Smith v. State , 58 Miss. 867 ( 1881 )

Cooper, J.,

delivered the opinion of the court.

Appellant was indicted at the July term, a. r>. 1880, of the Circuit Court of Tishomingo County for the murder of one John Burt. The indictment was returned into court on the 12th, and a venire was drawn, returnable on the 16th. The defendant having made a motion for a change of venue, which was overruled, on the day fixed for trial moved for a continuance because of the absence of certain witnesses, for. whom he had caused subpoenas to be issued. The application was accompanied by an affidavit in which he stated that he expected to prove by them his own good character for peace in. the neighborhood in which he resided, and the bad character for truth and veracity of one Mrs. Lowrey, the principal witness for the State. The places of residence of the witnesses were not stated ; nor does the record show any subpoenas issued for them. Upon this application the cause was continued. At the following term of the court the application for a change of venue was renewed and granted, and the cause transferred to the Circuit Court of Alcorn County, where it came on for trial at the January term, 1881, at which time appellant again moved for a continuance because of the absence of the witnesses named in his application previously made to the Circuit Court of Tishomingo County. This application was accompanied by an affidavit which was nearly an exact copy of the one filed in support of the motion made in Tishomingo County, the only change made being by the insertion of a statement that he had caused subpoenas to be issued from the Circuit Court of Alcorn County as soon as the transcript of the proceedings had been filed therein. The court overruled the motion, and this is the basis of the first error assigned. While the refusal to grant a continuance may be assigned for error, it is still a matter which is left largely in the discretion of the presiding judge, who can, on a motion for a new trial, having heard all the evidence, review his own decision made on the application for continuance, and correct any injury done the defendant, by awarding a new trial. We have carefully considered the application, and for several reasons are satisfied that the court did not err in refusing the continuance. In the county from which the case had been removed, the defendant had been granted one continuance for the .purpose of enabling him to procure the attendance of the witnesses named. There is, furthermore, no allegation in the affidavit that there are no other persons known to defendant by whom the same facts could be proved, the nature of which (as stated in the affidavit) was such that there must, of necessity, have been a number of other persons by whom they could have been established; for it cannot be that the general character of a person is known to only two or three individuals. Ample time had elapsed after the first continuance, and before the trial, for the defendant to have caused process to issue for witnesses other than those named. It was not shown that the witnesses named had ever been summoned; their places of residence were not stated; the matter to which they were expected to speak was not material to the issue ; and, finally, the witness whose credibility was proposed to be assailed was so supported in her testimony by other facts and circumstances proved that it is scarcely possible that the effect of her testimony could have been obviated by any evidence of her bad character for veracity.

There is no merit in the objections to the indictment. An allegation in an indictment preferred by “the grand jurors of the State of Mississippi, empanelled, elected, sworn, and charged to inquire in and for the body of Tishomingo County, State of Mississippi,” that the offence was committed in “ said county of Tishomingo,” certainly charges the commission of the offence in the State. The charge that the crime was committed on the “twentieth day of April, 1880,” is equivalent to a charge that it was.done on the “ twentieth day of April, a. d. 1880;” besides, the indictment would be valid if no date was averred when the crime was committed. Code 1871, sect. 2803. The words contra forma are not essential. Code, sect. 2884. And the indorsement by the clerk, “filed,” is sufficient evidence that the indictment was properly found • by the grand jury and returned into court. Acts 1878, p. 199 ; Code 1880, sect. 3006. It was not error to exclude the juror T. B. Hale. Jones v. The State, 57 Miss. 684.

The evidence was rightly admitted to show the flight of. the accused. The fact of flight is one from which, with other facts proved, the jury may infer guilt. Its value is ordinarily slight, but circumstances may invest it with peculiar force. Such evidence is admissible upon the same ground that evidence of confusion, embarrassment, or prevarication is admitted. It is not usual for innocent men to flee from the scene of crime, and, ordinarily, it is a reasonable inference that one who fled because of a crime committed had some connection with it; but the evidence must, like all other testimony, be considered in connection with all the facts in proof, and that weight given to it which, on such consideration, it is entitled to have. Whart. Cr. Law, sect. 714.

We cannot say that the court erred in refusing to permit counsel for the accused to read to the jury, during his argument, extracts from ‘£ Phillips’ Famous Cases on Circumstantial Evidence,” or ££ certain decisions of the Supreme Court of this State.” The record does not show what it was he proposed to read, and we are therefore unable to say that the judge erred, or that the defendant was injured by such refusal. No unnecessary restrictions ought to be imposed by the court upon counsel during their argument, but much must be left to the discretion of the presiding judge ; and where complaint is made of an abuse of such discretion, it must be made clearly to appear in what the abuse consisted. In the absence of evidence to the contrary, we must presume that the court did not refuse any proper privilege or latitude to the counsel in his argument.

During the cross-examination of Mrs. Lowrey (who was the principal witness for the State), counsel for the defendant having proved by her that she was a widow, whose husband had some time before been killed, and that a negro and a white man had been tried and convicted for the murder, propounded to her the following questions, which were objected to by the district attorney: —

(The objections sustained, and the witness instructed not'to answer.)

1. Did you not testify in favor of the men who were charged with the murder of your husband? 2. Did you not do all in your power to have them acquitted of said charge? 3. Did you not employ counsel to defend, them? 4. Did you have any property, and wbat did it consist of? 5. Did you not give to the attorney a deed of trust on the property to employ him to defend the men charged with the murder of your husband? 6. Did you not run the property off to prevent him getting his money? 7. Do you not know that there is now a criminal charge against you in Oktibbeha County for removing property while under a deed of trust? 8. Were you ever in jail? 9. Don’t you know that you were arrested, tried, and placed in jail in the county of Oktibbeha under a charge of aiding in the murder of your husband? 10. How did you make your living while there? 11. Will you swear that you aided in no way in the. murder of your husband ? In addition to these questions, a number of others were asked for the purpose of showing bias against the defendant, which were not objected to, and were answered.

The object of the questions above set .out evidently was to attack the credibility of the witness, by showing the immorality of her previous life, and circumstances calculated to induce the jury to suspect her of complicity in the murder of her husband, or at least that she had sympathized with those who were guilty of his murder. In Head v. The State, 44 Miss. 731, it is said by the court that it is admissible to attack the credibility of a witness by proving that she was a prostitute ; and questions similar to the tenth question above were declared competent.

The authorities are exceedingly contradictory upon the admissibility of evidence of general bad character, other than that for veracity, to impeach the credibility of a witness. In Kentucky, Missouri, North Carolina, and Tennessee such evidence has been held admissible. 3 A. K. Marsh. 260 ; 17 B. Mon. 195; 13 Mo. 236; 2 Dev. L. 209; 1 Head, 38. In Illinois, Alabama, Iowa, Kansas, Maine, Ohio, Texas, and Virginia a contrary view prevails. 11 Ill. 867; 18 Ala. 521; 1 Greene (Iowa), 171; 4 Kan. 524; 19 Me. 375 ; 5 Ohio; 605 ; 23 Texas, 675 ; 6 Gratt. 706.

In this State it was held, in Newman et al. v. Mackin, 13 Smed. & M. 383, that evidence as to the character of the witness must be confined to character for veracity; and in an anonymous case (37 Miss. 54) it was held, that while in an action for bastardy it was competent to ask the prosecutrix whether or not, at about the period of conception, she had had intercourse with other persons than the defendant, it was not allowable to investigate her conduct or character at any other period of her life, because her chastity, or want of chastity, could not affect the issue then being tried, nor was it admissible so to impeach her credibility. We prefer the rule as established in the earlier cases, and overrule the case of Head v. The State in so far as this point is thereby otherwise decided.

The court below, at the instance of the State, instructed the jury as follows : “If the jury believe from the evidence that the defendant killed the deceased without provocation, and in the killing used a deadly weapon, then the law presumes malice aforethought, unless the defendant, by proof to the satisfaction of the jury, has shown that he killed the deceased in self-defence,.or by accident, or other excusable circumstances.”

In the case .of Hawthorne v. The State, ante, p. 778, we found it necessary to reverse the judgment because of an instruction very similar to this. The same result would follow in this case but for the fact that the error is cured by the instructions asked and given for the defendant. It is unnecessary to do more than repeat what was said in that case, viz. : that the defendant is not required, in any phase of any case, to prove his defence to the satisfaction of the jury, or to produce evidence to satisfy the jury. It is enough if either the evidence of the State or of the defence leaves the guilt of the defendant reasonably doubtful.

The court was asked to instruct the jury, for the defendant, that ‘ ‘ though there might have been an old difficulty between Smith and Burt, yet if this had been settled, and upon a new and sudden falling out Smith had killed Burt, such killing would not be murder, but manslaughter, and the jury should so find,” which instruction the court refused to give. This instruction was properly refused, both because there was no evidence which warranted it, and because it does not correctly define the crime of manslaughter. To reduce a homicide from the grade of murder to manslaughter, the killing must not only be done in the heat of passion, but the provocation must be sufficient to negative the inference of malice.

There is no error in the proceedings, and the judgment is affirmed.