McNeal v. State , 115 Miss. 678 ( 1917 )

Sykes, J.,

delivered the opinion of the court.

The appellant, Frank McNeal, was indicted for the murder of one Will Williams, and convicted of manslaughter, in the circuit court of Winston county. He was sentenced to serve a term of eighteen years in the penitentiary, from which sentence and judgment this appeal is prosecuted. There are a great many errors assigned as cause for reversal, but our view of the case only renders it necessary for us to notice those below mentioned.

One of the grounds assigned for a new trial in the motion therefor, and assigned here as error, is that the verdict of the jury was contrary to the law and the evidence. In considering this ground it is necessary for us to review, somewhat in detail, the material testimony in the case.

The undisputed testimony is that Bob Albritton had hidden a quart bottle containing about a pint and a half of alcohol in a field, and on the Sunday morning of the tragedy Albritton borrowed from the appellant a mule and then got the deceased, Will Williams, to accompany him in a search for this bottle. When they found it Albritton and Williams took several drinks, and then went to the house of McNeal to return the mule. Williams rode the mule, and Albritton walked with him. On arrival at McNeal’s house, Albritton took a seat upon the gallery, where there were several women, among them Mrs. McNeal, wife of appellant, Mrs. Albritton, wife of Bob Albritton, and her daughter, and Mrs. Johnson, a sister of McNeal. McNeal and Williams went to the lot together to put up the mule. The women having noticed that both Williams and Albritton were drinking heavily, if not then drunk, one of them, Mrs. Johnson, asked Albritton at that time to get Williams away from the house, as they were afraid of him. On the arrival of Williams and Albritton at the house, McNeal was there with the women, making preparation to take his sister, Mrs. Johnson, to her home. Albritton persuaded Williams to leave at that time, and these two proceeded to Albritton’s house, which was about two hundred yards from that of McNeal. Shortly thereafter, Albritton and Williams returned to McNeal’s house. They both seemed to be more under the influence of drink than on the first visit. The testimony shows Williams was staggering at the time.

The uncontradicted testimony here shows that Williams, over the protest of the women, and especially of Mrs. McNeal, entered the house, and in doing so pushed Mrs. McNeal forcibly away from the door of the room in which was McNeal. The testimony is somewhat contradictory as to whether or not Williams cursed and abused the women and McNeal while he was in the room. The witnesses who were in the room at the time he was there testified that he was cursing and generally boisterous in the room. The other witnesses testify that they did not hear him cursing while in the room. Mrs. Johnson went out to where Albritton was, and asked him a second time to see if he could not get Williams away from the house. Albritton and his wife and a Mr. Sullivan got Williams and persuadéd him to leave the house. Mrs. Albritton proceeded down the road some distance with him, and testified that Williams told her he would not return to McNeal’s house if she would go on away. She then left Williams and the men who were with him and returned to the house. Mr. Sullivan also soon left Albritton and Williams and returned to the house. Williams and Albritton then went to an old house about a quarter of a mile away from the McNeal house. The view between these two houses is obstructed. While Williams was in the room with. McNeal, the uncontradictéd testimony shows that McNeal was shaving, and that he tried to persuade Williams to leave and not disturb the women.

The testimony is somewhat conflicting as to when the defendant, McNeal, first got his pistol. The testimony of some of the women is that when they saw Albritton and Williams returning to the house a second time, upon the suggestion of some of them Mrs. McNeal hid the pistol, as they felt there might be some trouble at that time, and then later on she gave the pistol to McNeal. McNeal’s testimony is that at that time he put the pistol in his pocket to prevent" Williams from getting it in case he became violent. The three women witnesses, Mrs. Albritton, Miss Albritton, and Mrs. Johnson, testified that shortly after Williams and Albritton had entered this old house they heard Williams cursing very loudly, and stating that he was going back to McNeal’s house and violate the chastity of all of the women there. This fact is contradicted to a certain extent by the testimony of Bob Albritton, one of the state’s witnesses. Albritton was with Williams at this time. He states that Williams cursed and abused him, but at no time did he hear him threaten to return to McNeal’s house, as testified to by the above witnesses in the case. The testimony of this witness, however, in our opinion, is not entitled to very much credence. An affidavit had been made against him for the murder of this same man. All the testimony in the case shows that he was drinking very heavily, if not completely drunk, during all •of the' disturbance. His testimony is negative all the way through. Pacts that he should have known had he been lober he showed an uncertainty about in all his testimony.

The testimony of the defendant, McNeal, corroborated by all of the three women witnesses in the case, one of whom (Mrs. Albritton) testified for the state, is to the effect that when the women heard these .threats of Williams to return to the house, they requested McNeal to go down and see if he could not get Williams to go away. In pursuance of this request, McNeal went to where Williams was. - His testimony is that he met Williams and Albritton returning to the house a short distance from the old house where they had been. The testimony of Albritton is that McNeal came to the old house where they were. McNeal’s testimony is that after meeting them he persuaded Williams to return to the old house. While they were in this house, the uncontradicted testimony shows that Williams and Albritton engaged in a fuss, and Williams threw some of the alcohol in Albritton’s face, and Albritton finally left. Shortly after this Williams and McNeal left the house, and Albritton joined them on the road in a few minutes, and he and Williams engaged in a fight in which Williams knocked Albritton down and kicked him, and Albritton then retreated rather hurriedly to the home of McNeal.

When McNeal and Williams came into view of the women at the McNeal house, all of their testimony and that of Sullivan’s, which corroborates that of the defendant, is that Williams, with his left hand, had hold of McNeal’s right arm; that Williams was cursing, saying that he was going to McNeal’s house and carry out his threat against the chastity of the women there; that when they reached a distance of about fifty or sixty yards from the house, McNeal hollered to the women to run and get away from the house. When he did this some of the witnesses testify that they saw Williams, with his right hand, choke McNeal. Others did not see the choking, but all testify that Williams reiterated his intention of going to the house for the heinous purpose above stated, and then, while throwing his right hand to the hip pocket, cursed McNeal and told him that he would shoot him. At this time they testify that McNeal, with his left hand, drew his pistol from his right hip pocket, and shot Williams. The shot entered the right breast. Williams then dropped McNeal’s arm and McNeal retreated by backing away from Williams. Williams advanced several steps and then turned and walked away, and McNeal returned to his home. Only one shot was fired.

The testimony above enumerated is not contradicted by a single eyewitness to the difficulty. The witness Albritton at that time was sitting on the gallery of McNeal’s home. He contradicts this testimony to this extent only: He says that he did not hear Williams cursing and threatening the women. All three of the women witnesses and Sullivan, as well as the defendant, testified, however, to these facts.

Williams was subsequently carried home by the doctor with the assistance of several other men. The bed clothing upon which he was carried was lent by the defendant.

The testimony all shows that there was no ill feeling against Williams by McNeal; that McNeal was sober at the time; that when the women requested him to go down and try to get Williams away, he stated that he would do so; that he thought he could persuade him to go home and go to bed. Nowhere is it shown that he acted as a man in the heat of passion, or with ill feeling toward the defendant up until the time of the shooting. The defendant himself testified that he only shot Williams after Williams had stated that he was going to kill him, and he thought he was attempting to carry out this intention by throwing his right hand to his hip pocket. Both the men were in their overalls, and neither had on coats. The defendant testified that he did not know whether Williams had a pistol in his pocket or not, that he did not look to see, but that from his action and conduct he assumed that he had and that he shot to protect, as he thought, his own life. The defendant testified that just before the shooting, and while Williams had him by the right arm, he was doing what he could to persuade Williams to go home and not try to go to his house.

A witness was introduced for the state, who testified that a day or two after the killing he had a conversation with the defendant, in which.the defendant told him that before Williams threatened to shoot him he, the defendant, already had his pistol in his left hand. This witness further testified that the defendant told him he did not shoot until he was satisfied Williams intended to shoot him. He was also told by the defendant about the threats Williams was making to violate the chastity of the women just preceding the homicide. The only contradiction in this testimony and that of the defendant was that he stated he understood the defendant to say he had his pistol in his hand before Williams threatened to kill him.

It was shown that McNeal and the deceased were only slightly acquainted; that there was no ill feeling between them; that the deceased was a large and powerful man, and was very violent when drinking; that he was physically a more powerful man than the defendant. The testimony further showed that the defendant’s shirt and shirt sleeve were badly torn and his right arm bruised by the deceased.

At the time of the shooting it is to be remembered that the three women eyewitnesses and Mr. Sullivan, as well as the defendant, testified to the fact that the deceased, Williams, had hold of the defendant’s right arm with his left hand, and at that time stated his intention of going to the defendant’s house to violate the chastity of the women, and also stated that he would blow the defendant’s brains out, and coupled these declarations with a movement of his right hand to his hip pocket. Only a part of this testimony is contradicted by any witnesses, and that part is the negative testimony of the witness Albritton, who, the testimony shows, was drunk, and that testimony of his was that he did not hear these threats of the deceased.

On this testimony as to the immediate homicide, we unhesitatingly say that the court should have set aside the verdict and granted the defendant a new trial because the verdict was contrary to the overwhelming weight of the testimony. If the defendant’s life was in.real or apparent danger at the hands of the deceased, and he believed it, then he had a right to shoot to kill. If the defendant believed, and had reasonable ground to apprehend, a design upon the .part of the deceased, Williams, to violate the chastity of the women in his house, and that there was imminent dangler of this design being accomplished, then he had the right to shoot the deceased.

The next error committed by the trial court was in failing to exclude from the consideration of the jury the alleged dying declaration of the deceased made Monday morning to the witness Thomason. In the preliminary examination as to the competency of this testimony before the court, the facts were not as fully developed as they were before the jnry, viz. as to the exact time when the declaration was made, and the time when the deceased expressed the belief that he was going to die. In the testimony before the jnry, however, this fact was fully developed. The alleged dying declaration was in these words:

“He said the boys — he never called any name — come up there and persuaded him off, and Frank shot him and didn’t have any cause, and that he didn’t do anything to him, and said now they got him. ’ ’

There are two objections urged to the admissibility of. this declaration: The first is that it was not made while the deceased was under the realization and solemn sense of impending death. The second is that it was not a declaration of the facts of the homicide, but merely the expression- of the opinion of the declarant. As to the second question, we will say that the decisions in this state have gone as far as — and probably further than — those of the majority of the other states in construing declarations as facts. Statements that accused had shot the deceased “without any cause whatever” were held admissible in the cases of Payne v. State, 61 Miss. 161; Powers v. State, 74 Miss. 777, 21 So. 657. A statement that the accused had “killed him for nothing” was admittted in the case of Jackson v. State, 94 Miss. 83, 47 So. 502. Also, the statement that the accused “killed me and killed me without cause” was admitted in House v. State, 94 Miss. 107, 48 So. 3, 21 L. R. A. (N. S.) 840. While we think that these decisions carry the doctrine to its furthest extent, and we are not disposed to' overrule these cases, we shall certainly extend the doctrine no further.

On the other question, however, we think that the declaration was not admissible. The burden is upon the state to show that at the time the declaration was made the deceased believed that he was going to die and had no hope whatever of recovery. It must be made, as all our authorities hold, ‘ ‘ under the realization and solemn sense of impending death.” Fannie v. State, 101 Miss. 380, 58 So. 2; Bell v. State, 72 Miss. 507, 17 So. 232, and numerous other authorities. . '

The testimony of the witness Thomason shows that Sunday night, during conscious intervals which Williams had, he prayed to the Lord to help him, and said that the Lord had helped him once before when he prayed to him. Up until the time of this declaration, Williams had not expressed to this witness, or to any other witness so far as the record discloses, the thought that he expected to die. About an hour and a half after the declaration was made, this same witness testifies that'it was then that the deceased told him for the first time that he was going to die. Before this declaration could have been admissible, it was incumbent on the state to haye proven that at the time it was made the deceased must have believed in his immediate and impending dissolution. Lambeth v. State, 23 Miss. 354; Bell v. State, supra; Fannie v. State, supra; Sparks v. State, 133 Miss. 266, 74 So. 124. Proof of the competency of a dying declaration must be made to the court beyond a reasonable doubt before it is admissible is also held in the above authorities.

The witness Thomason testified that Mrs. Williams was in the room when the above declaration was made to him, but that he was not present during all the conversations between the deceased and his wife.

The court also admitted in evidence, over the objection of defendant, an alleged dying declaration made to Mrs. Williams, the wife of deceased, some time on Monday in the following words:

“I won’t be with you much longer; I have got to leave you. 0 Lord, what a pity for Frank McNeal to shoot a poor boy like I am for nothing. I never done anything to Frank. ’ ’

This alleged dying declaration is different from .one testified to by the witness Thomason, as shown on its face. From this declaration it appears that the deceased believed he was going to die. It is inadmissible, however, because it does not purport to state the facts of the homicide, but is at most a mere exclamation of self-pity of the wounded man. It was error to admit either of the above' alleged dying declarations.

Instructions Nos. 1 and 4, given the state, are assigned as error. The objection urged to instruction No. 1, however, is cured by the other instructions in the case. Instruction No. 4 has been repeatedly condemned by this court as being erroneous, but the court has uniformly declined to reverse a case merely for the giving of this instruction.

The giving of instruction No. 5 for the state was very serious error. It is as follows:

“The court instructs the jury that if you believe from the evidence beyond a reasonable doubt that the defendant killed the deceased in the heat of passion, without malice, at a time when he was in no danger, real or apparent, of losing his life, or of receiving great bodily harm at the hands of the deceased, you will find him guilty of manslaughter, and the form of your verdict will be: ‘We, the jury, find the defendant guilty of manslaughter.’”

It omitted, however, therefrom the words “without authority of law.” It is contended in the able brief of the assistant attorney general, Mr. Roberson, that the omission of these words from the charge could not have prejudiced the defendant’s case before the jury because his defense was self-defense. It is true that he testified that he shot the deceased in order to protect his own life. He was, however, entitled to the further defense that he had the right to kill the deceased to prevent him from committing a felony upon the women as we have before specifically stated; and the omission of the words “without authority of law” from this charge may have been understood by the jury as a practical exclusion of this defense. Section 1230, Code of 1906, under subsection “f,” states that it is justifiable to kill a human being “when committed in the lawful defense of one’s own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished.” Staten v. State, 30 Miss. 619.

In conclusion, it is our opinion that the lower court erred in admitting for the consideration of the jury the two alleged dying declarations of the deceased, in the giving of the fifth instruction to the state, and in not setting aside the verdict and granting the defendant a new trial because the verdict of the jury was contrary to the overwhelming weight of the testimony.

Reversed and remanded.