Elmore v. State , 143 Miss. 318 ( 1926 )

^* Corpus Juris-Cyc. References: Criminal Law, 17CJ, p. 138, n. 47; p. 170, n. 12; Homicide, 30CJ, p. 223, n. 55, 56 New; p. 304, n. 54; p. 310, n. 25; p. 332, n. 43. Jack Elmore appeals from a conviction on a charge of murder and sentence to death.

We see no good reason for setting out the evidence in this case because the brutal murder is not denied, but the defense of insanity was pleaded in avoidance. It is urged by counsel for the appellant that the testimony in the case shows conclusively that the appellant was insane at the time of the commission of the deed; that the admission by the court of certain testimony obtained by the district attorney on cross-examination, showing that appellant had sold liquor prior to the homicide, was error, and that the district attorney indulged in improper argument before the jury.

On the point that the testimony in the case conclusively showed that the appellant was insane at the time of the killing, we are unable to agree with this contention. We have carefully examined the evidence in the record, and it is our view that the testimony offered to show insanity was abundantly contradicted by testimony showing that appellant was sane at the time of the homicide. This was purely a question of fact for the jury to decide, and they found that appellant was sane when he committed the act.

The objectionable testimony complained of was competent on the issue of sanity in the case. See Smith v. State, 95 Miss. 786, 49 So. 945, 27 L.R.A. (N.S.) 461 Ann. Cas. 1912A, 23. We here quote from that case as follows:

"On the cross-examination of the defendant he was asked, and permitted to testify over his objection, to his conduct in several fights which he had had with various parties at various times, when there was no pretense of his not being sane. Other witnesses testified, over defendant's objection, to this conduct also. This action of the court is also assigned as error. This evidence was relevant to the issue and perfectly competent. Where the defense is insanity, general or partial, the door is thrown wide open for the admission of evidence; every act of the party's life is relevant to the issue and admissible in evidence. 1 Wigmore on Evidence, section 228, and authorities there cited;State v. Jones, 50 N.H. 369, 9 Am. Rep. 242."

The other ground urged by appellant for reversal, that the district attorney damaged the case of appellant by improper argument to the jury, we are unable to consider, for the reason that no bill of exceptions was taken showing what the district attorney said to the jury, and consequently the point is not presented to us on this appeal. Improper argument by district attorneys should be embodied in a bill of exceptions in order to be reviewed by this court on appeal.

From our examination and study of the record, we are unable to say that any substantial error was committed against the defendant in the court below. It appears that he received a fair and impartial trial on the question of insanity, the murder being denied, and the jury, upon sufficient testimony, decided the issue against the appellant, and we see no reason to disturb this finding of fact.

In view of the above conclusions, the judgment of the lower court is affirmed, and Friday, July 16, 1926, is set for the day of execution.

Affirmed.