Hardy v. State , 143 Miss. 352 ( 1926 )

^* Corpus Juris-Cyc References: Criminal Law, 16CJ, p. 930, n. 93; p. 1053, n. 93; Homicide, 30CJ, p. 142, n. 74 New; p. 189, n. 83; p. 196, n. 80, 83; p. 328; n. 1 New; p. 346, n. 88; Witnesses, 40Cyc, p. 2656, n. 13; p. 2667, n 67; p. 2681, n. 40; p. 2683, n. 49. Appellant was indicted and convicted in the circuit court of the Second district of Jones county of the murder of Sallie Hill, and sentenced to the penitentiary for life. From that judgment appellant prosecutes this appeal.

Adam Hill was the husband of the deceased, Sallie Hill. He was night hostler at the lumber manufacturing plant of the Gilchrist Fordney Company in the city of Laurel in said county and district. At the time of the homicide Adam Hill was paying a good deal of attention to appellant, and of course his wife, Sallie Hill, was objecting. He took his evening meal at the lumber plant where he worked. Appellant for probably more than a year had been bringing him this meal prepared by her. He was still furnishing his wife, Sallie, some support, but appellant appears to have been the woman he was mainly interested in. Appellant and Sallie Hill at the time of the homicide had met at the lumber plant where Adam Hill worked. Appellant was there with his evening meal, while his wife was there to get some oil from the supply house of the lumber company. The two women had an altercation as the result of jealousy, each being jealous of the other on account of Adam Hill's relations to them. An altercation took place between appellant and Sallie Hill, during which the former stabbed the latter to death with a knife.

The state for conviction relied on the fact of the killing of the deceased by appellant with a deadly weapon in connection with conflicting statements on the part of the latter before and at the trial as to how the homicide took place — as to the weapon she used, and whether she used her own knife or that of the deceased, and other questions of fact attending the killing. The principal witness for appellant was Adam Hill, the husband of the deceased. We do not deem it necessary to go further into the details of the homicide.

Appellant assigns as error the action of the court in admitting the testimony of the state's witnesses as to a difficulty between appellant and deceased which took place on Sunday preceding the homicide on Tuesday. The court permitted the state over the objection of the appellant to show by two witnesses that on Sunday before the homicide on Tuesday of the same week appellant and deceased met and had an altercation; that they abused each other without restraint; that during the altercation appellant drew a knife on the deceased and threatened to kill her, and thereupon deceased ran and got out of appellant's way; that appellant threatened to kill deceased in the future if the latter did not refrain from interfering with appellant and deceased's husband. This evidence was introduced for the purpose of showing the state of mind between the parties as having bearing on the question as to who was the aggressor in the difficulty resulting in the homicide. Clearly the fact of the previous difficulty as well as the threat on the part of appellant were facts having a bearing on that question. Appellant did not question the right of the state to show the previous difficulty and the threat, but objected to the particulars and details of the difficulty. On the trial of a defendant on the charge of murder evidence of the details of a previous difficulty between the deceased and the defendant, in no way connected as to time with the difficulty resulting in homicide, is inadmissible. Only the fact of the previous difficulty and threats made at the time are admissible. The details cannot be gone into. Oftentimes to do so would be most unfair and prejudicial to the defendant.Raines v. State, 81 Miss. 489, 33 So. 19; Hughes v. State (Miss.), 38 So. 33; Rich v. State, 124 Miss. 272, 86 So. 770. The evidence of the details of the previous difficulty admitted by the court, we think, were such in this case as to be prejudicial to the rights of the appellant. The fact, if it was a fact, that appellant was the aggressor in the previous difficulty, that she then assaulted the deceased with a deadly weapon, that the deceased ran to escape death or great bodily harm at the hands of the appellant, and that appellant threatened to kill deceased if the latter did not stop interfering with her plans, were all calculated to be most influential with the jury and prejudicial to appellant. For the error in admission of this testimony the case must be reversed.

Appellant assigns as error the giving of an instruction for the state in this language:

"The court instructs the jury for the state that malice is implied by law from the nature and character of the weapon used, and that the use of a deadly weapon in a difficulty not in necessary self-defense is in law evidence of malice."

Appellant criticises the instruction because the word "deliberate" is left out of the instruction before the words "use of a deadly weapon." The criticism is well founded. But in view of the other instructions given for the state and for appellant, the jury could not have been misled on account of that word being left out of this instruction. Appellant criticises the instruction further on the ground that it had no place in the case because this is a case where the facts of the homicide were all in evidence and therefore no presumption on account of the use of a deadly weapon by appellant could be indulged in. When death is inflicted by the use of a deadly weapon and the killing is admitted by the defendant, it is assumed to be a malicious killing and therefore murder, and to change the character of the killing there must appear from the evidence in the case facts which explain the killing and change its character from an unexplained killing with a deadly weapon, and where the evidence relied on to change such presumption is unreasonable and improbable, the verdict of the jury adjudging guilt will not be disturbed; it is a question for the jury whether the presumption of guilt from the deliberate use of a deadly weapon has been overcome by such conflicting evidence. McGehee v. State,138 Miss. 822, 104 So. 150; Johnson v. State (Miss.),105 So. 742. We think therefore this instruction, with the addition of the word "deliberate" in the proper case, was appropriate under the facts in this case.

Adam Hill, husband of the deceased, was asked on cross-examination by the state if he had had a conversation with one Hendry at a particular time and place prior to the homicide, in which he stated to Hendry that he was trying to get a divorce from his wife, that he did not know whether he would succeed or not, but if she fooled with him he would kill her or get killed himself. This question was asked the witness over the objection of appellant. The witness denied making the statement to Hendry. In rebuttal the state introduced Hendry to contradict the testimony of Adam Hill in that respect. Hendry was permitted to testify over appellant's objection that on the occasion inquired about of the witness, Adam Hill, the latter told him that he wanted a divorce from his wife, Sallie Hill, and was going to get one if he could, and if she fooled with him he would kill her. It is argued by appellant that the court erred in admitting this evidence because it was on a collateral and immaterial issue. To sustain that positionWilliams v. State, 73 Miss. 820, 19 So. 826, is mainly relied on. To justify the action of the court the state relies on section 1923, Code of 1906 (Hemingway's Code, section 1583); Underhill on Criminal Evidence (2 Ed.) section 223, p. 405;Newcomb v. State, 37 Miss. 383; Mackmasters v. State,81 Miss. 374, 33 So. 2; Upchurch v. State, 96 Miss. 586, 51 So. 810; Magness v. State, 106 Miss. 195, 63 So. 352; Rouse v.State, 107 Miss. 427, 65 So. 501. The statute (section 1923, Code of 1906; Hemingway's Code, section 1583), so far as applicable here, provides that any witness may be examined touching his interest in the cause under trial, and his answers may be contradicted and his interest may be established by other evidence. We think the evidence involved was admissible under the plain provisions of this statute. However, resort to the statute is not necessary to justify its admission. At common law feelings, bias, and relationship of a witness are not collateral issues. The witness may be interrogated on cross-examination as to his interest, bias, or prejudice, provided the sole purpose is to bring out and elucidate the existing or previous relationship, feeling, or conduct of the witness toward the crime or the accused. Newcomb v. State, supra, is squarely in point in favor of the state's position. In that case the court permitted one of the witnesses for the defendant to be asked on cross-examination whether on a certain occasion the witness stated that if the defendant (who was the son of the witness) did not kill deceased she would not own him as her son. The witness denied making the statement, and other testimony was introduced to contradict her on this point. It was held that this evidence was admissible as going to the credibility of the witness; that for that purpose the predicate could be laid for contradiction by cross-examination, and the state would be permitted to introduce contradicting evidence. The opinion in that case is full and exhaustive; it is well reasoned and thoroughly elucidates this question. The other cases relied on by the state set out above tend to sustain the action of the court.

We do not think Williams v. State, supra, sustains appellant's contention. In that case Margaret Kelly, a witness for the defendant, testified as to the facts of the killing which she saw. She was asked by the state on cross-examination if on the morning of the homicide, at the body of deceased in the presence of certain witnesses (naming them), she did not say to Elsie Ross (wife of deceased), "I sent you word not to let your husband come down here. They made a plot to kill him three weeks ago." She answered that she made no such statement. The state introduced a witness who testified that she did make the statement. Defendant objected to such cross-examination of the witness, Margaret Kelly, and to the rebuttal testimony contradicting her. This court held that the action of the trial court in that respect was error; that the evidence brought out was on collateral issue and prejudicial to the defendant. The evidence held to be objectionable in that case, it is apparent at once, was not directed to the question of the bias or interest of the witness, Margaret Kelly. It was not aimed at her credibility as a witness. On the contrary, it was brought out for the purpose of showing in the form of hearsay evidence, the guilt of the defendant. The ground of the decision of the court in that case was that guilt could not be shown by the proof of a fact collateral by hearsay evidence. We do not think that case is in conflict with the Newcomb case and the authorities cited in support of the text of Underhill on Criminal Evidence above referred to. The credibility of the witnesses in a cause is always an issue of fact for the jury. It is not a collateral question, but one of the issues in the case often having much bearing and force on the main issues of fact. The testimony in question was that character of testimony, and it was not error for the court to admit it.

Appellant contends that the evidence was insufficient to sustain the verdict of murder rendered by the jury. Beside the positive facts testified to by the witnesses for the state and for appellant, the evidence was such as the jury might have reasonably drawn the inference that appellant was guilty of murder. We think, therefore, it was a question for the jury whether appellant was guilty of the crime of murder.

We find no merit in appellant's other assignment of errors. Whatever irregularities and errors there were, manifestly they were without harm to appellant.

For the one error alone in admitting the details of the previous difficulty the judgment of the court below is reversed and remanded.

Reversed and remanded.