Hester v. State , 144 Miss. 789 ( 1926 )

^* Corpus Juris-Cyc. References: Homicide, 30 C.J., p. 237, n. 32. In the circuit court of Pontotoc county, the appellant was convicted of murder, and was sentenced to the state penitentiary for life, and from this conviction and sentence he prosecuted this appeal.

The testimony offered by the state amply sustains the conviction of murder, while that for the defendant, if believed, makes a case of self-defense. There is sharp conflict in the testimony as to who was the aggressor in the fatal difficulty. In this state of the record the appellant offered testimony of the details of a previous difficulty between the deceased and the appellant, which occurred about forty minutes before and grew out of the same cause as the fatal difficulty, and in which the deceased was the aggressor, throughout. This testimony was excluded, and the only assignment of error is based upon its exclusion.

We think this proffered testimony comes clearly within the doctrine announced in the case of Brown v. State, 87 Miss. 800, 40 So. 1009, in which Chief Justice WHITFIELD, speaking for the court, said:

"It is only necessary to say that the alleged previous difficulty, and the conduct and declarations of the parties therein, were all clearly competent under the recent case ofBrown v. State, 86 Miss. 511 (40 So. 737.). All that was done and said in both the difficulties, half an hour apart, grew out of the same common cause, and constituted in effect but one continuous difficulty." Brown v. State, 85 Miss. 511, 37 So. 957.

For the error in excluding this testimony, we think the judgment of the court below should be reversed and the cause remanded.

Reversed and remanded.