Harper v. State

83 Miss. 402

• Court: Mississippi Supreme Court
• Decided: October 15, 1903
• Status: Published

Opinion

Teult, J.,

delivered the opinion of the court.

Appellant, J. J. Harper, was indicted jointly with E. T. McCormick for the murder of one William B. Lawrence. Severance was had. Appellant placed on trial, convicted of murder, appeals to this court, and assigns thirty-nine causes of error. The theory of the state was that appellant, with McCormick, jointly participated in the murder of deceased. The testimony of the state witnesses shows that upon the complaint of certain women appellant stated that he would get McCormick, and arrest or have arrested the deceased for some real or supposed violation of the law. Three shots were fired. The last two are definitely shown to have been fired by McCormick, and, while there was no eyewitness to the.first shot, immediately thereater McCormick was seen with a pistol in his hand, pointed in the direction of the deceased, and as this was the only weapon in reference to which any testimony was given, it appears that McCormick was the only person who actually fired a pistol; and it is upon this theory that the prosecution proceeded. The relative positions of the parties, and their actions at the very moment of the first shot, do not appear from the record. When the first eyewitness had her attention attracted to the scene of the homicide, the first shot had already been fired, and McCormick was in the act of firing again, while the deceased was either falling to the ground or attempting to raise himself from the ground, and appellant was standing a short distance from McCormick, and' some steps from deceased, with no weapon in his hands, and, so far as the witness could see or hear, in no way participating in the tragedy. The record discloses absolutely no suggestion or intimation of any motive either on the part of McCormick or appellant for the killing of Lawrence. McCormick was assistant foreman at the lumber camp, while appellant was the camp physician, deceased being a transient laborer.

Tinder this state of facts the first instruction for the state told the jury that if they believed that McCormick “shot and killed” deceased, and that appellant was present at the time of the killing, aiding and abetting McCormick in killing deceased, then appellant was guilty as charged. The error in this instruction is glaring and manifest, and is almost identical in terms with those which have been repeatedly condemned by this court. It omits all mention of the intention, malice, or premeditation of McCormick in killing deceased. We cite only a few of the more recent cases in which our own state reports abound condemning the instruction in question: Kearney v. State, 68 Miss., 239, 8 South., 292; Hunter v. State, 74 Miss., 515, 21 South., 305; Jackson v. State, 79 Miss., 45, 30 South., 39; Lofton v. State, 79 Miss., 723, 31 South., 420; Woods v. State, 81 Miss., 165, 32 South., 988; Thames v. State, 82 Miss., 667, 35 South., 171. TJnder the terms of this instruction, whether McCormick was justifiable in killing Lawrence on the plea of self-defense, or whether he was guilty simply of manslaughter in killing because it was done in heat of passion, in either event the jury was instructed that if McCormick “shot and killed,” and appellant aided or abetted therein, that then, without reference to tbe guilt of McCormick, tbe actual slayer, tbe appellant, tbe alleged participant, was guilty of murder. Under tbe undisputed facts of tbis record, in wliicb it is not denied tbat deceased came to bis death at tbe bands of McCormick, tbe effect of this instruction was to say tbat, as there was no dispute on tbis point, tbe jury should convict appellant of murder, if they believed merely tbat be was present at tbe scene of tbe killing and participated therein. McCormick might have been justifiable, yet appellant was to be convicted of murder. McCormick might have been guilty of manslaughter, yet appellant was to be convicted of murder. Tbe actual slayer might not have violated tbe law, yet tbe jury was instructed to convict tbe bystander if he aided, abetted, or participated in tbe killing. A guilty accessory presupposes a guilty principal.

Having thus, by tbe first instruction for the state, limited the consideration by the jury to tbe single fact whether tbe appellant was present at tbe scene of tbe killing, aiding and abetting therein, tbe court, by tbe .second instruction for tbe state, told the jury tbat if appellant “aided or abetted or encouraged such murder by word or act or deed, or in any other way,” tbat they (tbe jury) were to find appellant guilty as charged. Tbis instruction is, in our judgment, based upon a total misconception of tbe true legal principle. It is well settled tbat one who is present with an avowed intention to aid is a participant in a homicide, or one who, though not present, counsels a homicide, is an accessory before tbe fact, and therefore, under our law (Code 1892, § 950), deemed and considered a principal. Hodsett v. State, 40 Miss., 522; Unger v. State, 42 Miss., 642. But tbe instruction now under consideration is an unwarranted extension of tbis rule. It does not state tbat appellant was present at tbe scene of the homicide; therefore he could not be, under tbis instruction, convicted as a participant upon tbat theory alone. It states that, if he aided or abetted or encouraged such murder by “word or act or deed, or in any other way,” then be was guilty of murder. In this connection, upon wbat legal principle was tbe expression “in any other way” warranted? If one is not present at tbe scene of tbe homicide, and bas not aided, abetted, or encouraged tbe slayer by act or word or deed, in wbat other way can be be held to be an accessory? For wbat other act can it be said that be in any way participated in tbe homicide ? It is undoubtedly true that, to convict a person as an accessory before tbe fact, one of two things must exist: be must either be present with tbe intention to aid or assist in tbe killing, or, though not present, must counsel, procure, or command tbe killing. Tbe second instruction given for tbe state does not meet this requirement.

A strikingly clear and accurate statement of tbe rule is found in' that very valuable work, McClain on Criminal Law, cb. 15, sec. 194, as follows: “Some degree of participation in tbe criminal act must be shown in order to establish any criminal liability. Proof that one bas stood by at tbe commission of a crime without taking any steps to prevent it does not alone indicate such participation or combination in tbe wrong done as to show criminal liability, although be approve of tbe act. Even tbe fact of previous knowledge that a felony was intended will not render one who bas concealed such knowledge and is present at tbe commission of tbe offense a party thereto.” See, also, 9 Am. & Eng. Enc. Law, 575; 2 Thompson, Trials, sec. 2216.

Tbe fifth instruction for tbe state is also manifestly erroneous. By it tbe jury was told that, in order to warrant them in finding appellant guilty of tbe murder of Lawrence, “it is not necessary to prove a conspiracy between appellant and McCormick to kill Lawrence, or to do any violence to him”; that it is not necessary to prove that Harper fired a shot at Lawrence, or told McCormick to shoot Lawrence; but that tbe jury ought to convict Harper of murder if they believed that Lawrence was killed, and that Harper “aided, assisted, or encouraged such killing by anything said or done by bis presence for that purpose, or in any other way/7 This instruction not only falls within the condemnation of the principle announced in the consideration of the preceding instruction, but it goes still further. The legal effect of this instruction was to say to the jury that, though Harper and McCormick approached Lawrence upon a lawful mission, with no intention of doing any violence to his person, and that thereafter, if for any reason, upon any provocation, McCormick killed Lawrence, and that Harper encouraged such killing by his presence or in any other way, then, without any reference to the guilt of McCormick, the jury should convict the appellant of murder. Another error in the instruction is that it is not based upon any evidence disclosed by this record. There is absolutely no testimony on the part of the state proving that Harper, at the scene of the homicide, either said or did anything showing any participation in the killing of Lawrence. It is clearly not the law that a bystander, or one who goes with another upon a lawful mission, or at least without any criminal intent on his part, can be held guilty of murder without affirmative proof of some wrord of encouragement spoken or overt act committed on his part, evincing a design to participate in the killing. State v. Hickman, 95 Mo., 322, 8 S. W., 252, 6 Am. St. Rep., 54; Owens v. State, 80 Miss., 510, 32 South., 152.

The sixth instruction for the state informed the jury that it was their duty to find appellant guilty as charged if they believed appellant was present “with the design to give assistance, if necessary, to McCormick, when he killed Lawrence, or was present with a design to encourage, incite, or approve of such killing of Lawrence.77 The errors in this instruction are many and apparent. It charged the jury to convict appellant of murder if they believed he was present with the design to approve of the killing of Lawrence by McCormick, whether such killing on the part of McCormick was or was not itself murder. We are not unmindful of the fact that the courts have occasionally employed the term “approve77 in similar cases, but the sounder reasoning unqualifiedly condemns its use in this connection. The very expression “approve” conveys the obvious meaning of a deed already accomplished, and one committed by another party. One who tacitly approves of or silently consents to the killing of any person cannot, under any rule of law, be held to have aided or abetted in such killing. The error in the instruction becomes only the more vicious when it is noted that the killing, for the approval of which the bystander is to be condemned, is not, by the terms of the instruction, necessarily a crime at all. Would a conservative, peaceful citizen, who, in the discharge of some duty, or upon some lawful mission, goes with another in search of a third person, with no intention on his part to commit any crime, or to do any violence to such third person, and a sudden altercation arises, in which, justifiably or not, his companion kills the party whom they are seeking, if he approve of such killing, be guilty of murder ? The question answers itself in the negative. “One may rejoice over a murder after its commission without for that being criminally liable.” Cooper v. Johnson, 81 Mo., 483; Cabbell v. State, 46 Ala., 195. In True v. Commonwealth, 90 Ky., 653 14 S. W., 684 — -a murder case, in its salient facts strikingly similar to the case at bar — the court says: “The. words ‘encourage, aid, or abet’ mean or imply the will of a person has contributed to the act actually committed by another, and fully and accurately describe an accessory before the fact, if he is too far awajr to aid in the felonious act, or a principal in it if near enough to aid. And so the words ‘counsel, advise, or assist’ may be, and frequently are, used to describe the offense of a person who, not actually doing the felonious act, by his will contributes to or procures it to be done, and thereby becomes a principal or accessory according to the situation he may be in at the time. But the words ‘approve of’ and ‘consent to’ do not, singly or combined, express the idea of willful contribution to or procurement of a felonious act, which is necessary to’ constitute guilt; for a person may be present, and heartily approve of an act after it is done, without being at all willing to or capable of aiding, advising, or procuring it done, especially if it be felonious; or he may consent in the sense of offering no resistance to commission of it without the slightest contribution to it by his own will. It seems to us the instruction must have been necessarily misleading, and therefore prejudicial to the substantial rights 'of the defendant.”

The attorney general, in his forceful presentation of the cause of the state, urges that, even if it be conceded that the instructions) for the state above referred to are erroneous, still the judgment .should not on that account alone be reversed, for the reason that the numerous instructions granted for the appellant correctly announce the propositions of law applicable to the issues involved. Considerable confusion has crept into’ the decisions of the various courts on the question as to the extent to which errors in instructions given for one side can be corrected by the instructions, properly drawn, granted to the other. The true rule, as we apprehend, is this: Where an abstract proposition of law is incorrectly announced by an instruction, and the same of similar propositions of law are thereafter correctly set forth in other instructions in the cause, then if, talc-ing the instructions on both sides as a whole, the court can safely affirm that no harm has been done to either side, and that the right result has been reached, the verdict of the jury will not, in such cases, be disturbed. Skates v. State, 64 Miss., 644, 1 South., 843, 60 Am. Rep., 70. But where, as in the instant case, the court undertakes to collate certain facts and, making a concrete application of the law to such facts, instructs the jury to bring in a stated verdict if they believe in their existence, and the facts therein stated will not legally sustain the verdict directed, such error cannot be cured by other instructions; the reason for the difference being that in the first instance it is simply an erroneous statement of a legal principle, which may or may not mislead the .jury, according to the varying circumstances of causes, but in tbe latter instance, where a verdict is directed to be based upon tbe facts stated in tbe instruction, other instructions embodying other and different statements of facts and authorizing verdicts to be predicated thereon, do not modify the erroneous instruction, but simply conflict therewith. If, by an erroneous instruction, a jury be charged to convict if they believe certain facts to exist, and by another instruction the jury be told that they should acquit unless they believe that certain other facts also exist, these instructions do not modify, but contradict, each other. The one is not explanatory of the other, but in conflict therewith. In such a state of case the jury is left without any sure or certain guide to conduct them to the proper conclusion. Hawthorne v. State, 58 Miss., 778; Collins v. State, 71 Miss., 691, 15 South., 42; Josephine v. State, 39 Miss., 647; Owens v. State, 80 Miss., 499, 32 South., 152.

The court gave for the defendant thirty-four skillfully drawn instructions in which the theory of the defense was fully set out. Under this state of facts we do not deem it necessary to consider critically the action of the court in modifying three other instructions or in refusing eight, which were also asked. The rule is stated in Mabry v. State, 71 Miss., 716, 14 South., 267, that, where a sufficient number of instructions have been granted for the defendant, errors assigned as to the refusal of certain other instructions would not be considered “unless it shall appear that the jury was not furnished a sufficient guide for their proper determination of the case.” In the case at bar the side of the defendant was most fully, clearly, and forcibly presented in all its varying phases by the instructions which were granted in his behalf. It is true that instruction No. 45 should have been granted as asked, inasmuch as the court had granted instruction No. 6 for the state, but, as here-inbefore ¿hown, the action of the court in granting the sixth instruction for the state was error, and, as that instruction will not be given in its present shape upon another trial hereof, neither should an instruction containing the converse of the proposition be granted for the defendant.

The assignments of error based on several causes stated in the motion for a new trial and the motion in arrest of judgment cannot, in the nature of things, occur upon another trial of this cause. It is not necessary, therefore, for us to consider or decide them. Many other assignments are based upon the rulings of the trial court in admitting testimony of the acts, conduct, and declarations of the appellant after the homicide was committed. Without deciding each assignment of error as especially stated, we will content ourselves with announcing the rules which should govern trial courts in the admission of such testimony. In considering the instant case, it should be noted that the entire prosecution is based upon the hypothesis that the appellant was present .at the scene of homicide, either as a participant therein or as an accessory before the fact, and therefore equally guilty with his principal. Looking at the case from this point of view, only such testimony of the conduct, acts, or the declarations of the appellant should be admitted to the jury as possesses probative force, or which tends to throw light upon the homicide, or show some motive on the part of appellant for his alleged participation in the homicide. It should be borne in mind that only relevant testimony should ever be by the trial court submitted to the consideration of the jury. It is for the judge to say what testimony is relevant and competent, and for ■ the jury to decide what weight shall be given to the testimony. As the jury is without authority to arbitrarily disregard any testimony admitted by the court, the mere fact of the admission is liable to influence a jury to give some weight to all testimony, for they may well reason that, if the testimony had not been competent it would •not have been by the court submitted to them. Thus, where a great mass of incompetent and irrelevant testimony is admitted over the objection of the defendant, his case may be seri-otislj prejudiced in tbe minds of the jury. In Shaw v. State, 79 Miss., 23, 30 South., 42, it is said: “None but material facts should be permitted to go to the jury, and they are not to be required to discuss the materiality of the testimony.” And the same rule is to be deduced from the opinion of the court in the case of Story v. State, 68 Miss., 627, 10 South., 47. Wharton’s Criminal Evidence states the rule thus: “If a person is on trial for the homicide, then against him are admissible all facts that sustain any hypothesis which implies his guilt. 'When it is his turn to develop his defense, then any facts are admissible that would sustain the hypothesis of his innocence. All facts that go either to sustain or impeach an hypothesis logically pertinent are admissible, but no fact is relevant which does not mate more or less probable such hypothesis.” Chapter 2, sections 23, 24. The true rule, then, in the case at bar, is this: The hypothesis of the state being that the appellant is guilty by reason of his participation in the shooting by McCormick of Lawrence, no testimony should be admitted which does not shed some light upon the acts of appellant, or in some way tend to support the hypothesis upon which the state seeks to justify his conviction. Applying this test, and without passing in detail upon the numerous objections disclosed by the record, it appears manifest that the testimony in reference to the fact that the wounded man was conveyed to a particular house was inadmissible because irrelevant. The manner in which the remains were dressed, and the further fact that some hours after death one eye was sunken, with blood oozing therefrom, were not admissible, because appellant’s connection therewith was not clearly shown, even if such testimony be otherwise competent. The many statements as to the illness or injuries of Lawrence, attributed to appellant, made after the wounds had been examined in the presence of appellant, the justice of the peace, and other witnesses, and by which' he evidently sought to discourage or evade all inquiries inspired by morbid curiosity as to the condition of tbe wounded man, are clearly of no affirmative probative force, and “sustain no hypothesis which implies his guilt.” They are not admissions showing a guilty knowledge, they are not confessions of guilt, they are not declarations against interest, and hence are incompetent. Gillum v. State, 62 Miss., 547; Chism v. State, 70 Miss., 742, 12 South., 852; Owens v. State, supra; Brown v. State, 78 Miss., 638, 29 South., 519, 84 Am. St. Rep., 641.

In the absence of affirmative proof showing participation in a homicide, testimony as to approval thereof, subsequent to its commission, of a desire to conceal the crime or to shield the real criminal, is incompetent on a trial for murder. Appellant was indicted and is sought to be convicted as a participant in, or an accessory before the fact to, the killing! He cannot, under this indictment, be convicted as an accessory after the fact. People v. Campbell, 40 Cal., 129; People v. Keefer (Cal.), 3 Pac., 818. Therefore, stated most strongly against him, and assuming that the hypodermic injections were made with a view of preventing the wounded man from making any statement of the circumstances attendant upon the homicide, this did not render Ms conduct in this connection relevant to the issue involved in this trial. If true, these facts tend to show that appellant was guilty only as an accessory after the fact. White v. People, 81 Ill., 333. The legal presumption of innocence protects the appellant from any inferences being drawn from an act, innocent in itself, in an effort to establish his guilt; and the record nowhere contains any evidence to justify the jury in reaching the conclusion that Harper did more in his ministrations to the wounded man than medical science dictated. The trial court, in ruling upon questions of this kind, should see that the appellant, if convicted, should be so only upon testimony competent and relevant. His cause should not be 'weighted down with a great mass of “trifles light as air,” innocent in themselves, but which being, by the ruling of tbe court, admitted on tbe part of tbe state and over tbe objection of tbe defendant, are liable to be considered by tbe untrained mind of tbe average juror, be'be ever so fair and conscientious, as gravely incriminating circumstances.

Reversed and remanded.