Jones v. State , 130 Miss. 703 ( 1922 )

Cook, J.,

delivered the opinion of the court.

The appellant, Sidney Jones, was convicted in the circuit court of Humphreys county of the murder of Charley Harper, and sentenced to the penitentiary for life, and from this conviction and sentence this appeal was prosecuted.

Tbe facts necessary to be stated are substantially as follows : For some weeks prior to the shooting, the appellant had been living with a woman named Sarah White, who had previously been intimate with the deceased. On the afternoon of the shooting, appellant and Sarah White came to Isola together. After* reaching there, they separated, and Sarah White proceeded to the home of Ethel Lee Glen, where she found Ethel Lee Glen, Amanda Smith, and Mary Blanden, all negro women. The Glen home is described by the witnesses as a shotgun house, composed of a front gallery, front room, middle room, and kitchen, with all these rooms adjoining, one behind the other in the order named. While these four women were in the middle room of this house, the deceased, Charley Harper, came in. Ethel Glen and Amanda Smith, witnesses for the state, testified that, after the deceased had been in this room a short while, he asked for a drink of water; that, upon being informed that there was water in the kitchen, he proceeded into the kitchen; that S'arah White also Avent into the kitchen; that after these parties went into the kitchen they Avere standing in a position where they could be seen by the witnesses, the deceased leaning against the door and Sarah White near the stove by the window; that they heard no conversation or dispute between the deceased and Sarah White; that at this point the appellant came into the room where they were and called for Sarah, and then, with an oath, pulled out his pistol; that they (the witnesses) then ran out of the house; that when they had run only a short distance they heard a pistol fire, and almost immediately the appellant ran out of the house, the pistol still being in his hand.

Sarah White, who married appellant after the shooting and before the trial, was offered as a witness for appellant, and she testified that when Charley Harper, the deceased, came into the house, she was standing at the kitchen door drinking water; that deceased told her that he wanted to talk to her and jerked her into the kitchen; that she protested and attempted to pull loose from him, but he struck her on the side of the head and knocked her onto the stove; that she then looked out through a window and saw appellant coming; that she told deceased that appellant was coming and if he did not turn her loose she would tell appellant what he was doing; that Ethel Lee Glen then ran into the room and informed deceased that appellant was approaching and ordered him to release Sarah; that deceased then commenced beating her, and continued to beat her until appellant appeared at the door of the room; that deceased knocked her down several times, once after appellant appeared at the door; that appellant ordered deceased to stop beating her; that deceased then picked up a fork from the table and advanced toward the witness and appellant, saying, with an oath, “I’ll fix both of you bastards;” that appellant then fired one shot; that she was on her knees between appellant and deceased when deceased picked up the fork and started toward them; and that during the time deceased was beating her she was making an outcry.

The only wound found on the body of deceased ivas a hole in the back part of the neck, and there was some effort to show by Dr. Taylor, a witness for defendant, that this wound had the appearance of an exit wound, but on cross-examination this witness admitted that, since he was unable to find any other wound, even in the mouth or throat of deceased he was unable to say that the wound in the back of the neck was not an entrance wound.

Shortly after the shooting, the deceased made a statement to his brother, Scott Harper, which was offered by the state as a dying declaration; the statement and testimony offered before the court on the preliminary investigation to determine the admissibility of the alleged dying declaration being as follows:

“Q. What was his answer to the doctor when he asked him how did he feel; begin there and tell just what you heard him say? A. He asked Dr. Taylor, £Is that you, Doctor?’ Dr. Taylor told him, £Yes, this is me, Charlie,’ and he told Dr. Taylor, £You can’t do me no good; I am dying and I am going on to Glory just as fast as time can roll,’ and he told Dr. Taylor Jesus was his doctor.

“Q. Then immediately following that what, if anything, did he say in reference to how the difficulty occurred? A. He said he didn’t know who shot him; all he could remember was hearing the report from the gun, and the next thing he remembered was falling. That is all he knew about it.”

On cross-examination this witness, Scott Harper, denied that the deceased said, in the presence of Dr. Taylor, that he wanted to go to Dr. Miller. Upon this testimony the court admitted the dying declaration. Dr. Taylor, a witness for the defendant, was examined in reference to the dying declaration, and he testified to substantially the same statement as the state witness, Scott Harper, but also testified that the deceased said several' times that he wanted to go to Dr. Miller.

The first and second assignments of error are based upon the admission of the dying declaration, the contention being that under the testimony above set out the trial judge was not warranted in finding that the declaration was made under a sense of impending death.

In view of the fact that it was in controversy as to whether the deceased was shot in the back, or whether at the time he was shot he was facing appellant and advancing upon him with a dangerous weapon, the statement made by deceased was material and Ave think the testimony offered at the preliminary examination as to its competency was sufficient to warrant the court in finding that the declaration was made under a solemn sense of impending death, and that it came within the rules announced in the numerous decisions of this court dealing with that subject.

It is next insisted that the court erred in granting the state the following instruction:

“The court charges the jury for the state that in trying this case you should not hunt for doubts, Avith the view of finding any excuse or apology for your verdict, nor should you' indulge in such doubts as are merely conjectural or chimerical; but the doubts which ought to make you pause and hesitate must be reasonable doubts, and they must arise out of the evidence or the want of evidence in this case. You are not required by the laws of this state to know that the defendant is guilty of the crime charged against Mm before you can convict Mm, and you should not hesitate to find him guilty because you are able to say, outside of the evidence, that he might have been innocent; but after carefully considering all the evidence, if you believe from all the evidence in the case beyond a reasonable doubt that he is guilty, then you should discharge your duty fearlessly under your oaths and under the laws, and say so by your verdict.”

This instruction is specially criticized on account of the use of the word “because” instead of “before” in the sentence reading, “You should not hesitate to find him guilty because you are able to say, outside of the evidence,'that he might have been innocent;” the contention of counsel for appellant being that this sentence precludes the jury from considering any doubts which may arise from a lack of evidence. It is difficult to understand the exact meaning of the instruction as given, and it should properly have been refused; but in view of the many skillfully drawn and exceedingly liberal instructions granted the defendant, covering repeatedly every element of proof required for conviction, we do not think this instruction could possibly have misled the jury as to the quantity of evidence or degree of proof required for conviction, and we have reached the conclusion that it does not constitute reversible error.

Appellant next assigns as error the action of the court in granting an instruction which told the jury that, in determining what weight they should give to the testimony of any witness, they had the right to take into consideration the interest such witness may have had in the result of the trial, if any such interest had been shown by the testimony in the case. It has been decided by this court in a number of cases that, where the defendant is the only witness testifying in his own behalf, this instruction is erroneous and, while the defendant did not testify in this case, counsel contends that this instruction singles out the wife of defendant, and that the rule applies as well where the wife of the defendant is the only witness testifying to material facts in her husband’s defense. We'do not think this contention is maintainable. The wife occupies the same position as any other witness, and under section 1923, Code of 1906, section 1583, Hemingway’s Code, any witness may be examined touching his interest in the cause.

Finally, appellant assigns as error the refusal of certain instructions requested by the defendant, one of which was a peremptory instruction to find the defendant not guilty. Under the proof in this record this peremptory instruction was properly refused. Likewise, the instruction that in no eyent could the jury find the defendant guilty of any higher crime than manslaughter. At the request of the state a manslaughter instruction was granted, and we do not think there is any reversible error in this record.

Affirmed.