June 13, 1949.
1. Criminal procedure — change of venue.
A motion for a change of venue because of local prejudgment is properly overruled when the denial is supported by the testimony of numbers of officers and citizens that there was no aroused popular feeling against the accused and that he could get a fair trial in the county.
2. Criminal procedure — indictment — attempt to kill and murder.
An indictment charging shooting at another with intent to kill and murder and alleging that shooting was done unlawfully with malice aforethought, feloniously and wilfully with intent to kill and murder, is sufficient to charge that shooting was done with felonious intent to kill and murder and properly charges an offense of assault and battery with intent to kill and murder.
3. Criminal procedure — continuance.
Accused is not allowed to complain of denial of continuance on account of absent witness when he did not comply with the rule governing continuances and on his motion for a new trial did not follow it up with affidavits as to what the witness would swear to, or giving a reasonable explanation of why the affidavits had not been produced.
4. Criminal procedure — application for continuance.
Application for continuance on account of absent witness must show (a) that the witness has been promptly summoned; (b) that an attachment was asked for on his failure to appear; (c) that the application is made before venire drawn; (d) the name and residence of the absent witness and the facts expected to be shown by him; (e) the cause of the absence if known; (f) what other steps have been taken to secure attendance of witness; and (g) must negative the idea that the absence is with the consent or procurement of accused.
5. Criminal procedure — continuance — procedure when application denied.
When an application for continuance on account of absent witness is denied, defendant must again send out proper process for his witness and when case called for trial must again apply for continuance, making such changes in his affidavit as the conditions then existing require; and if still refused must persist in using process of the court to compel attendance during trial and, if convicted, on the motion for a new trial, and if appearance of witness cannot be had his ex parte affidavit, if it can be obtained, must be presented to the court on the motion for a new trial.
6. Jury — challenges.
A defendant who has not exhausted his peremptory challenges may not complain of a refusal by the court to excuse certain jurors for cause.
7. Criminal procedure — trial — evidence of other crimes when admissible.
In a prosecution for assault and battery with intent to murder a police officer, evidence of former burglaries was admissible as showing cause for alertness on the part of the officer, when the court makes it known to the jury that the sole purpose of the evidence is as stated.
8. Criminal procedure — trial — evidence received without objection — mistrial — new trial.
Error in the admissibility of evidence can be predicated only on an objection thereto specifically pointing out the infirmity therein and the objection must be promptly made; wherefore, a party who would object may not wait until the objectionable evidence is in, and its full effect apparent and then seek to raise the point by motion for a mistrial nor in the absence of a timely objection, during the trial, may the objection be presented on a motion for a new trial.
9. Criminal procedure — instructions — assault and battery with intent to murder.
In a prosecution for assault and battery with intent to kill and murder it is not necessary that the state shall secure an instruction defining the essential elements of murder, although the defendant may do so if he desires.
10. Trial — instructions — erroneous instructions withdrawn.
Although an instruction may be erroneous, if immediately upon its being read to the jury, the trial judge orders it withdrawn and that the jury shall not consider it, there is no error upon which a reversal may be had.
11. Criminal procedure — trial — instructions — presumptions of innocence.
An instruction to the effect that the accused is presumed to be innocent and that the presumption attends him and prevails throughout the trial, and that jury must reconcile the evidence with the presumption is properly refused.
Headnotes as approved by Montgomery, J.
APPEAL from the circuit court of Lincoln County; J.F. GUYNES, Judge.
Homer W. Pittman and E.C. Barlow, for appellant.
We think when this honorable court has read the evidence on this motion, for a change of venue, and the evidence on the entire trial and in looking to the full and completed trial with all the other errors contained therein, that it will then appear clearly and distinctly that appellant did not and could not get a fair and impartial trial as contemplated by the law, and as was held in the following cases: Owens v. State, 82 Miss. 31, 33 So. 722; Anderson v. State, 92 Miss. 656, 46 So. 65; Magness v. State, 103 Miss. 30, 60 So. 8; Keeton v. State, 132 Miss. 372, 96 So. 179; Eddings v. State, 110 Miss. 780, 70 So. 898; Fisher v. State, 145 Miss. 116, 110 So. 361; Garrett v. State, 187 Miss. 441, 193 So. 442; Scarbrough v. State, 37 So.2d 748.
In the second assignment of error we think the court erred in refusing to grant the defendant a continuance at the September 1948 term of the circuit court of Lincoln County, Mississippi, because of the absence of the witnesses J.D. Owens, R.E. Housley, Mrs. R.E. Housley and Mickey Ballew.
The appellant being a total stranger in Lincoln County, and his witnesses being absent by reasons of conditions of which he had no control, and in view of the entire record we submit the question of the absent witnesses to this honorable court without further comment upon that point.
We submit that the juror Charles R. Ratcliff who appeared on the jury had been on the 11th day of September subpoenaed as a witness for the defendant, and should have been excused by the court as a juror without forcing the appellant to excuse him peremptory.
And we submit that the court erred in assignment of error four with reference to excusing the juror Earnest Case, who was a boyhood friend to the assaulted party Leroy P. Watts, reared in the same community and was a brother-in-law to Hiram Nettles, who was a member of the police force and served with Watts on the force, and thoroughly familiar with all the circumstances and conditions with reference to this case.
With reference to assignment of error number 7 — it has always been the rule that neither the state nor defendant could offer evidence to "boost" any witness; and it is likewise the rule that the commission of other crimes where disconnected from the charge for which the party is being tried is wholly inadmissible and can not be introduced in evidence by either the state or defense unless it be that a previous crime is so closely related to the issue on trial that it forms part of the res gestae but in this case. Beginning at top of page 145 and continues on part of page 146 the state offered to show and did show by Brister that Hoffman's drug store store had been burglarized and that the American Oil Company was broken into and burglarized.
There were timely objections made to this evidence, said burglaries being at another time and place, and there being no evidence to connect this appellant with same. There was nothing said by the state or either the witnesses that would so show any connection, or make the Hoffman and American Oil Company burglaries competent, quoting the court: "I think the details would be incompetent, but the officers being there would be competent, there was no effort to show this man was doing it, but it does show why the officers were on the watch."
Further objection being made the court said: "The court is of the opinion that the state may show the former causes for watchfulness and alertness on the part of these officers, without attempting to show that the defendant was connected with it. I understand that the effort is to show that the defendant was guilty — not to show the defendant was guilty of those offenses, but it does show the necessity for the officers being there and being on the alert."
Then the court stated on top of page 146: "This testimony is admitted, for the sole reason, to show why the officers were on the alert, and not to show that the defendant was the perpetrator of any of those offenses. We will consider it for that purpose alone."
We think and submit that this was highly prejudicial offering other burglaries previously committed could have served no other purpose save and except to prejudice the minds of the jury against this defendant and to defeat any chance he may have had to get a fair and impartial trial and especially so in view of Brister's testimony in which he said he did not know what they were doing, that they were putting something in their pockets, either fooling around the door, or taking a drink of whiskey.
We submit that it could not have been offered in evidence to justify Watts and Brister in attempting to make an illegal arrest; and for which we believe should and does constitute reversible error. Brown v. State, 72 Miss. 997; Kerny v. State, 68 Miss. 233, 8 So. 292; Harper v. State, 83 Miss. 402, 35 So. 572; 197 Miss. 96, 19 So.2d 488; Humphres v. State, 122 Miss. 41, 84 So. 141; Jeffreys v. State, 89 Miss. 643, 42 So. 801; King v. State, 65 Miss. 576, 5 So. 97; Benoit v. City of Bay St. Louis, 103 Miss. 213, 60 So. 137; Slaydon v. State, 102 Miss. 101, 58 So. 977; Dedeaux v. State, 125 Miss. 326, 87 So. 664; Cook v. State, 81 Miss. 146, 32 So. 312; Dabney v. State, 33 So. 973, 82 Miss. 252; Cotton v. State, 17 So. 372; Keel v. State, 133 Miss. 160, 97 So. 521; Williams v. State, 79 Miss. 555, 31 So. 197. It was held in the above cases that evidence that a witness suspected that accused would burn the building and watched for several nights in anticipation thereof was inadmissible. Skinner v. State, 198 Miss. 605, 23 So.2d 501; Bangrew v. State, 198 Miss. 359, 22 So.2d 360; McLin v. State, 150 Miss. 159, 116 So. 533; Floyd v. State, 148 So. 226, 166 Miss. 15; Gunter v. State, 180 Miss. 769, 178 So. 472; Kehoe v. State, 194 Miss. 339, 12 So.2d 149; Augustine v. State, 28 So.2d 243; Walker v. State, 40 So.2d 239.
We submit that the court should have sustained a demurrer to the indictment it being the constitutional right of the defendant upon a trial to be charged in an indictment that is sufficient to inform him of the exact nature and charge upon which he is to be tried. Miller v. State, 95 So. 83, 130 Miss. 730; State v. Johnson, WLK, 1 Miss. 392; Harkness v. State, 95 Miss. 506, 48 So. 294; Chenault v. State, 154 Miss. 21, 122 So. 98; Cooksie v. State, 175 Miss. 82, 166 So. 388; Cook v. State, 72 Miss. 517, 17 So. 228; State v. Sam, 154 Miss. 14, 122 So. 101; Nichols v. State, 46 Miss. 284.
In the assignment of errors numbers 9 and 10 which may be considered together with reference to the evidence given by the witness Charles Bahin: "A. I had around eight pictures in my pocket of known criminals. Q. Eight pictures in your pocket of known criminals? A. That had been in this vicinity. Q. What did you do after you got to Brookhaven? A. When I got to Brookhaven and talked to Patrolman Barrett, I asked him how the man was getting along that got shot; and I asked could I talk to any of them, and he said `Yes,' we went down to the hospital, and I believe this boy was named Watts that was shot, and I handed him these pictures, and asked him could he identify any of them. Q. How many pictures did you hand him? A. Handed him about eight. Q. Asked him could he identify them? A. Yes, sir. Q. Did he identify any of them? A. Yes, sir, he identified one. Q. Who was that? A. Luther Bone."
This evidence was highly prejudicial in that it undertook and did state to the jury that the defendant, Luther Bone, was one of eight known criminals, which would naturally influence the jurors' minds as a man of former convictions, a man who had a bad reputation and character, and it could only be considered, construed, and calculated to injure and prejudice the defendant before the jury, and was a direct and voluntary attempt on the part of the state to introduce evidence of bad character against the defendant at a time when the defendant had not taken the stand and at a time when he had offered no evidence of good character or reputation, and which was wholly inadmissible and a straight forward invasion of the defendant's legal and constitutional rights, and detrimental to him in getting a fair and impartial trial.
It has always been the rule that the state could not offer evidence of bad character until the defendant has put his character in issue, and we submit that this constitutes reversible error. "At common law a defendant's general character was not subject to attack until he himself puts it at issue." 67 So. 583, 190 Ala. 22. "Permitting State to prove defendant's general bad character before it was put at issue held error." Shirly v. State, 111 So. 195, 21 Ala. 626. "The accused may offer in evidence defense evidence of his good character." Lewis v. State, 93 Miss. 697, 47 So. 467. Webb v. State, 111 Miss. 419, 71 So. 738; Kearney v. State, 68 Miss. 233; Neal v. State, 101 Miss. 122, 57 So. 419; Kehoe v. State, 194 Miss. 139, 12 So.2d 149. "In any criminal prosecution the defendant can not prove particular acts of his good conduct, neither can the state in rebuttal prove particular acts of his bad conduct." Kearney v. State, 68 Miss. 233.
We submit that the court erred in overruling appellants motion at the end of the state's evidence for a peremptory instruction. Taking the evidence of Leroy P. Watts, or "Tip" Watts, as he is commonly called, Watts' testimony beginning on page 100 — plainly states that they, whoever Brister and Watts saw and had the encounter with that morning, were committing no crime in the officers' presence. They had no warrant for their arrest, and they were not suspected of having committed a felony by Watts and Brister.
There was no malice shown or premeditation, and no motive proven, and apparently from the evidence all that did happen, happened right on the scene within a few seconds, at a time when Brister and Watts rushed in on these parties, without making known to them any purpose or intentions. Dalton v. State, 141 Miss. 841, 105 So. 784; Rolland v. State, 83 Miss. 433, 38 So. 826; Williams v. State, 122 Miss. 151, 84 So. 8; Bangren v. State, 196 Miss. 887, 17 So.2d 599; Jones v. State, 170 Miss. 851, 155 So. 430; Shed v. State, 33 So.2d 816; Crell v. State, 186 Miss. 738, 191 So. 814; Anderson v. State, 199 Miss. 885, 25 So.2d 474; Combs v. State, 175 Miss. 376, 167 So. 54; Walker v. State, 188 Miss. 177, 189 So. 804.
It is a well settled question of law that assault and battery with intent to kill and murder must be such that if the party had died the crime would be murder, the evidence must be such that would support a verdict of murder in the event of death; and we submit that under this evidence there is shown no malice aforethought, no premeditated design and no intent to kill and murder on the part of the one doing the shooting.
It is the element of intent that raises the crime to the dignity of a felony and distinguishes it from a misdemeanor. Jeff v. State, 37 Miss. 321, Harriston v. State, 54 Miss. 689, 28 Am. Rep. 392; Herring v. State, 134 Miss. 505, 99 So. 270; Lott v. State, 130 Miss. 119, 93 So. 481.
We submit that instruction number two (2) for the state is clearly erroneous and could not be read in connection with or as a part of instruction number one, this instruction tells the jury: "That if you believe from the testimony beyond a reasonable doubt that the defendant, Luther Calvert Bone, wilfully, unlawfully, feloniously and of his malice aforethought, shot Leroy P. Watts on the morning of February 15th, 1948, with a pistol, when he, the said Luther Calvert Bone, was in no danger, real or apparent, of losing his own life or suffering great bodily harm at the hands of Leroy P. Watts, then he is guilty of the charge against him, and you should so find."
The first part of this instruction is erroneous under this evidence for the same reason that there was no instruction given the jury to define the elements of murder, this instruction is further erroneous and fatally defective for the reason it leaves out the felonious intent to kill and murder, and we submit that this is fatal error. Lott v. State, 130 Miss. 119, 93 So. 481; Herring v. State, 99 So. 270; Earl v. State, 168 Miss. 124, 151 So. 172; Griffin v. State, 196 Miss. 528; Daniels v. State, 196 Miss. 328, 17 So.2d 793; Wilkerson v. State, 143 Miss. 324, 108 So. 711; Beasley v. State, 14 Miss. 518, 8 So. 234; Godwin v. State, 73 Miss. 823, 19 So. 712; Everson v. State, 72 Miss. 310, 19 So. 715; Hodges v. State, 192 Miss. 322, 6 So.2d 123; Allen v. State, 104 So. 353; Houston v. State, 54 Miss. 689 ; McNeil v. State, 115 Miss. 678, 76 So. 625; Johnson v. State, 75 Miss. 635, 23 So. 579.
Number three (3) instruction for the state which reads as follows, to-wit: "That although you may believe from the testimony that Leroy P. Watts on the occasion in question pursued Luther Calvert Bone, and if you further believe that Luther Calvert Bone, did not know that Leroy P. Watts was an officer in the City of Brookhaven, Mississippi, still the defendant, Luther Calvert Bone, had no right to shoot and wound Leroy P. Watts at a time when he was in no danger, real or apparent, of losing his life or suffering great bodily harm at the hands of the said Leroy P. Watts."
This instruction was marked "given" by the court, and filed by the clerk, then read to the jury, and marked then by the court "withdrawn."
We submit that this instruction marked "given" by the court and read to the jury by the District Attorney was heard by the jury and the jury was never told by either the court or the District Attorney, or A.A. Cohn, attorney for the state, that this instruction was withdrawn, and was not the law, and even though it is marked "withdrawn" the jury had the instruction, and heard the instruction read and it could not be said that they did not act upon it.
R.O. Arrington, Assistant Attorney General for appellee.
The first assignment answered is assignment No. 8, appellant's brief, which is that the court erred in overruling demurrer to the indictment filed thereto.
I submit that a reading of this indictment shows that it meets all of the requirements of Section 2011, Mississippi Code of 1942. The appellant's argument is fully answered in the case of State v. May, 147 Miss. 79, 112 So. 866. Furthermore, the indictment in this case is identical with the indictment in the case of Wexler v. State, 167 Miss. 464, 142 So. 501, with the exception of the last clause of the indictment which sets out that from the effect of the assault the said Odom then and there died.
The next assignment argued is that the court erred in overruling motion for continuance. The court committed no error in overruling the motion for continuance as all of the absent witnesses upon which the motion was based were shown to be beyond the jurisdiction of the court. Furthermore, counsel did not comply with the rule governing continuances in that they did not file affidavits on motion for new trial. Ogden v. State, 174 Miss. 119, 164 So. 6.
The next assignment argued is that the court erred in failing to excuse the juror, Ernest Case, and the juror, Charles R. Ratliff, for cause.
The record herein shows that both sides accepted the jury and each side used five peremptory challenges. The court, in Shubert v. State, 66 Miss. 446, 6 So. 238, held: "Where, on summoning a special venire in a murder trial, the name of one of the jury was omitted from the list furnished the prisoner by inadvertence, and the person whose name was left off was set aside by the court, and a jury selected from the balance, without the prisoner exhausting his peremptory challenges, no injury was done of which the prisoner can complain." 6 So. 238. To the same effect, Cummins v. State, 144 Miss. 634, 110 So. 206; Richardson v. State, 153 Miss. 654, 121 So. 284.
The next assignment argued is that the court erred in refusing to sustain objection to prior burglaries occurring in Brookhaven. The record shows that Mr. Brister, upon being asked why he was suspicious of these particular parties, answered that about a month before that Hoffman's Store was broken into; also that the American Oil Company was broken into. The court held that the details of these burglaries would not be competent, but it could be shown that there had been other burglaries to show why the officers were on the alert. The District Attorney stated in the record that there was no intention upon the part of the state to show that the appellant was connected with those crimes.
Counsel for appellent next argues that the court erred in permitting the witness, Charles Bahin, Chief of Police of the City of Natchez, to testify that he had around eight pictures in his pocket of known criminals. The record shows that after the witness testified about the pictures in his pocket he continued to testify, answering several more questions and that counsel for appellant have not objected to this testimony up until this time. It is true that they asked the jury to retire and motion for mistrial was made. The court overruled the motion. The motion for mistrial was overruled. Counsel for appellant also refers to the question with reference to the pictures, which was repeated by counsel for the state. The record also shows that counsel for appellant remained silent and have never objected to a repetition of this question. The court, in Jackson v. State, 163 Miss. 235, 140 So. 683, held that in the absence of a specific objection in the lower court the point could not be raised in the Supreme Court for the first time.
Counsel for appellant argues that the court erred in overruling motion to exclude the evidence upon the part of the state and direct the verdict for the defendant when the state rested its case. Counsel for appellant contends that since the officers followed the appellant and the other party, that they were aggressors, although the evidence conclusively shows that no overt act was made by the officers. I submit that the officers were strictly within the performance of their duties at this hour of the morning — 2:30 A.M. — in observing these strangers whose actions were suspicious as it was obvious that they were not shopping at this hour of the morning. I submit that the officers were not under the obligation to retire and leave these strangers at Lofton's store until they accomplished their mission, whatever it was. Appellant argues that the officers did not call on the strangers to submit to arrest. According to the testimony of the officers, they were not in a position to do so. Before a word had been said, Brister was shot down and according to the testimony of Watts the appellant, Bone, fired at him at a distance of seventy-five feet. Under these circumstances, it certainly would not be appropriate for an officer to call on a party to submit to arrest.
The only question in this case is the identity of the party who shot Watts. The evidence in this case shows that the streets of Brookhaven were well lighted and that the assaulted party, Watts, had a personal encounter with the party whom he identified positively as the appellant, Bone.
This is an appeal from a judgment of the Circuit Court of Lincoln County, Mississippi, wherein the appellant, Luther Calvert Bone, was convicted on a charge of assault and battery with intent to kill and murder, and by the court sentenced to serve a term of ten years in the state penitentiary.
On the morning of February 15, 1948, at about 2:30 A.M. while Policemen Brister and Watts of the Brookhaven police force were making their round in Brister's private car containing no designation as a police car and while said officers were dressed in blue serge suits and wearing police caps, they noticed two men at Lofton's store on Whitworth Avenue in Brookhaven. Their suspicions were aroused as the men appeared to be either tampering with the lock on the store door or else taking a drink. The officers determined to check upon them and the men then walked on down Whitworth Avenue to the Brookhaven Bank corner, and there turned the corner. The officers drove on down the street, also turning the corner and pulled up in front of the Royal Cafe. The two men came almost that far and then turned and went back and started running. When they did, Officer Watts jumped out of the car and ran after them. Officer Brister turned his car in the street and went back to the bank corner, passed Officer Watts, passed the men before they got to the other end of the block on Whitworth Avenue, and parked his car. About that time one man started towards Officer Watts and the other started towards Officer Brister. About the time the man starting towards Officer Watts had gotten about 75 feet from him he opened fire on Watts and Watts returned the fire. Watts' assailant jumped into the stairway going up into the Federal Land Bank building and fired a few rounds at Officer Watts and Watts returned the fire. He stepped out from the Federal Land Bank stairway and ran a little farther down the street and jumped in Perkins Gift Shop offset there. Watts walked out in the street so he could shoot around the glass and Watts and his assailant fired a round or two and then Watts' assailant broke and ran up towards him. He got to the end of the sidewalk, threw his gun on Watts and it snapped a time or two. He cursed his gun and said, "I will beat your God d____ brains out," and moved in on Watts. They scuffled around, Watts trying to keep him from hitting him in the head with his gun. Watts' hand was beaten up, his fingernails were blue and subsequently two of them came off. Watts' assailant had on a brown hat and overcoat, the hat fell off, and while they were scuffling the other man, who had been engaged in an altercation with Officer Brister, came up and shot Watts in his left leg and he fell down. In the shooting that had preceded, Watts' first assailant shot him in the right leg. Both officers got a good look at Watts' assailant under the street lights, which were then burning, and both subsequently identified Luther Bone, the appellant, as Watts' assailant. There was no uncertainty in the identification and both officers were positive in their identification of Bone as the man who had assaulted Officer Watts.
It is assigned as error, first, that the court erred in refusing to grant a change of venue. (Hn 1) When the motion was made the State introduced twelve witnesses, being officers of Lincoln County, members of the Board of Supervisors, and citizens from the different parts of the County, all testified that there was no aroused popular feeling against Bone and no public sentiment against him, and that he could get a fair trial in Lincoln County. The court overruled the motion for a change of venue, and properly so. We find no merit in this assignment.
After the motion for a change of venue was overruled the appellant moved to continue the trial until the September term, and this motion was sustained and the trial continued until the next term of the court to be held in September, 1948. At that term of the court the defendant was permitted to withdraw his plea of not guilty and file a demurrer to the indictment, which demurrer was overruled. The action of the court in overruling the demurrer is assigned as error.
(Hn 2) The indictment in this case was returned under Section 2011 of the Mississippi Code of 1942, and it meets all of the requirements of the statute. It was held in State v. May, 147 Miss. 79, 112 So. 866, that an indictment charging shooting at another with intent to kill and murder and alleging that shooting was done unlawfully, with malice aforethought, feloniously and wilfully with intent to kill and murder, is sufficient to charge that shooting was done with felonious intent to kill and murder and properly charges an offense of assault and battery with intent to kill and murder.
The indictment in the case at bar is identical, in substance, with the indictment that was upheld in Wexler v. State, 167 Miss. 464, 142 So. 501. The action of the trial court in overruling the demurrer was correct and there is no error in the court's overruling the demurrer to the indictment.
It is next assigned as error that the court refused to grant a continuance on the ground that certain witnesses were absent. It appears that one of the witnesses appeared during the trial and testified, another of the witnesses was in California and the third was in Texas. (Hn 3) Appellant is not in position to complain of any error here as he did not comply with the rule governing continuances and follow this up on his motion for a new trial with affidavits as to what the witnesses would swear to, or giving a reasonable explanation of why the affidavits had not been procured. It was held in Lamar v. State, 63 Miss. 265, that (Hn 4) to entitle a defendant to a continuance because of the absence of a witness, he must promptly have the witness summoned; must ask for an attachment if the witness has been summoned and failed to appear; must apply for a continuance before venire drawn, and set out in his affidavit the name and residence of the absent witness and the facts expected to be shown by him, and also show what steps have been taken to secure his attendance; must negative the idea that he is absent with defendant's consent or procurement, and give the cause of the witness' absence, if it be known. If the continuance be refused, defendant must sue out the proper process for his witness, and when the case is called for trial must again apply for a continuance, making such changes in his affidavit as the conditions then existing require. (Hn 5) If still refused, he should persist in using the process of the court to compel the attendance of the witness on the trial, and if convicted, on the hearing of a motion for a new trial. If the appearance of the witness can not be had, his ex parte affidavit must be presented to the court, if it can be obtained, on the hearing of the motion for a new trial. See also Ogden v. State, 174 Miss. 119, 164 So. 6; Ware v. State, 133 Miss. 837, 98 So. 229.
(Hn 6) It is also assigned as error that the court refused to excuse for cause Jurors Ratliff and Case. It appears from the record that the appellant used only five peremptory challenges and consequently is not in a position to complain since his peremptory challenges were not exhausted. Shubert v. State, 66 Miss. 446, 6 So. 238; Cummins v. State, 144 Miss. 634, 110 So. 206; Richardson v. State, 153 Miss. 654, 121 So. 284.
It is next assigned as error that the court permitted testimony as to former burglaries over the objection of the defendant. (Hn 7) It appears from the record in the case that this testimony was introduced to show cause for watchfulness and alertness on the part of the officers and without attempting in any way to show that the defendant was connected with any of the former burglaries. The court stated to the jury that the testimony was admitted for the sole reason of showing why the officers were on the alert and not to show that the defendant was the perpetrator of any of those offenses and that the jury should so consider it for that purpose alone. This testimony was competent and the court committed no error in receiving it.
It is next assigned as error that the court erred in permitting the evidence of Charles Bahin, chief of police of Natchez, regarding pictures of "known criminals." (Hn 8) This testimony got into the record in the following manner. Bahin was on the witness stand and he was asked the question "State what, if anything, you had in your pocket with reference to pictures." He answered, "I had around eight pictures in my pocket of known criminals. Q. Eight pictures in your pocket of known criminals? A. That had been in this vicinity." The record shows that the appellant made no objection to this testimony as to "known criminals" that had been volunteered by the witness and not in response to the question. It also shows that he made no objection to the question of Mr. Cohn regarding the eight pictures of "known criminals" asked the witness after he had volunteered the information of "known criminals." Five questions and answers then intervened in regard to these pictures without referring to them as pictures of "known criminals," and then Mr. Pittman asked that the jury retire and after they had retired moved the court to enter a mistrial for the reason that such testimony tends to put in issue the character of the defendant at a time when the defendant has not testified and such testimony is prejudicial, incompetent and inadmissible. The court overruled the motion for a mistrial and the jury was returned to the courtroom. The court then stated to the jury, "Gentlemen of the jury, the witness stated the kind of men whose pictures were brought. This was an improper statement, improperly made, not responsive to the question from counsel for the state, and the jury will wholly disregard it . . . as to the kind of men whose pictures were brought to Brookhaven by this witness."
It will be noted that no objection was made to this testimony as it was coming in from the witness. It was only after all the testimony was in and its full effect apparent that appellant objected and moved for a mistrial. If counsel had objected timely the court would no doubt have sustained his objection. Surely the court should not be put in error for failing to exclude evidence to which there is no objection. The motion for a mistrial was overruled and the jury was instructed not to consider this error. This was all the court could do. Surely he should not have entered a mistrial and granted a continuance for the term. Counsel had already made a motion for a continuance at that term and the motion had been properly overruled by the court. The State was entitled to have the case tried at that term and the court can not be put in error for failing to exclude evidence to which there is no objection. The motion for a new trial did not reach the question of the admissibility of the evidence, that admissibility could be reached only by a timely objection. In Jackson v. State, 163 Miss. 235, 140 So. 683, 684, it was held that in the absence of a specific objection in the lower court the point could not be raised in the Supreme Court for the first time. The court saying, "Error in the admissibility of evidence can be predicated only on an objection thereto, specifically pointing out the infirmity therein." The motion for a new trial did not specifically reach the admissibility of the evidence. This could have been reached only by a timely objection and the objection not having been made timely no error in its admissibility can be raised in the absence of an objection thereto specifically pointing out the infirmity therein.
It is further assigned as error that the court erred in overruling the motion to exclude the evidence offered on behalf of the State and directing a verdict of not guilty. We have examined the evidence in this case and are satisfied that no fair jury intent upon ascertaining the truth could have done other than return a verdict of guilty upon the evidence that was presented to it. There is no merit in this assignment.
(Hn 9) It is next assigned as error that the court erred in granting Instruction No. 1 for the State. This instruction reads as follows:
"The Court instruct the Jury for the State that if you believe from the evidence in this case, beyond all reasonable doubt that the Defendant did wilfully, unlawfully, feloniously and of his malice aforethought, at the time and place complained of, commit an assault and battery upon the person of one Leroy P. Watts, a human being, with a certain deadly weapon, to-wit: a pistol, by then and there shooting and wounding the said Leroy P. Watts with said weapon, with the felonious intent to kill and murder the said Leroy P. Watts, then it is your sworn duty to find the Defendant guilty as charged."
Appellant argues that the instruction is erroneous in that the jury was not instructed upon the essential elements of the crime of murder and that no malice, motive or deliberate design is shown by the proof.
There is no question involving unlawful arrest in this case. At the time Bone fired upon Watts, Watts had not undertaken to arrest him and had not expressed to Bone any such purpose or intent. Bone fired upon Watts at a time when it is not shown by the evidence in this record that he had reasonable cause to believe that he was in danger of death or great bodily harm at the hands of Officer Watts and his firing upon Watts was without justification in law.
This court held in Martin v. State, 163 Miss. 454, 142 So. 15, with reference to instruction upon assault and battery with intent to kill and murder, that an instruction defining the crime with which defendant is charged is sufficient if it sets forth all of the elements of the crime.
In Canterbury v. State, 90 Miss. 279, 43 So. 678, there was involved an assault and battery with intent to kill and murder. Only two instructions were given for the State, neither of which define the crime of murder. The majority of the court held that these instructions were lawful and upheld the conviction in the lower court. Judge Calhoun dissented and the dissenting opinion of Judge Calhoun gave rise to the belief on the part of some of the members of the bar that it is necessary in this class of cases to define by instruction the essential elements of the crime of murder. This court had never so held. In Bridges v. State, 197 Miss. 527, 19 So.2d 738, error was predicated on the failure of the instructions for the State to define the term "murder" used therein. The Court there called attention to the dissenting opinion in Canterbury v. State, supra, but declined to hold that the instructions there were erroneous for not defining the essential elements of the crime of murder and contenting itself to state that error, if any, could not be predicated because of instructions granted appellant following the language used by the State and some of which defined the crime of murder in the language of the statute.
In the case at bar the defendant did not request any instruction defining the essential elements of the crime of murder, which he could have done had he so desired. It is not incumbent upon the state to request such instruction and this court has never so held. The instruction complained of was proper and the court did not err in granting it.
(Hn 10) It is next complained that the court erred in granting Instruction No. 3 to the State. When this instruction was read to the jury the judge withdrew it and refused to permit the jury to consider it. This Court held in McLaurin v. State, 37 So.2d 8, not yet published in State Reports, that even though the instruction might be erroneous it did not constitute reversible error when withdrawn by the State.
In the case at bar the accused's defense was an alibi and he got full instruction covering it.
(Hn 11) It is next contended that the court erred in refusing the following instruction to the defendant:
"The court charges the Jury that the Defendant must be presumed to be innocent until his guilt is fully established by legal and competent evidence. The presumption of innocence prevails throughout the trial and it is the duty of the Jury, if it is reasonably possible, to reconcile the evidence with this presumption."
After a careful and painstaking investigation of the record in this case we are satisfied that no prejudicial error was committed by the court below in the trial of the defendant and his subsequent conviction, and that the judgment of the lower court should be affirmed.