not objected to by appellant. It is true that appellant put his character in issue, and was at the time ready to meet any issue on the question of his character, but in this testimony the names of two parties were called that appellant did not know would be brought into the issue until the witnesses testified for the State. This testimony was introduced by the State late on the afternoon of the closing day of the trial. If the Court had continued the trial until the next morning, the appellant could have contacted the parties named and would have been ready for trial the next morning at nine o'clock, usual time for opening of Court. It is the contention of the appellant that for the Court to refuse to continue the hearing until the next day was an unwarranted abuse of the Court's discretion, and was highly prejudicial to the rights of the appellant.
II. The Court erred in admitting in evidence, over the objection of the appellant, a demonstration of the witness as to the activities of the appellant after the homicide.
III. The Court erred in refusing to permit the appellant to cross-question the witness Hiram Fairchild after the witness had changed the direction on the diagram when discussing the scene of the shooting, and refusing to permit appellant to make his record in said matter.
IV. The Court erred in granting to the State the following instruction: "The Court instructs the jury for the State, that the deliberate use of a deadly weapon in any difficulty, not in necessary self-defense, is in law evidence of malice." Baleste v. State, 165 Miss. 161, 147 So. 318; Batiste v. State, 165 Miss. 161, 147 So. 318; Bester v. State, 212 Miss. 641, 55 So.2d 379; Bridges v. State, 19 So. 738; Busby v. State, 177 Miss. 68, 170 So. 140; Coleman v. State, 59 Miss. 484; Crowell v. State, 195 Miss. 427, 15 So.2d 508; Cumberland v. State, 110 Miss. 521, 70 So. 695; Dickins v. State, 208 Miss. 69, 43 So.2d 366; Done v. State, 202 Miss. 418, 32 So.2d 206; Fore v. State, 75 Miss. 727, 23 So. 710; Hammond v. State, 74 Miss. 214, 21 So. 149; Hartfield v. State, 176 Miss. 776, 170 So. 531; Howard v. State, 182 Miss. 27, 181 So. 525; Hughes v. State, 207 Miss. 594, 42 So.2d 805; Kerney v. State, 8 So. 293; Knight v. State, 215 Miss. 251, 60 So.2d 638; Lamar v. State, 63 Miss. 261; Lucas v. State, 109 Miss. 82, 67 So. 851; Marble v. State, 194 Miss. 386, 15 So.2d 693; Pettus v. State, 200 Miss. 397, 27 So.2d 536; Ray v. State, 59 So.2d 582; Smith v. State, 161 Miss. 430, 137 So. 96; Tullos v. State (Miss.), 75 So.2d 257; Walker v. State, 146 Miss. 510, 112 So. 673; Watkins v. Prudential Ins. Co., 95 A.L.R. 869; Welch v. State, 110 Miss. 147, 69 So. 770; Wicker v. State, 107 Miss. 690, 65 So. 885; Winchester v. State, 163 Miss. 462, 142 So. 454; Worth v. Worth, 103 A.L.R. 107; Sec. 1530, Code 1942.
V. The State was not entitled to the instruction on murder and if the appellant was not entitled to a directed verdict as requested by appellant, then the State was only entitled to an instruction on manslaughter, not only defining manslaughter but informing the jury the penalty inflicted by law in case they should find the appellant guilty of manslaughter.
VI. The Court erred in admitting the pictures introduced by the State. The Court first introduced hearsay evidence over the objection of the appellant and then later introduced the pictures, over the objection of the appellant, and the testimony of the photographer plainly showed that at least two of the pictures were distorted by the camera as to give a distorted view of the scene. Brett v. State, 94 Miss. 669, 47 So. 781; Buie v. State, 217 Miss. 695, 64 So.2d 897; Fore v. State, supra; Martin v. State, 217 Miss. 506, 64 So.2d 629.
VII. The Court erred in refusing to the appellant the peremptory instruction requested by the appellant at the close of the State's case.
VIII. The Court erred in refusing to grant to the appellant the peremptory instruction, requesting the Court to instruct the jury to find the appellant not guilty at the close of all of the testimony.
Collation of authorities: Bell v. State, 207 Miss. 518, 42 So.2d 728; Bowen v. State, 164 Miss. 225, 144 So. 230; Cook v. State, 194 Miss. 467, 12 So.2d 137; Done v. State, supra; Gray v. State, 158 Miss. 266, 130 So. 150; Houston v. State, 117 Miss. 311, 78 So. 182; Hunt v. State, 108 Miss. 588, 67 So. 57: Lomax v. State, 205 Miss. 635, 39 So.2d 267; Patty v. State, 126 Miss. 94, 88 So. 498; Seals v. State, 208 Miss. 236, 44 So.2d 61; Simmons v. State, 208 Miss. 586, 45 So.2d 149; Walters v. State, 153 Miss. 709, 122 So. 189; Weathersby v. State, 165 Miss. 207, 147 So. 481; Wesley v. State, 153 Miss. 357, 120 So. 918; Westbrook v. State, 202 Miss. 426, 32 So.2d 251.
IX. The verdict of the jury is contrary to the law and the evidence in the case.
X. The verdict of the jury is contrary to and against the weight of evidence in the case.
XI. The evidence shows from all of the eyewitnesses a clear-cut case of self-defense, and therefore the verdict of the jury and judgment of Court are clearly against the weight of evidence and law in the case.
XII. Taking into consideration all of the evidence of both the State and appellant, the evidence fails to make out a case of murder, and if appellant is guilty of anything and any crime, it would be manslaughter under the law.
Collation of authorities: Anderson v. State, 199 Miss. 885, 25 So.2d 474; Johnson v. State (Miss.), 77 So.2d 824; Leflore v. State (Miss.), 44 So.2d 393; Willette v. State, 219 Miss. 793, 69 So.2d 407.
Joe T. Patterson, Asst. Atty. Gen., Jackson, for appellee.
I. It is first contended that the Trial Court erred in permitting testimony introduced by the State as to the character of the appellant. The evidence complained of is the testimony offered by the State in rebuttal, after the appellant had rested his case, consisting of four witnesses who testified that they knew of the appellant's general reputation for peace and violence, and that same was bad. This testimony was properly admitted, in view of the fact that the appellant had placed his character in issue and had offered ten witnesses, all of whom testified that his reputation for peace and violence was good. It is admitted in appellant's brief that this testimony was not objected to by appellant; however, if appellant had objected to this testimony, the Court would have properly overruled same.
II. Appellant further contends that the Trial Court should have continued the case until the following day, in order that the appellant may have been afforded an opportunity to summon witnesses to contradict the State witnesses, who had testified that appellant's reputation for peace and violence was bad. Such refusal by the Trial Court was not an abuse of discretion. It is obvious from this record that the trial of this case had consumed several days, and that the appellant had been afforded an opportunity to present his defense at length. When the appellant offered ten witnesses who testified that his reputation for peace and violence was good, he then placed his character in issue and should have anticipated the possibility of witnesses appearing and testifying to the contrary. After all, it is not a matter of last say, and a Trial Court would make a serious mistake if the Court followed the practice of permitting either the State or the defendant to prolong a trial in order for them to go out in search of witnesses who might dispute what other witnesses say. The ten defense witnesses who testified to the good character of appellant had already contradicted what the four State witnesses, offered in rebuttal, had to say with reference to same; and, therefore, appellant's reputation for peace and violence presented an issue of fact to be considered by the jury along with all of the other testimony in the case.
III. Appellant's second contention is that the Trial Court erred in granting the State's instruction, which reads as follows: "The Court instructs the jury for the State that the deliberate use of a deadly weapon in any difficulty, not in necessary self-defense, is in law evidence of malice." This instruction was properly granted the State in view of the instructions granted the appellant. Hughes v. State, 207 Miss. 594, 42 So.2d 805; Jackson v. State, 218 Miss. 598, 67 So.2d 520; Vol. II, Alexander's Miss. Jury Instructions, Sec. 3148.
IV. Appellant's third contention is that the Trial Court erred in granting the State's instructions appearing on pages 10 and 11 of the record. The instruction on page 10 of the record is the usual form of instruction on murder, setting forth the three verdicts that may be returned by the jury in the event they found appellant guilty of murder, and instructing the jury as to their prerogative in fixing the punishment. It is contended that the instruction fails to define murder; however, we call the Court's attention to the State's instruction appearing on page 9 of the record, which instructed the jury that if they believed beyond a reasonable doubt that the defendant "did willfully, unlawfully, feloniously, and of his malice aforethought kill and murder Lee Smith, a human being, then it is your sworn duty to find defendant guilty." The instruction complained of also instructed the jury that if they, "believe from the evidence beyond all reasonable doubt that the defendant is guilty as charged in the indictment, to wit, of murder, they may return either of the following verdicts . . ." The instruction complained of, appearing on page 11 of the record, was requested by the State. This instruction defines manslaughter and authorized the jury to find the appellant guilty of manslaughter. Appellant contends that the State should have requested an instruction defining the penalty to be inflicted upon the appellant in the event the jury found him guilty of manslaughter. An instruction defining the penalty to be inflicted in the event of a conviction of manslaughter would have been highly improper. The penalty to be imposed on a conviction of manslaughter is solely within the discretion of the Judge and not the jury. It is only in those cases like murder and rape, where the jury may fix the penalty, that an instruction setting forth the penalty in the event of a conviction is proper. Blaylock v. State, 148 Miss. 1, 113 So. 627.
V. It is contended that the Trial Court erred in permitting the photographs in evidence to be introduced by the State. We first call the Court's attention to the fact that two of the photographs in evidence were introduced by the appellant during his cross-examination of the State witness, Bass, shown to be the photographer who took the pictures. The appellant recalled this State witness for further cross-examination, at which time he introduced, without objection from the State, two photographs, "Exhibit D," and "Exhibit E," to the testimony of the witness, Bass. "Exhibit E" shows two persons standing with their backs to the camera, evidently one standing by the fence post where the proof shows an ax belonging to the deceased was found lying on the ground, and the other person standing by a large oak tree, evidently in the approximate position where the feet of the deceased were lying. We are not unmindful of the holding of this Court in the case of Fore v. State, 24 So. 710, and the recent case of Martin v. State, 64 So.2d 629, with reference to the introduction of photographs depicting a person or witness attempting to re-enact the scene of a homicide; and had the State introduced these two photographs, over objection of the appellant, then we frankly admit that such might have resulted in reversible error; but here the appellant introduced the photographs and, therefore, is in no position to complain of their introduction.
VI. As to the photographs introduced by the State, we submit that such photographs are clearly shown to portray an exact likeness of the scene of the homicide. The photographs are very helpful in that they portray the scene of the homicide much better than a witness could describe same. The photographs introduced by the State do not attempt to re-enact the scene by placing witnesses or other parties at the various locations testified by the witnesses. Sims v. State, 209 Miss. 545, 47 So.2d 849.
VII. It is contended that the Trial Court erred in refusing to grant a peremptory instruction requested by the appellant at the close of the State's case; and that the Trial Court erred in refusing to grant a peremptory instruction requested by the appellant at the close of all the testimony. Appellant relies upon the rule announced by this Court in the case of Weathersby v. State, 165 Miss. 207, 147 So. 481, contending that the case at bar comes clearly under the rule announced in said case and the numerous decisions in accordance therewith. The proof as disclosed by this record clearly removes the case at bar from the rule in the Weathersby case. Justice v. State, 170 Miss. 96, 154 So. 265; Massengill v. State, 216 Miss. 278, 62 So.2d 330; Pitts v. State, 211 Miss. 268, 51 So.2d 448.
VIII. Appellant contends that the verdict of the jury is contrary to the law and the evidence; and that the evidence only supports a conviction of manslaughter, if anything. The case at bar presented an issue of fact as to appellant's guilt or innocence of murder or manslaughter that was properly submitted to the jury, with proper instructions, for their determination. Anderson v. State, 199 Miss. 885, 25 So.2d 474; Copper v. State, 194 Miss. 592, 11 So.2d 207; Hinton v. State, 175 Miss. 308, 166 So. 762; Humphreys v. State, 217 Miss. 909, 65 So.2d 226; Sims v. State, supra; Woodward v. State, 130 Miss. 611, 94 So. 717; Sec. 2226, Code 1942.
IX. It is contended that appellant's rights guaranteed to him under Section 26 of the Constitution of Mississippi were denied him by the Trial Court, when the Trial Court overruled his motion for a new trial in the absence of the appellant. This record shows that the accused herein was afforded the benefit of every right guaranteed to him under Section 26 of the Constitution. Rule 11, Rules of Supreme Court.
The appellant, Charles J. Willette, was indicted in the Circuit Court of the First Judicial District of Jones County, Mississippi, for the murder of Lee Smith. He was found guilty as charged and was sentenced to life imprisonment, from which judgment he appeals.
The record discloses that the appellant and the deceased were residents of Covington County, Mississippi; that they had a business transaction involving a timber deal in Jones County. The deceased owed the appellant $50.00 which he had promised to pay Saturday, December 6, 1952. On that day, the deceased left a check in the amount of $48.75 at a filling station in Seminary, which check was payable to the deceased and was properly endorsed. It is undisputed that the appellant took the check and cashed it. At the time he received the check from the operator of the filling station, he remarked that, "it ought to be $50.00." Appellant then went to the home of the deceased, but he was not at home, and according to the testimony of his widow, the appellant became angry and "he poked that check towards me, and said, he promised to leave me $50." Appellant then said "I am going to have my money, there is a way I can get it, and I am going to get it."
On the following Monday, December 8, 1952, the appellant went to the woods where the deceased was logging to locate and show deceased some land lines. This was around the noon hour and the deceased had not returned from lunch and the appellant waited for him. When the deceased returned, they proceeded into the woods to locate the lines. The deceased took an ax with him. The appellant and the deceased were later seen in the woods standing close together. Hiram Fairchild, a witness for the State, testified that he heard a shot, looked up and observed appellant and deceased standing there with their chests together and that two more shots were fired; that all three shots were fired "as fast as a fellow could pull the trigger." This witness further testified that after the shooting he did not see but one man standing, and that the appellant then walked to where he and the others were working, which was approximately one hundred yards from the scene of the homicide, and said: "If you men hadn't saw it, there wouldn't have been nobody to have told it." This witness testified that the ground was burned over and practically clean except for a few leaves which had fallen, and that he was standing where he could see anything from waist-high upward; that if a man had an ax up, he could have seen it, but if it was below the waist, he could not; that he did not see an ax until he went to the scene.
Calvin Helveston testified that he was cutting wood for the witness Fairchild; that he looked up and saw two men "leant together" and heard three shots fired; that the appellant walked away and came to where they were cutting wood and made similar statements as testified to by the previous witness. He further corroborated the testimony of the witness Fairchild as to the condition of the ground and that he could see both men above the waist. He also stated that he could have seen an ax if either man had had one, but that he did not see one, and he could see the deceased's hands at the time of the shooting for the reason that the deceased was facing him and the appellant was not. He further testified that the appellant and the deceased were "scuffling and that they advanced on each other and the deceased "must have pushed Willette back some."
Cecil Biglane, another witness, testified that he saw the appellant and deceased come together, then heard the shots; that the appellant came down where the men were working, with the pistol still in his hand, and said to them: "I just done something I hated to do, but I shot a man up there . . . if we hadn't seen it, there wouldn't have been nobody to have told it." These witnesses then went to the scene of the homicide where they found the deceased lying on his back, his feet within two or three feet of a large oak tree, and the ax which belonged to the deceased was approximately twelve or fifteen feet from the head of the deceased with the handle pointing toward him. A pair of gloves were found within a few inches of the ax.
According to the testimony of the State's witnesses the ground at the scene of the homicide was soft and clean except for leaves; that there were no marks or evidence of any kind on the ground that would indicate a struggle had taken place; there was no indentation on the ground where the ax was found. The evidence shows that the deceased was shot three times — once in the left shoulder and twice in the chest, and that all of the shots entered the body of the deceased from the front and there were powder burns around each of the wounds.
The Sheriff of Jones County, along with the deputy sheriff and others, went to the scene. His testimony as to the condition of the ground was to the same effect as the other witnesses. The deputy sheriff, Paul Bazor, testified that he measured the distances and that Smith's body was three or four feet from the tree, that the ax was fourteen feet from his head and twenty feet from his feet, and the ground was soft, burned over, and that there was no indentation of any kind on the ground where the ax was found. Three photographs of the scene of the homicide were introduced in evidence by the State and two by the appellant.
The appellant, testifying in his own behalf, stated that he was 74 years of age; that he was a timber estimator; that Smith, the deceased, told him on Saturday morning he would leave $50 for him at Cranford's Service Station in Seminary, and said "when you show me the other lines, I will pay you." He admitted that on the afternoon that he got the check for $48.75 he went to Smith's home to see why he had not left $50 for him. He did not find him at home and he told Mrs. Smith that there were laws in Mississippi that would give a man what was owing to him and that he told her that some of the balance due was for labor. He testified that the next time he saw the deceased was in the woods on Monday afternoon; that he showed him the lines and a corner nearby; that when they had located the lines, he called upon the deceased to pay him the balance that he owed him and the deceased told him he did not have any money with him, and took out his purse and opened it to show appel-The appellant testified that the deceased then became angry, threw the purse on the ground, picked it up again, and walked back to the fence post where he picked up his ax. He began cursing the appellant and Butler (former owner of the timber) and stated: "You and Butler . . . double-crossed me — I will cut your brains out," and the deceased started towards him; that he shot at his arm as he didn't want to kill the deceased but only wanted to stop him, but in just a few seconds the deceased ran up and grabbed his left arm; that he pressed the gun against his body and pulled the trigger; that the deceased released his hold upon appellant, dropped the ax, and staggered twelve or fifteen feet backwards.
On cross-examination, the appellant admitted that he went to Mrs. Smith's home, and that she asked him to leave. At that time he had no cross words with her. He testified that he always carried a gun with him when he went to the woods. He then demonstrated before the jury how the deceased had the ax up at the time of the killing, showing them that the ax was over the deceased's left shoulder, and stated that when the deceased made a step forward, he shot him; that the deceased then grabbed him with his right arm and "hugged me up" and he put the gun on his body and pulled the trigger.
The appellant introduced two witnesses seeking to contradict the State's witness Fairchild as to the details of the homicide. He also introduced ten witnesses from Covington County who testified as to appellant's reputation for peace and violence and all stated that it was good.
(Hn 1) The main assignment of error argued by appellant is that the court erred in refusing to grant the requested peremptory instruction. The appellant relies on the rule announced in the case of Weathersby v. State, 165 Miss. 207, 147 So. 481, and many other cases to the same effect, which is: "Where the defendant or the defendant's witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge. 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."
We are of the opinion that the appellant does not come within the rule in that the foregoing statement contradicted by the physical facts and circumstances as well as the testimony of the witnesses for the State. In addition, the testimony given by the appellant and the demonstration by him before the jury showing that the deceased held the ax up, which was contradicted by State's witnesses, was sufficient for the jury to believe that the deceased was unarmed at the time he was killed. (Hn 2) The appellant argues that the State's witnesses corroborate the appellant in that the deceased was advancing upon the appellant and that they were in a death struggle. The jury could also have reasoned that when the appellant pulled his pistol, the deceased rushed upon him in a futile effort to protect his own life. All the evidence on the part of the State was that the ground was soft and there were no marks or indentations on the ground where the ax was found. It was within the province of the jury to find that the deceased had laid his ax and gloves down. "The jury is under no compulsion to implicitly believe all the statements of a party acknowledging the killing of a deceased person." Wingo v. State, 91 Miss. 865, 45 So. 862. Grady v. State, 144 Miss. 778, 110 So. 225. The court correctly refused the request for a directed verdict.
(Hn 3) The appellant next argues that the court erred in admitting the photographs in evidence. These photographs do not come within the condemnation of the Court in the cases of Fore v. State, 75 Miss. 727, 23 So. 712; Brett v. State, 94 Miss. 669, 47 So. 781; Martin v. State, 94 Miss. 669, 47 So. 781; Martin v. State, 217 Miss. 506, 64 So.2d 629; Buie v. State, 217 Miss. 695, 64 So.2d 897. (Hn 4) "Photographs, whether original or copies, are admissible as primary evidence upon the same grounds and for the same purposes as are diagrams, maps, and drawings of objects or places. Photographs have been received for the purpose of describing and identifying premises which were the scene of the crime and they need not show all the premises if they show the material part." Underwood's Criminal Evidence, (3rd ed.) Sec. 103. Sims v. State, 209 Miss. 545, 47 So.2d 849.
(Hn 5) The appellant also contends that the court erred in granting the State the following instruction: "The court instructs the jury for the State that the deliberate use of a deadly weapon in any difficulty, not in necessary self-defense, is in law evidence of malice." The giving of this instruction was error, Tullos v. State, 75 So.2d 257; Johnson v. State, 77 So.2d 824; but under the facts in this case, we hold that it was not prejudicial to the appellant. The issue in the instant case was murder or justification, as the appellant admitted that he deliberately killed the deceased in order to protect his own life. In Harris v. State, 175 Miss. 1, 166 So. 392, this Court said:
"The granted instruction complained of instructs the jury for the state `that malice is implied by law from the nature and character of the weapon used, and that the deliberate use of a deadly weapon in a difficulty, and not necessarily in self-defense, is in law, evidence of malice.' All the facts and circumstances of the homicide were fully given in evidence; therefore this instruction should not have been given. Walker v. State, 146 Miss. 510, 112 So. 673; Smith v. State, 161 Miss. 430, 137 So. 96; Winchester v. State, 163 Miss. 462, 142 So. 454. The error committed in granting the instruction, however, was harmless. If the homicide was committed as the State's witnesses said it was, the crime thereby committed was undoubtedly murder. If it was committed as appellant's witnesses said it was, it was undoubtedly committed in self-defense. This was the only question the jury had to decide, and the law relative thereto was correctly stated in other instructions. Moreover, the instruction expressly charged the jury that malice could not be inferred from the use of a deadly weapon if the homicide was committed in self-defense." Hughes v. State, 207 Miss. 594, 42 So.2d 805; Jackson v. State, 218 Miss. 598, 67 So.2d 520; Smyley v. State, 79 So.2d 539.
(Hn 6) We have examined the other assignments of error and find them to be without merit. The appellant obtained nineteen instructions, which presented every phase of his defense. He was ably represented in the court below. We are of the opinion that the guilt or innocence of the appellant was a matter for the determination of the jury and that their verdict was supported by the evidence. We are unable to say that the verdict of the jury is contrary to the overwhelming weight of the evidence and the case is accordingly affirmed.
Affirmed.
Roberds, P.J., and Lee, Holmes and Ethridge, JJ., concur.