Powell v. State , 145 Miss. 252 ( 1926 )

^* Corpus Juris-Cyc. References: Criminal Law, 17CJ, p. 334, n. 96 New; p. 335, n. 13; Homicide, 30CJ, p. 155, n. 87; p. 310, n. 25. Irvin Powell appeals from a conviction and a life sentence for the murder of Harve Cumberland. Reversal is sought on several grounds, but we see no merit in any of them, except one, and that is whether the lower court erred in refusing to permit the introduction of certain testimony, offered by the accused, in regard to the details of a conversation between the witness Meeks and the deceased, wherein the deceased had threatened the life of the appellant in connection with an attempted assault upon the wife of appellant about three months before the homicide. This is the only point presented on the appeal that merits discussion, and we shall determine this question after briefly stating the facts of the case, which are as follows:

During the morning of October 24, 1925, Harve Cumberland was standing on the sidewalk in the peaceful town of Philadelphia, talking to a friend. A crowd of people was on the sidewalk and in the streets near him. He had on a white shirt, and was without a coat or vest, and was unarmed, not even having a pocket knife on his person. His daughter, Maggie Jane Cumberland, ten years of age, was standing by him, holding his left hand, while his niece, Lucile Cumberland, nine years of age, was standing by him, holding his right hand.

Suddenly the appellant, Powell, walked up to Cumberland, placed a pistol against his breast, and shot him; the pistol being so close as to set fire to the clothing of Cumberland. Cumberland exclaimed, "Oh! my Lord!" And appellant said, "You know me now, God damn you!" Cumberland then threw up his hands and tried to get out of the way, but was followed by appellant, who again shot Cumberland in the left arm, near the shoulder, and while Cumberland was still running and dodging, in an effort to get out of danger, appellant followed him, and shot him in the back; and as Cumberland continued to run appellant followed him, and shot him again for the fourth time, this bullet striking him in the back and mortally wounding him, from which he died in a few minutes. Some of the persons in the crowd extinguished the burning clothes of deceased, and carried the body away.

These facts, narrated above, were testified to by a large number of disinterested eyewitnesses, and are practically undisputed in this record, except that the appellant and his wife testified that, when the appellant approached Cumberland, Cumberland put his hand in the bosom of his shirt to reach for a pistol, and that he shot the deceased in self-defense. However, three disinterested witnesses for the state testified that the wife of appellant could not see the shooting, because she was in a store and not present when it occurred.

The testimony of appellant himself showed that he shot the deceased several times while the deceased was trying to get away, and that the last shot, in the back, which witnesses say was the fatal shot, was fired, at a time when there was absolutely no claim of necessity for it. Therefore, taking the record as a whole, we feel justified in saying that the testimony in the case is overwhelmingly in favor of the state, and that it nearly reaches the degree of conclusiveness against the appellant.

The complaint of the appellant on this appeal, which we think deserves discussion, is that the court refused to permit the witness Meeks to testify that on an occasion about three months prior to the killing, while Meeks was working in the woods near the home of appellant, the deceased, Cumberland, told him (Meeks) that he had been up to the home of appellant and had there attempted to assault Mrs. Powell; that she resisted, and that he finally desisted in his efforts to assault her; that Meeks asked Cumberland, "Don't you suppose you will get in trouble about it?" and that he said, "I don't believe the little son of a bitch has got nerve enough to do anything to me; but, if he can beat me to it, he will just have to go with it." This threat, and the details with reference to the attempted assault on Mrs. Powell, were communicated to the appellant by Meeks. This testimony of Meeks was objected to, and the objection sustained by the court.

However, the court permitted Meeks to testify to the threats uttered by the deceased against appellant just a few days before the killing, and also threats of a similar character growing out of and connected with the attempted assault on appellant's wife, a few hours before the killing; and the appellant's wife was also permitted to tell the jury of threats by the deceased to kill appellant a short while before the shooting, all of which was communicated to the appellant; and finally the appellant testified in his own behalf that these numerous threats had been communicated to him, and that the attempted assault of his wife had been told to him in detail by his wife and Meeks, and that from this information he knew of the threats and realized their significance and seriousness. So it will be seen that the exact point is that the court erred in not permitting Meeks to testify as to the details of the threat and attempted assault, as told to him by Cumberland in the woods near appellant's home, about three months before the shooting.

The rule announced in Clark v. State, 123 Miss. 147, 85 So. 188, is cited as being applicable here, in that the appellant should have been allowed to show what was said in connection with the threat in reference to the assault upon appellant's wife, so as to disclose the significance and seriousness of the threat, to be considered by the jury in determining who was the aggressor in the difficulty.

We are inclined to view that the lower court should have permitted the witness Meeks to testify to the details of the threat in connection with the attempted assault upon appellant's wife, and we may say that the action of the court in sustaining the objection to Meek's testimony was error; but we think the error was harmless, because the court permitted testimony to go to the jury showing three different threats by the deceased against the life of appellant. Meeks testified to one threat made by the deceased about three days before the shooting, and another a few hours before the shooting. The wife of the appellant testified to a violent threat a short while before the killing, which was accompanied by a statement of the deceased with reference to the attempted assault upon her. She testified so as to fully inform the jury with reference to the assault upon her by the deceased. The appellant himself testified that he had been informed by his wife and Meeks fully as to the attempted assault, and that Meeks had told him all of the details of the conversation between the deceased and Meeks in the woods near appellant's home, with reference to the attempted rape of appellant's wife.

The three threats by the deceased against the appellant had been shown to the jury, and the jury was also well informed as to the attempted assault in connection with the threats. Therefore the action of the court in not permitting Meeks to testify to the details of the conversation between him and the deceased in the woods near appellant's home, about three months before the shooting, was harmless, and does not warrant a reversal.

As we view this record, it seems to us that the appellant is shown to be guilty by the overwhelming weight of the testimony, including his own. We think he secured the benefit of the facts and circumstances favorable to his case. The testimony of Meeks on the point mentioned above would have been cumulative, for the jury knew, through the testimony of the appellant and his wife, that the threat in the woods was connected with the attempted assault. Meeks was allowed to testify as to the threat made by the deceased just a few days before the shooting, and then the defendant told the jury all about the conversation between Meeks and the deceased in the woods, and that he had been informed of the different threats made by the deceased.

We cannot see that the exclusion of the testimony of Meeks was harmful to the appellant. A conviction would have followed, even though Meeks' testimony had been admitted to the jury.

The judgment of the lower court is affirmed.

Affirmed.