Dee House v. State , 94 Miss. 107 ( 1908 )

Powell,^* Special Judge,

delivered the opinion of the court. This is an appeal from the circuit court of Lee county. Appellant was indicted for the murder of Jim Putt, and tried, convicted, and sentenced to the penitentiary for life. We gather from the evidence adduced that appellant and deceased, with a party of some four or five others, had gathered about dark at a small cotton house in an old field, and engaged in a game of craps and the consumption of several quarts of .whiskey. The gaming and drinking continued until between three and four o’clock in the morning. During this time several of the party retired from the game to go to .their homes for money. Appellant early in the night, getting out of money, pawned his pistol to one Hunter Moore, who was in the game, and some time about three o’clock in the morning, being again short of funds, left the house with his brother Porter, ostensibly to get more money. In a few minutes he returned with a double-barrelled shotgun, and some of the witnesses say Porter brought a gun also. The state witnesses-testify that at this point Dee House, the appellant, called from just outside the door of the cotton house to Jim Putt, who was on the inside, to come out as he wanted to see him, and that when Putt, the deceased, came out and started towards him, the appellant shot him with a gun when he was making no hostile demonstration whatever. - The witnesses for the defense denied all this, and claimed that the first shot was from a pistol and fired by some one unknown, other than appellant, and that before appellant fired he said, “Boys, don’t come on me.” There was a dispute as to the number of shots fired; the state witnesses testifying there were four shots from shotguns only, and the witnesses for the defense saying there was one pistol shot and two shotgun reports. There was also a dispute as to whether the deceased had a pistol or not; but when stripped, no weapon was found on his person, nor was any seen at the place where he fell. No one except appellant claims to have seen deceased' shoot at appellant or attempt to draw any weapon upon him; but he claims that deceased did both.

When deceased was shot, all parties fled from the scene of the killing, leaving deceased, who was shot in the stomach, lying upon the ground, where he remained until the doctor came, about an hour afterwards. The deceased lingered for two or three hours, and died. Before he died the attending physician told him he could not live more than five or six hours, after which he made tlie following statement as a dying declaration: “He said he wanted to see his father and mother; that he was going to die; that he believed he was, and would like to see his wife. He would like to talk to her before he died. He also said, if he had to die, he would die brave. He said that Dee House had killed him, and killed him without cause.”

There are eleven errors assigned by the appellant in his assignment of errors; but after a careful examination of the record, we find that only the first, fifth, and eleventh are worthy of serious consideration, and these are the only errors seriously urged sel for appellant.

The first error assigned is that the court erred in not sustaining defendant’s motion for a new trial on the ground that the jury found contrary to the evidence. In support of this assignment it is strongly urged that no motive was shown for the killing. It is tine that the record in this case does not disclose any adequate motive for the awful tragedy; but, while such disclosure may and often does give tone and color to the action of the parties, it is not absolutely necessary to show the motive in order to sustain conviction, for sometimes knowledge of the secret motive may die with the dead man, or be locked up in the bréa'st of the slayer. While the facts in this case are much disputed, we are not prepared to say that the jury, who heard all the testimony, saw the witnesses, and knew their manner of testifying, were not fully justified in the verdict rendered.

The eleventh error assigned is that the district attorney, in his closing argument, over the objection of defendant, was permitted to comment on the numerous instructions given for the defense, and to warn the jury of the necessity of doing duty to keep the country from running red with blood. In support of this assignment a long excerpt from the speech of the district attorney is copied in the record. This court has always jealously guarded the rights of defendants against unwarranted attacks by too zealous attorneys for the state, and has frequently reversed judgments in favor of the state for that reason; but in this case, after a most careful reading of his-remarks, we are unable to say that the district attorney has transgressed the bounds of legitimate argument or gone beyond the scope of reasonable comment.

The next and last assignment which we shall notice in the fifth in the appellant’s assignment of errors', to wit: “The court erred in admitting the dying declaration of deceased over defendant’s objections.” In support of this assignment two points are urged: First, that the proper predicate was not laid; and, second, that what was said was not the statement of a fant, but only the expression of an opinion.

First, then, as to the predicate. The deceased had been grievously .wounded in the stomach and was unable to arise, though he had dragged himself a few feet from the spot where he first fell. The attending physician had told him, but a short time before the declaration, 'that he had but five or six hours to live, and in fact he died within two hours. The declaration was as before stated: “He wanted to see his father and mother; that he .was going to die; that he believed he was, and would like to see his wife before he died; that, if I have to die, I want to die brave. He said that Dee House had killed him, and killed him without cause.” It is ably urged by counsel for appellant that the use of the words “if I have to die” by deceased raises a reasonable doubt of his entire conviction of impending dissolution. Taking into consideration all that deceased said, and the condition under which his declaration was made, we think deceased was fully conscious that his end was at hand, and that his declaration was made under the realization and solemn sense of impending death, and therefore hold that the proper predicate was laid.

The question as to the admissibility of the latter part of his statement, to wit, that “Dee House killed me, and killed me without cause,” presents a more serious question. The distinguished counsel for appellant very strongly urge that the expression “he killed me without cause” is not a statement of fact, but only the expression of an opinion, and hence not admissible in evidence. The courts of last resort in the various states are undoubtedly somewhat divided upon this question, as will be seen from an inspection of the very elaborate and able briefs of counsel on both sides of this case, though the large majority hold that the words used in this case, and kindred expressions, are admissible as statements of fact, and not mere expressions of opinion. .For an exhaustive collation of authorities on this point, see Wig-more on Evidence, vol. 2, § 1447, and notes thereunder. This court has twice directly passed upon the question at issue. In the case of Payne v. State, 61 Miss. 161, Judge Campbell, speaking for this court, says that the statement “that the defendant shot him without cause was a statement of fact, and not an opinion or inference of the declarant,” and was admissible. In the case of Power v. State, 74 Miss. 777, 21 South. 657, this court, speaking through Judge Woods, said: “The evidence of the statement made by the deceased to the accused to the effect that ‘you have killed me .without cause’ was properly admitted as a dying declaration, as well as a statement made to the accused and not denied by him.” Inferentially this court adopted the same view in the cases of Kendrick v. State, 55 Miss. 436, and Lipscomb v. State, 75 Miss. 559, 23 South. 210, 230.

To us the true and proper test as to admissibility is whether the statement is the direct result of observation through the declarant’s senses, or comes from a course of reasoning from collateral facts. If the former, it is admissible; if the latter, it is inadmissible. State v. Williams, 67 N. C. 12; Lipscomb v. State, 75 Miss. 559, 23 South. 210, 230. If the facts, as shown by all the testimony, as in the case of Jones v. State, 79 Miss. 309, 30 South. 759, could not have been known to the declarant, then his statement would necessarily be founded on inference, rather than known facts, and would be an opinion not admissible ; but if, as in this case, everything, as shown by all the evidence, was fully known to declarant, we fail to see why his statement that the killing was without cause was not the statement of a fact, and admissible. We prefer to stand with the majority of the courts and with our own previously expressed opinion, and hold that the declaration in this case was one of fact, and not one of mere opinion.

We therefore hold that the judgment of the lower court in admitting this dying declaration was- correct, and it is affirmed.

Affirmed.

* Judge Fletcher, having been of counsel for the state before bis appointment to the bench, recused himself in this case and Robert Powell, Esq., a member of the supreme court bar, was appointed and presided in his place.