May 1, 1933.
Conflicting evidence made jury case in murder prosecution.
2. HOMICIDE. In murder prosecution, dying declaration of deceased held admissible as against objection that it was not shown to have been made under sense of impending death.
At time of making statement, deceased stated that he was going to die and could not get well, and that he heard doctor say he could not get well, and that "my hands are getting cold now."
3. CRIMINAL LAW.
Argument that numerous instructions would be presented by defense counsel to befuddle jury, though not reversible error, should not be permitted in criminal case.
APPEAL from circuit court of Coahoma county. HON. WM. A. ALCORN, J.
Shands, Elmore Causey, of Cleveland, for appellant.
If all of the testimony in the case whether introduced by the State or by the defendant, leaves the question of the defendant's guilt in reasonable doubt, a judgment of conviction cannot be upheld.
Houston v. State, 117 Miss. 311, 78 So. 182.
The rule in Mississippi is that, before a dying declaration may be heard by the jury, the State must prove, beyond a reasonable doubt, that the deceased believed in his immediate and impending dissolution. He must believe that death is then upon him. The proof must show that the deceased has lost all hope of life. In other words, the declaration must come from a man who then believes that he is dying.
Lea v. State, 138 Miss. 761-770, 103 So. 368; Smith v. State, 161 Miss. 430, 137 So. 96; McNeal v. State, 115 Miss. 678-692, 76 So. 625; Washington v. State, 140 So. 532.
It was at least left in doubt whether the statement of the deceased that he would die from his wounds expressed and clearly proved a hopeless and fixed condition of mind, or but showed a momentary despondency.
Bell v. State, 72 Miss. 507, 513.
There was a failure to show that there was in the mind of the deceased, at the time of his making the statement a present belief of his immediate and certain death.
Counsel can never be permitted to argue to the jury against the instructions of the court nor indulge in any line of argument or comment that would tend to induce them to disregard the instructions given for their government.
2 R.C.L., page 421, par. 20; Baltimore Ohio R.R. Co. v. Boyd, 10 A. 315-318; Hitchins v. Mayor, 11 A. 826; Neff v. City of Cameron, 111 S.W. 1139, 1145.
The action of the court in reference to argument of the county attorney did not eradicate the error.
Brotherhood, etc., v. Trimm, 93 So. 533.
Gentlemen of the jury, take this rigmarole of instructions when you go out. This argument amounted to a disparagement of the instruction.
Winchester v. State, 163 Miss. 462, 142 So. 454.
A judge cannot be too careful and guarded in language and conduct in the presence of the jury, to avoid prejudice to either party.
Nelson v. State, 129 Miss. 288, 303, 92 So. 66.
Herbert Nunnery, Assistant Attorney-General, for the state.
Where there is a conflict of testimony this court will not disturb the verdict of the jury of the lower court.
Stewart v. State, 154 Miss. 858, 123 So. 891; Matthews v. State, 148 Miss. 696, 114 So. 816; Chandler v. State, 143 Miss. 312, 108 So. 273; Spike v. State, 120 Miss. 752, 83 So. 84; Wells v. State, 112 Miss. 71, 72 So. 859; Jackson v. State, 105 Miss. 782, 63 So. 269; Brown v. State, 103 Miss. 639, 60 So. 726.
The proof in this case was such as authorized the trial judge to believe beyond a reasonable doubt that the dying declaration was admissible.
McLeod v. State, 92 So. 828; Early v. State, 91 So. 417.
A reasonable and sensible analysis of the argument of the county attorney simply means that there were a number of instructions before the jury, all having practically the same meaning, but stated in a different way and after properly analyzed they all ultimately mean practically the same thing, which is true in most criminal instructions where a number are given.
The prosecuting counsel was only giving his interpretation of the instructions and the defense counsel had like opportunity in his argument to the jury to give his version of the interpretation and regardless of what interpretation the prosecuting or defense counsel places upon the instructions, the jury is presumed to have read the instructions before returning a verdict.
The appellant, Yarbrough, was tried and convicted of the murder of Willie Brooks, and was sentenced to the penitentiary for life.
A statement of the facts of this case would not be profitable. Suffice it to say that the evidence offered on behalf of the state, if believed, made out a case of murder. The evidence offered for the defendant, if believed, established self-defense. The defendant offered a dozen witnesses who contradicted Lizzie Dodson, a witness for the state, in that she had made frequent statements that Willie Brooks, the dead man, was to blame and had fired the first shot at the appellant, Yarbrough. There were other contradictions of witnesses in the record, all of which made it a case of conflict on the facts and a question properly and only for the jury. So there is no merit in the contention that this court should reverse the case because the evidence overwhelmingly preponderates in favor of the appellant.
It is urged that this case should be reversed because the court admitted the dying declaration of Willie Brooks, the decedent.
The court heard the evidence out of the presence of the jury. The deputy sheriff and his brother visited the deceased as he lay upon a cot in an outhouse, and the deceased said to them: "I am going to die . . . I can't get well . . . I heard the doctor when he told Mr. Culp that I couldn't get well, my hands are getting cold now . . . the medicine, the shot he give me is dying away, and I am beginning to hurt."
These witnesses, the deputy sheriff and his brother, said that prior to this statement Brooks had been singing, and at the time of the statement he appeared to be suffering intensely, and said, in effect, that he had been shot in the stomach at a time when he was unarmed, and that the appellant shot him first, and afterwards he went back in his room, got his gun, and discharged it in the back yard, and that he was suffering so he did not know why he fired his gun. The evidence shows that Brooks was carried to a physician, who gave him a "shot," and he was then brought back to the outhouse. His declaration was made about 10:30 at night, and the declarant died the following morning about that time, having been unconscious for some time before his death.
It is insisted that this declaration is incompetent because it is not shown that it was made under a sense of impending death.
The defendant offered witnesses who testified that the declarant stated to them that the defendant was not to blame, and that he (Brooks) fired the first shot.
Without again stating the rules which have been frequently stated in the opinions of this court, we conclude that the trial judge did not err in admitting this declaration as having been made under a sense of impending death. There appears no uncertainty in the mind of the declarant, whether the physician had made the statement that the deceased could not get well or not, that he (Brooks) believed he could not recover at the time he made the statement, and, under all the decisions in Mississippi, his declaration was competent. See Smith v. State, 161 Miss. 430, 137 So. 96, and the authorities there cited.
It is insisted that this case should be reversed because of the argument of the county attorney reading as follows: "Gentlemen of the jury, you have heard these instructions read; and you will hear a veritable book of instructions read by the defense counsel. There is but one law in a murder case; but you will find this law couched in a dozen, two dozen different ways, and different senses and different pages by the defense counsel. For what purpose? Just in order to befuddle your minds."
Objection was made to this argument. The court did not, in words, rule on the objection, but said, "It is argument, you can reply to it," to which exceptions were made. This was equivalent to an overruling of the appellant's objection.
We are not of opinion that the argument in this case permitted by the court constitutes reversible error; but it is our opinion, from an ethical standpoint, that such argument should not be permitted. It is the duty of the trial judge, under the law of this state, to grant proper written instructions for the guidance of the jury as the law of the case, and the principles upon which the jury is to apply the facts are therein stated, and, so far as that trial is concerned, they are the announcement of law by the court to the jury. Counsel ought never suggest to the jury that the instructions given by the court should be disregarded, or else the jury, by heeding the instructions, run the risk of being befuddled.
In the recent case of Winchester v. State, 163 Miss. 462, 142 So. 454, 456, we disapproved the following language: "Gentlemen of the jury, take this rigmarole of instructions when you go out" — but we did not, in that case, say that the language used constituted reversible error.
We have quoted the language in the case at bar in order to disapprove it, and to warn those officers of the law whose duty it is to present cases to the jury on behalf of the state that it is far better to stay within the beaten paths of legitimate argument; and courts which grant instructions ought not to be inferentially charged with befuddling the jury in granting instructions.
We find no reversible error herein.