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Dillon v. State

Supreme Court of Mississippi, In Banc
Jun 12, 1944
196 Miss. 625 (Miss. 1944)

Summary

interpreting section 2218(f), Code 1942, which is identical to current section 97-3-15(f)

Summary of this case from Ford v. State

Opinion

No. 35484.

June 12, 1944.

1. HOMICIDE.

Victim's dying declaration was properly admitted in murder prosecution under evidence that victim knew that he had no hope of recovery and made his declaration under a sense of impending death.

2. HOMICIDE.

In murder prosecution, instruction was not erroneous for failure to authorize manslaughter verdict, where proof showed no element of manslaughter.

3. HOMICIDE.

Evidence sustained conviction of murder as against contention that evidence failed to show malice.

4. HOMICIDE.

In murder prosecution, accused's sanity was for jury.

APPEAL from the circuit court of Walthall county, HON. J.F. GUYNES, Judge.

Edd Dillon was convicted of murder, and he appeals. Affirmed.

J.M. Alford, of Tylertown, for appellant.

The dying declaration in this case is not admissible for the reason that the preliminary evidence as shown by this record was not sufficient to show that the deceased was conscious of impending death when he made the statement to the sheriff.

Bell v. State, 72 Miss. 507, 17 So. 232; Lipscomb v. State, 75 Miss. 559, 23 So. 210; Guest v. State, 96 Miss. 871, 52 So. 211.

One of the instructions given for the state is reversible error. This instruction by the court told the jury that they could find one of four verdicts, three of which were for murder, the fourth being "Not guilty." The court in this instruction told the jury that they could not find the defendant guilty of manslaughter. While the instruction did not say in so many words, yet the court did tell the jury that they should either convict the defendant of murder or should acquit him.

Johnson v. State, 75 Miss. 635, 23 So. 579.

There is no evidence of any malice or motive or of any previous difficulty, no bad feeling. The appellant and the deceased were neighbors, and if there was any ill feeling between them this record does not disclose it. There was no motive shown in this record for the killing. Analyzing this instruction in the light of this record, and there being no malice shown either directly or indirectly, or by any remote circumstances, then the jury was left solely with the presumption that malice may be presumed from the use of a deadly weapon, and we call the court's attention to that provision of the law which is uniformly followed, that malice may be presumed from the deadly weapon; but this instruction is a peremptory charge to the jury to find that the appellant was guilty of murder solely because he used a deadly weapon. We submit that the giving of that instruction is reversible error. That instruction should have gone further and charged the jury that they may find a verdict of manslaughter because the state certainly failed to prove any malice outside of and independent of the fact that the appellant used a deadly weapon.

Greek L. Rice, Attorney-General, by R.O. Arrington, Assistant Attorney-General, for appellee.

The first assignment of error argued is that the dying declaration was not admissible for the reason that the preliminary examination as shown by the record was not sufficient to show that the deceased was conscious of impending death at the time he made the statement to the sheriff. The testimony of the doctor taken together with the testimony of Sheriff Bullock shows that the deceased was conscious; that he was mortally wounded; that there was no expression of hope of recovery but, on the other hand, that he was going to die, which shows that he was fully conscious of impending death. We think the proof was sufficient to warrant the trial judge in believing beyond a reasonable doubt that the declaration was made under a solemn sense of impending death.

Jones v. State, 133 Miss. 842, 98 So. 340; Walton v. State, 156 Miss. 499, 126 So. 29; Dean v. State, 173 Miss. 254, 160 So. 584.

Assuming, for the sake of argument, that the dying declaration was inadmissible, then we have a case of a killing with a deadly weapon which is not explained and which killng is admitted by the defendant and, therefore, is murder. The presumption of malice which arises from the killing of a human being with a deadly weapon will prevail and characterize the act as murder, unless the facts in evidence change the character of the killing by showing either justification or necessity.

Durr v. State, 175 Miss. 797, 168 So. 65; Bennett v. State, 152 Miss. 728, 120 So. 837, 838.

It is appellant's contention that by the court's instruction the jury was limited to a verdict of murder and that this was erroneous for the reason that the facts would support a verdict of manslaughter. Appellant's contention would be correct if there was any testimony or any reasonable inference which the jury might draw from the evidence that would make a case of manslaughter. However, in this case the wildest stretch of the imagination cannot find any of the elements of manslaughter involved.

See Grant v. State, 172 Miss. 309, 160 So. 600; Morris v. State (Miss.), 174 So. 562; Adams v. State, 175 Miss. 868, 167 So. 59.

It is contended that there was no motive shown for the killing. Motive is not an indispensable element of murder.

House v. State, 94 Miss. 107, 48 So. 3; Pullen v. State, 175 Miss. 810, 168 So. 69.

It is also contended that the act of the appellant in killing the deceased and his wife was the act of a person either insane, or acting in the heat of passion. This question was properly submitted and passed on by the jury.

Smith v. State, 95 Miss. 786, 49 So. 945, 27 L.R.A. (N.S.) 461, Ann. Cas. 1912A, 23.

I submit that from the evidence in this record a horrible and brutal murder is shown, an assassination, and that the appellant's admission of this killing, which was not objected to, without regard to the dying declaration as testified to by the sheriff, is sufficient to support the verdict of the jury.

Hawthorne v. State, 58 Miss. 778.


Dillon was convicted of murder of one Claudie Nichols and sentenced to death.

The lower court admitted in evidence a dying declaration of Nichols. Appellant says this was error; that the proof fails to show that the statement was made under a realization of impending death. As bearing upon that question the proof is that Dillon came to the home of Nichols about 2 o'clock at night; awakened and called Nichols to the door and immediately shot him with a small gauge shotgun, being at the time within a few feet of Nichols, the load of shot entering the left breast above and within about three inches of the heart, making a hole of about two inches; that Nichols walked and crawled a half mile to the home of a neighbor, who carried him to the Walthall Hospital at Tylertown, Mississippi, arriving there about 3 o'clock; that he had lost much blood, was extremely weak and suffering from shock. Nichols was placed upon an emergency operating table, and Dr. Crawford tried to dress his wound but did not undertake to operate. Dr. Crawford testified that Nichols was conscious and entirely rational but did not have a chance to live, although it is not shown that he told Nichols that. Thus situated and under these circumstances Nichols told the sheriff of the county more than once that he was going to die, and after so saying he made his declaration to the sheriff. He did die from this wound at 11 o'clock of the same morning. In the meantime the sheriff had been back to see him and he repeated to the sheriff that he was going to die, and never at any time after getting to the hospital did he indicate the slightest hope or expectation of living. It is clear that Nichols had no hope of recovery. He thought he was going to die and his statement was made under a sense of impending death. The declaration was competent. Jones v. State, 133 Miss. 842, 98 So. 340; Walton v. State, 156 Miss. 499, 126 So. 29; Dean v. State, 173 Miss. 254, 160 So. 584, 162 So. 155.

The state was granted this instruction:

"The Court instructs the jury for the State that in case you may return either one of the following verdicts:

"1 — `We, the jury, find the defendant guilty as charged'. (In which event it will be the duty of the Court to sentence the defendant to death in the electric chair) or,

"2 — `We, the jury find the defendant guilty as charged and fix his punishment at life imprisonment in the state penitentiary'. (In which event it will be the duty of the Court to sentence the defendant to life imprisonment in the State penitentiary.)

"3 — `We, the jury find the defendant guilty as charged but disagree as to his punishment.' (In which event it will be the duty of the Court to sentence the defendant to life imprisonment in the state penitentiary.) Or,

"4 — `We, the jury find the defendant not guilty'."

It will be noted this instruction did not authorize the jury to return a verdict of manslaughter. Nor did the defendant request a manslaughter instruction. Appellant urges that the failure of the state's instruction to tell the jurors they might return a manslaughter verdict is fatal error. A sufficient answer to that contention is that the proof in this case shows no element of manslaughter. All of the proof bearing upon the act of killing shows it was done in cold-blood, without the slightest provocation or threat on the part of Nichols, with no mitigating circumstances whatsoever. On the same occasion and as a part of the same drama, appellant killed the wife of Nichols. In addition to this, Dillon's defense was insanity — not that he killed Nichols in the heat of passion, or in a sudden affray, or under any other condition which might be manslaughter. The jury rejected the insanity plea and the evidence abundantly sustains the verdict. The failure to inform the jury that it might convict appellant of manslaughter under these conditions was not error. Morris v. State (Miss.), 174 So. 562 (not reported in state reports); Grant v. State, 172 Miss. 309, 160 So. 600.

Appellant says that the conviction of murder cannot stand because the evidence fails to show that appellant entertained malice. The jury was properly instructed on that question, both by the state and the defendant. As to the evidence, the sheriff testified that appellant made to him a statement, detailed by the sheriff in these words, "He said he lost his pocketbook and he went back down there to get it. That he had been there that Sunday evening and this was sometime in the night. He didn't know what time it was. He said it was a good while after the Doodle Bug, the New Orleans bus, run, and he went back and asked Nichols to bring him a splinter and match to hunt his pocketbook and when he came out the door Nichols had a gun and he shot him." Defendant did not take the stand, and, therefore, did not deny making this statement. Aside from whatever inference of malice may properly be drawn from the killing of a human being by shooting him with a shotgun, a deadly weapon per se as here used, this statement shows with certainty that Dillon had the deliberate intent to kill Nichols, and that he did so without justification, assuming, as the jury found the fact to be, that he possessed mental responsibility for his act. Carter v. State, 147 Miss. 171, 113 So. 177; Durr v. State, 175 Miss. 797, 168 So. 65.

There is no reversible error, if error at all, in this record, and the sentence of the lower court must be, and it is, affirmed, and Thursday, August 10, 1944, is set for the date of his execution.

Affirmed.


Summaries of

Dillon v. State

Supreme Court of Mississippi, In Banc
Jun 12, 1944
196 Miss. 625 (Miss. 1944)

interpreting section 2218(f), Code 1942, which is identical to current section 97-3-15(f)

Summary of this case from Ford v. State
Case details for

Dillon v. State

Case Details

Full title:DILLON v. STATE

Court:Supreme Court of Mississippi, In Banc

Date published: Jun 12, 1944

Citations

196 Miss. 625 (Miss. 1944)
18 So. 2d 454

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