Walker v. State , 143 Miss. 421 ( 1926 )

^* Corpus Juris-Cyc References: Criminal Law, 16CJ, p. 835, n. 17; Homicide, 30CJ, p. 316, n. 68. Upon an indictment for murder, appellant was convicted in the lower court of manslaughter, and sentenced to serve a term of five years in the state penitentiary.

The negroes on the Swayze and Oats plantations came together on a certain Saturday afternoon to engage in a match game of baseball. As frequently occurs, the umpire called a ball a "foul," and thereupon the two teams lectured the umpire as to whether the ball was a foul or a fair one, and dissension arose between the two teams and their adherents from the two plantations, each faction loyal to its side. In the midst of the melee, there being more than one hundred persons present, including some white people, the appellant, Wayman Walker, and the deceased, Jim Page, argued the question in true sailor style, complimenting each other with the pet profanity of the times, finally resulting in Walker drawing his revolver and firing a shot which crossed the home plate and struck the deceased about or near the spinal cord in the back, between the shoulders, from which wound the deceased became paralyzed and finally died.

Counsel for appellant insists that the verdict of the jury is contrary to the evidence, because the evidence is contradictory, and because many witnesses are not in agreement as to how the difficulty arose and terminated. It is certain that the defendant said, in answer to a question from the district attorney:

"He made me mad is the reason I shot him. Yes, sir; that is the reason I shot him, I was mad."

We do not find any good reason for reversing the finding of the jury on the facts, and think the jury warranted in arriving at the conclusion reached by it in this case.

The other assignment of error is that, the district attorney having shown by Mr. Oats that, while the case was being tried, he (Oats) approached one of the witnesses, and told him that he (the witness, Flannagan Turnage) "told a damned lie in this case," whereupon this colloquy ensued:

"By District Attorney: I would like for this witness to be held for contempt of this court.

"By the Court. Proceed with the case.

"By Attorney for Appellant: I want to take special exception to the action and remarks of the district attorney with reference to this witness. It is not shown that the witness has done anything improper, even to the witness Flannagan Turnage.

"By the Court: I don't think I am called on to decide. I will overrule the objection.

"By Attorney for Appellant: We except.

"By District Attorney: You have taken every way possible to get all the evidence you could in favor of this defendant, even to going out and cursing out the state's witnesses."

By the above excerpt from the record it will be seen that the district attorney undertook, in the presence of the jury, to have Mr. Oats committed for contempt in the intimidation of this witness, Flannagan Turnage. All the court did was to direct the district attorney to proceed with the case. Thereupon the court said on the objection:

"I don't think I am called on to decide. I will overrule the objection."

If the court had committed Oats in the presence of the jury, it would have been a criticism of the witness who had testified in the presence of the jury, which would have authorized a reversal of this case under the rule announced in Johnson v. State,105 So. 851. On the other hand, if the court had indorsed the action of the witness in calling another witness "a damn lie" with reference to his testimony in the case during the progress of the trial, the court would have indorsed the witness, which would have been, perhaps, an undue expression favorable to the witness which might have had undue influence on the jury.

While we do not intend to put the seal of approval on any effort of the district attorney to inject anything into the trial of a case other than the guilt or innocence of the defendant, together with the collateral matter that is made competent under the rules of law, yet we think the action of the court in this case was proper and not subject to criticism. The district attorney should not have undertaken to have the witness committed in the presence of the jury, but the court wisely declined to put the seal of its approval either upon the action of the district attorney or that of the witness.

We do not think this case should be reversed on this ground, and, having carefully gone over the record, we think the defendant has had a fair and impartial trial according to the rules and forms of law. We find no reversible error.

Affirmed.