Opinion
No. 27167.
May 7, 1928.
1. WITNESSES. Refusal to permit defendant's witness, who had stated which hand of deceased held knife according to his recollection, to be questioned further as to such matter, was proper.
Where a witness, in a criminal prosecution, testifies that the deceased had a knife in his left hand, and a shoe brush in his right hand, but the defendant testifies that the deceased had a knife in his right hand, and a shoe brush in his left hand, it is not reversible error to refuse to permit the defendant's witness to be asked, "Do you know which particular hand he had the knife in, and which hand the shoe was in?" — the witness having already stated the facts according to his recollection.
2. HOMICIDE. Excluding alleged threat by deceased held not error, in view of failure to identify threat as being made against defendant.
Where a witness, in a homicide case, makes a statement that he heard the deceased say, "When I get done with that nigger the undertaker will be ready for him," and further states that he did not know to whom he was referring, that the deceased did not use any name, it is not error to exclude such statement, as it does not identify the threat as being made against the defendant.
3. HOMICIDE. In prosecution for murder evidence that no weapon was found in vicinity or on deceased's body held competent.
Where the defendant kills the deceased in an alleyway, and the deceased, after being shot, runs to the adjoining street and falls on the sidewalk, and is searched for a weapon and none is found, and where the alley is searched by officers for a weapon and none is found, it is competent to introduce evidence of such facts as tending to show that the deceased was unarmed when shot, and that the defendant was not in any danger at his hands.
4. CRIMINAL LAW. Homicide. In prosecution for murder defendant's flight is admissible, although he claims to have fled for reasons other than sense of guilt; in prosecution for murder defendant's explanation of flight is not conclusive; in prosecution for murder questions of defendant's flight and explanation thereof are for jury.
Where a defendant, after killing a person, flees from the scene of the killing, and is afterwards arrested, such flight is admissible in evidence, although the defendant makes the statement that he did not flee from a sense of guilt, but for other reasons. The explanation of the defendant is not conclusive in such case, but the question of flight and the explanation of same is for the consideration of the jury.
5. CRIMINAL LAW. Statements in motion for new trial are at issue and denied without formal pleading; movant must prove grounds of statements contained in motion for new trial; where record does not show statements for which new trial is asked were made or facts relied on existed, appellate court will not notice assignments based on overruling motion for new trial; alleged error in asking jury on voir dire questions referring to infliction of capital punishment not shown by record will not be considered on appeal.
Statements in a motion for a new trial are at issue, and denied without formal pleading. It devolves upon the movant to prove the grounds of statements contained in the motion, and where the record does not show such statements to have been made, or such facts to have existed, the court, on appeal, will not notice assignments based on the overruling of the motion.
APPEAL from circuit court of Washington county; HON. S.F. DAVIS, Judge.
J.M. Cashin, for appellant.
The first assignment of error in that court is that the court erred in sustaining the objection of the district attorney to the question propounded by appellant's counsel to the witness Frank Palmer, viz: "Do you know which particular hand he had the knife in and which hand the shoe was in?" It is true that the witness had stated that the knife was in the left hand but that may have been stated inadvertently and the witness should have been permitted to answer whether he knew which hand the knife was in and which hand he held the shoe in.
The second assignment of error is that the court erred in sustaining the motion of the district attorney to exclude the testimony of the witness Frank Palmer in regard to the threats made by the deceased Cyril Turner and in instructing the jury to disregard that testimony. The defendant testified that he heard the deceased say the day before the shooting, "When I get done with that negro, the undertaker will be ready for him." The witness did not testify that deceased used the name of appellant in making the threat, but the other evidence in the case shows that he must have been referred to appellant. It was therefore error and harmful to exclude this testimony. If there was any doubt as to whether deceased was referring to appellant, the jury should have been permitted to determine from all the evidence in the case whether he was referring to appellant. The third assignment of error is that the court erred in overruling the objection of appellant's counsel, the questions propounded to the witness, Lawrence Albert, as to whether he found any knife on or near the person of deceased, while he was lying on the sidewalk. The witness testified that there was a crowd around Cyril Turner when he reached him, and there is nothing to show that some one in that crowd may not have picked up the knife there, especially in view of the positive testimony of Frank Palmer, a disinterested white witness, that deceased did have a knife in his hand. The fifth assignment of error is that the court erred in overruling the objection of appellant's counsel to the testimony of D.P. Shanahan, to the effect that he and some other officers went down the alley where the shooting occurred with flash lights and found no weapon of any kind. As argued under the third assignment of error, this testimony was incompetent, irrelevant and immaterial and therefore it was erroneous on the part of the court to overrule the objection of appellant's counsel thereto. The sixth assignment of error is, that the court erred in refusing the instruction No. 8, requested by appellant and refused by the court. I think it was competent for the court to instruct the jury that appellant having explained that his flight was due to fright, the eighth instruction should have been given. 12 Cyc. 395-6.
The seventh assignment of error is that the court erred in overruling appellant's motion for a new trial. Green v. State, 97 Miss. 834, 53 So. 415; Collins v. State, 99 Miss. 47, 52, 54 So. 665.
Rufus Creekmore, Assistant Attorney-General, for the state.
The first assignment of error argued by counsel is that the court was in error in sustaining the objection of counsel to the question asked the witness Fred Palmer. It is clear that no error was committed in this respect. The witness had already answered that the knife was in the left hand and the shoe was in the right hand. Nor can it be successfully argued that this statement was made inadvertently, because on cross-examination the witness, at page 42, reiterated his statement that the knife was in the left hand and the shoe in the right hand.
Counsel next argues that the court was in error in excluding the testimony of the witness Palmer with reference to the threats made by the deceased, Cyril Turner. The testimony of this witness shows that there were a number of other negroes around at the time, and that there was no indication that the defendant was the negro referred to. The witness specifically says that he doesn't know to whom Turner was referring.
Counsel next argues that the court was in error in permitting the witness Lawrence Albert to testify that no knife was found on or near the person of the deceased after the killing. I am unable to follow the argument of counsel in this respect. It is certainly permissible for the witness to testify to the physical facts at the scent of the difficulty and also to testify to what articles were found on the person of the deceased, or at or near the scene of the difficulty. The same argument is applicable to assignments of error number four and five, which object to the action of the court in admitting testimony of this same character as detailed by other witnesses.
Counsel next objects to the action of the court in refusing instruction number eight requested by him. This instruction clearly is on the weight of the evidence and for that reason is erroneous. It tells the jury that the defendant has explained the reasons for his flight thereby taking from the jury the right which they have to determine from the evidence in the case whether or not he has explained this flight. Since the instruction attempts to rob the jury of this right, it is erroneous and was properly refused.
Counsel next argues that the court was in error in overruling the appellant's motion for a new trial. This motion for a new trial is apparently based on the fact that certain questions were asked the prospective jurors on their voir dire examination which were improper. These questions are set out at length in the motion for a new trial, but that is the only place in the record which shows the questions propounded to the jurors. The voir dire examination of the jurors is not in the record, nor does it appear from the record that the defendant objected to any of the jurors, who tried this case, for cause, on account of the asking of these questions. Nor does it appear that the jury who tried the defendant was not a fair and impartial jury. The number of peremptory challenges exercised by the defendant, does not appear from the record, nor, in fact, is there anything in the record which shows that the defendant did not have a fair and impartial trial by a fair and impartial jury. On the motion for a new trial it does not appear that evidence was introduced to show that the questions set out in the motion were actually propounded to the jurors.
The appellant was convicted of the murder of Cyril Turner, in the circuit court of Washington county, and was sentenced to be hanged, from which conviction and sentence he prosecutes this appeal.
The facts of the case are as follows: The appellant, several days prior to the killing of the deceased, caused the deceased to be arrested on a charge of burning some of his clothes, and upon investigation of the case the deceased was discharged by the city authorities. Thereafter the deceased was continually joking the appellant about having been turned loose and about the officers having caught the appellant in a lie. On the evening of the killing, the appellant went to a restaurant near which the deceased was working as a bootblack in a barber shop, and the deceased, upon seeing appellant, began "jawing" him about the police catching him in a lie. The appellant turned and walked into an alley near by, the deceased following him with a shoe in one hand and a shoe brush in the other, and when they had gone a little way down the alley, the appellant turned, drew a pistol, and fired, shooting the deceased, who ran back to the sidewalk and fell near where he was working. Shortly thereafter the deceased died from the effect of the shot. The deceased, while lying wounded on the sidewalk, requested one of the state's witnesses, who, upon hearing of the shooting, came immediately to the scene, to take everything out of his pockets, which was done, and no knife or other weapon was found upon the person of the deceased. A search was made by the deputy sheriff and police of the city shortly after the shooting. They went to the alley where the shooting took place and searched from there to the street, to see whether or not a knife or other weapon could be found, but after a thorough search none was discovered. After the shooting the appellant disappeared, but he returned to the city subsequently and was found, dressed in a nightshirt, in a house, about three o'clock on Sunday following the killing.
The appellant testified: That when he and a companion of his came to the restaurant, which adjoined the barber shop where the deceased worked, on the evening of the killing, the deceased said, "Here comes that son of a bitch now." That he (the appellant), after placing an order and eating, left the restaurant. That he passed where the deceased was, who, upon seeing him, began to joke him about the policeman having caught him in a lie. That he (the appellant) walked away, but the deceased, following and abusing him, drew a knife upon him, and to prevent the deceased from coming upon him with the drawn knife, he drew his pistol, whereupon the deceased stooped down and picked up a block of concrete lying in the alley, apparently of strike him. That to ward off the blow, which he thought would prove fatal, he fired the shot which killed the deceased. A witness for the defendant testified in support of this statement, but the witnesses for the state who were looking at the appellant and the deceased from the time they went into the alley until the shooting testified that the deceased did not stoop down and pick up anything, and that he did not have a knife in his hand, but that he held a shoe in one hand and a shoe brush in the other. After one of the defendant's witnesses had testified that the deceased had a knife in his left hand and a shoe brush in his right hand, the attorney for the appellant asked him again: "Do you know which particular hand he had the knife in and which hand the shoe was in?" To which question objection was made and sustained by the court, the defendant having testified that the knife was in his right hand and the shoe in his left. This ruling constitutes the first assignment of error.
We think that this is insufficient to cause a reversal of the case; and while it might have been properly answered, still it was immaterial which hand the deceased had the knife in if he was approaching the defendant with the knife drawn. At all events it is insufficient to cause a reversal of the case.
The second assignment of error is that the court erred in sustaining the motion of the district attorney to exclude that part of the testimony of the witness, Frank Palmer, relating to the threats made by the deceased, and in directing the jury to disregard that testimony. The matter complained of is a statement by the witness that he heard the deceased, the day before the killing, say, "When I get done with that negro the undertaker will be ready for him." The questions and answers on this matter are as follows:
"Q. Did you hear him make any threats on the life of James Young? A. I heard him say, `When I get done with that nigger the undertaker will be ready for him.'
"Q. Where was Cyril Turner when he made that remark? A. At the shoe shining place.
"Q. Was that on the evening he was shot? A. The evening before.
"Q. To whom was he referring? A. He was talking to some boys around his stand.
"Q. To whom was he referring? A. I couldn't say; he didn't use any name.
"Q. Did you ever hear him say anything about killing James Young, or any one, prior to that? A. No, sir."
When the direct examination of this witness was completed, with no further evidence to identify the person referred to in the above statement, the district attorney moved the court to exclude that statement, which was done. The record does not show that an exception was taken to the ruling of the court, but if such an exception had been taken, the facts were insufficient to show that the threat made referred to the appellant. Consequently there was no error in excluding this statement.
The third assignment of error is that the court erred in overruling the objection of appellant's counsel to again propound to the witness, Lawrence, questions as to whether he found any knife on or near the person of the deceased, etc. As shown in the record, the person of the deceased was searched, and also the ground between the place of the shooting and where the deceased fell, and no weapon of any kind was found. This was a pertinent fact, as the defense of the appellant that the deceased was approaching him in a threatening manner with a knife was apparently contradicted. The evidence tended to prove that the deceased did not have a weapon, and to support the direct evidence of witnesses that he did not have a knife in his hand at the time he was shot, and to contradict the testimony upon which defendant was relying as a defense.
The fourth assignment of error is of like nature and is clearly without merit.
The fifth assignment of error is that the court erred in overruling the motion of appellant's counsel to exclude the testimony of the witness D.P. Shanahan, to the effect that he and the officers went down the alley where the shooting occurred with a searchlight and found no weapon of any kind. As above stated, this fact tended to support the theory of the state and to discredit that of the defendant, and it was competent and relevant to the issue.
The sixth assignment of error is that the court erred in refusing instruction No. 8 requested by appellant. This instruction appears to have been marked "given and filed" in the record; but even if it was refused, it is erroneous as drawn, in that it seeks to tell the jury that if the defendant has explained the reason for his flight, it has no right to infer that he is guilty because he fled after the shooting and remained away from Greenville until Sunday morning. The defendant's explanation of his flight is not conclusive upon this proposition. The circumstance of flight is admissible, and, if explained satisfactorily to the jury, it should disregard that fact; but the fact was admitted, and the explanation of the appellant, if any, is for the consideration of the jury, as the jury is the judge of the weight and value of the facts and whether the explanation is reasonable and satisfactory. The mere fact that a defendant makes an explanation of such flight does not of itself remove the presumption or inference that may be drawn from the fact of flight. Consequently the court was not required to give the instruction in the manner in which it was asked.
The seventh assignment of error is that the court overruled appellant's motion for a new trial. Under this assignment it is argued that the court erred in asking the jury certain questions with reference to the infliction of capital punishment, which, it is contended, pressed the matter too strongly upon the jury. There is nothing to show that the questions and answers set out were actually made in the trial. The voir dire examination of the jury was not in the record, and there is nothing to show that the court asked the said questions or that the jury made the answers contended for. Motions are always at issue, are considered denied without formal pleading, and it devolves upon the movant to support the allegations of the motion with proof. There is nothing to show that this was done.
We find no merit in any of the assignments of error, and the judgment of the lower court will be affirmed, and Friday, June 22, 1928, is fixed as the date of execution.
Affirmed.