Hunter v. State

102 So. 282, 137 Miss. 276, 1924 Miss. LEXIS 229

• Court: Mississippi Supreme Court
• Decided: December 22, 1924
• Docket: No. 24148
• Status: Published

Opinions

Eti-iridge, J.,

(after stating the facts as above) delivered the opinion of the court.

I will take up the several assignments of error and briefly discuss them.

The first assignment is to the action of the court in removing S. C. Broom as attorney for Phillip O’Berry. Prior to the removal, said Broom had moved a severance as to O’Berry and a_ joint trial as to the other defendants. Ordinarily no one may complain of the action of the court in this respect, except the principal defendant, whose rights are affected. The privilege of testifying or not testifying is the privilege of the defendant, and ordinarily codefendants cannot complain of any action in reference thereto, and Phillip O’Berry has not appealed, and his case is not before us. No facts are set forth in the record from which we could deduce that facts were learned, by reason of the relation of attorney and client between Broom and all of the defendants, that might prejudice the case of the appellant, and it might be that special circumstances could show prejudice,' but such is not the record before us. Ordinarily, persons indicted for a capital felony jointly with others should, or at least it would be proper to, have separate counsel, as their defenses might conflict one with the other, and we are unable to say that the court could not, in a proper case, do what -was here done. In our judgment, there is no merit in this assignment in this record.

The next assignment as to the competency of Phillip O’Berry as a witness. The examination set out in the statement of facts shows that Phillip had no proper conception of the existence of a state of rewards and punishments for good and evil conduct, and that he knew nothing of the legal consequences following perjury, and at common law he would not have been a competent witness. However, we have a statute which provides that religious belief or the want of it does not affect the competence of the witness, and this court, in the case of Peters v. State, 106 Miss. 333, 63 So. 666, held competent a witness, under the statute, who did not have the common-law qualification. Section 1919 .of the Code of 1906 (section 1579, Hemingway’s Code), is. referred to in this opinion, and the evidence of a child of tender years there held admissible. To the same effect is Trim v. State (Miss.), 33 So. 718, not officially reported. In this last case the witness was a child of five years of age..

While Phillip O’Berry is a person of very low intelligence and understanding, under these cases he would be a competent witness, and his want of mental capacity to understand the results of false swearing and lack of knowledge as to the consequences of good and evil conduct go to his credibility only.

The defendant objected to the introduction of the overalls until, by a proper test, it should be scientifically determined whether the blood on the garment was human blood or rabbit blood; it appearing that at the time of the arrest Isom Hagan stated to the officer that the overalls were his overalls, and that the blood thereon was rabbit blood. We do not think it was error to admit the overalls in evidence. The state is not compelled, in all cases, to make a test scientifically to determine whether the bloodstained garments are stained with human blood or animal blood. Whenever such test can be made, it ought to be done, but it is a test that is not easily made, and competent persons to make it are not always available.-

The defendant objected to a minute description of the scene and the body at the place of the homicide, insisting that no question was involved as to the character of the crime committed, but the only question was as to the connection of the defendants with it. A great deal of unnecessary testimony was introduced, bearing on the details of the tragedy under the peculiar facts of this case, but, as the state had to begin at the scene of the homicide, and trace out the causes of the murder and the connection of the persons who did it, and must establish murder, regardless of any evidence from the defendants, we are unable to say that it was reversible error to introduce this evidence.

It is also insisted that the evidence of Phillip 0 ’Berry is uncorroborated, and that he is an accomplice, and that his evidence alone is insufficient to sustain the verdict. It has been held in this state, in a number of cases, that the testimony of an accomplice, if a crediblé witness, is sufficient to sustain a conviction. However, the testimony of an accomplice has always been considered as being suspicious and untrustworthy, and that it ought to be scrutinized very carefully and weighed fully before a conviction is arrived at. In Keithler’s Case, 10 Smedes & M. 192, the court said:

“The testimony of an accomplice should be weighed with great jealousy and distrust by a jury, but it is impossible to say, as a question of law, that he should not be believed. The jury are to determine that from his manner, his consistency, and other attending circumstances. ' They are to judge how far his testimony has been corroborated, or they may believe him if they choose without corroboration.”

In Fitzcox v. State, 52 Miss. 926, the court quoted the above language with approval, and said:

‘'This view has been accepted as the rule in this state, and the language of the court in that case has, in our courts, constituted the basis of instructions in like cases since that time. Hence the practice with us is uniform and may be considered as established.”

And the same case quotes from Phillips on Evidence as follows:

“The sum of the argument as well as the rule, is thus stated: . . . 'Since accomplices are competent witnesses, it appears to follow as a necessary consequence that, if their testimony is belie\red by the jury, a prisoner may be legally convicted upon it, though it be unconfirmed by any other evidence. It is the peculiar province of the jury to determine upon the degree of credit to be attached to any competent evidence submitted to their consideration, and it has accordingly been laid down in many cases as a settled rule that a conviction obtained upon the unsupported testimony of an accomplice is strictly legal.”

In George v. State, 39 Miss. at page 570, 2. Morris, State Cases, 1404, the court said:

“Excluding the testimony of the witness Josephine, it is very certain that the facts proved by all the other witnesses do not, beyond a reasonable doubt, establish the guilt of the plaintiff in error, but it is equally certain that, giving full credit to her testimony, the proofs were altogether sufficient to warrant the verdict of the jury. There was a conflict between the testimony of the witness Eliza, a witness examined for tlie defense, and that of Josephine, and it is manifest that, if the jury had given full credit to the former, the result of their deliberations might have been very different. But in such a case —that is, where- there is a conflict in the evidence—it is the peculiar province of the jury to decide upon the credibility of the respective witnesses, and to believe the statements of those whom they judge entitled to credit. We are not prepared to say, under all of the circumstances proved by the testimony, that, according to the rules of law, the jury were not authorized to disbelieve the statements of the witness Eliza, and to credit the testimony of Josephine. . . .

“It is possible that the witness Josephine, in delivering her testimony, ma3r have been influenced by the hope or expectation that, by procuring the conviction of the plaintiff in error, she might escape the consequences of her own crime. But of this fact, as well as all of the circumstances in proof before them, the jury enjoyed a much better opportunity of forming a correct judgment than we possess, who can only look at the transaction through the medium of a record. They were clearly and fully instructed as to the law and their duties in reference to the testimony of the witness Josephine, and having, after a careful and dispassionate examination of the whole evidence, as we must suppose, given credit to her testimony, and rendered their verdict accordingly, we are not authorized to set it aside.’

Again, in Wilson v. State, 71 Miss. at page 884, 16 So. 304, Chief Justice Campbell, delivering the opinion of this court, said:

“The testimony in this case is very satisfactory as a support for the verdict. The convict and accomplice, Wall, is corroborated in his evidence by testimony tending strongly to convict Tom Wilson. Were this not the case, the jury might have convicted on the uncorroborated testimony of the accomplice, as has been often held. . . . The testimony of an accomplice is from a suspicious source. It is to be viewed with caution and carefully scrutinized, because of its polluted source; but, being competent and admitted, it is to perform its office, and, if it secures credit notwithstanding its source, it is to be acted on; if it is believed to be untrue, it is to be disregarded, just as any other testimony which does not command the assent of the mind. ’

These eases show that ordinarily the evidence of an accomplice may be sufficient to sustain a conviction. They involve cases, however, where the witnesses were not successfully impeached as being totally unworthy of belief.

In the present case the state’s witness not only is shown to be utterly unworthy of belief, but he is also shown to have no very high conception of right and wrong, a very low and limited knowledge of the limits of right and wrong, and of the consequences that follow. Our court has, however, passed upon cases in which witnesses, who were not worthy of credit, testified directly as eyewitnesses to facts which, if true, would make a case of murder and warrant a conviction, and have refused, in some instances, to uphold convictions based upon testimony of such unworthy witnesses. The case of Sykes v. State, 92 Miss. 247, 45 So. 838, and Sykes v. State, 89 Miss. 766, 42 So. 875, is one of the cases. The facts necessary to be understood in reference to this case are set out in the 89th Mississippi Report, and are as follows:

“Sykes, a negro, the appellant, was indicted and tried for the murder of another negro, George McIntosh, and was convicted and sentenced to suffer death. From the conviction and sentence he appealed to the supreme court. The decapitated body of the dead man, partially buried, was discovered a short distance from his home, and his head found in a nearby pool of water. The appellant, Sykes, and Martha McIntosh, the widow of the deceased, were severally indicted for the crime. The widow at first pleaded not guilty, but subsequently withdrew the plea and entered a plea, of guilty of being an accessory after the fact to the murder, and was held, pending sentence, at the time of the trial of the appellant. She was the principal witness for the state on appellant’s trial, and testified that he, having for some time Been seeking to ingratiate himself into her affections and alienate her from her husband, entered the dwelling house at night where she and decedent were sleeping, killed him with an ax; and compelled her to aid in dragging the corpse away; that he decapitated it and hid the head and body in different places. The 'state’s other testimony was merely circumstantial. The appellant, the only witness in his behalf, denied knowledge of the killing.

“During the argument of the case before the jury, an attorney for the state, employed to assist the district attorney, said: ‘Gentlemen of the jury, if you turn this' prisoner loose, he might be guilty of perpetrating his lust upon some of the white women of the country. I am satisfied that his motive for committing this crime was because he was lusting after Martha McIntosh, the wife of George McIntosh. You ought to convict him, because he might rape some of the white women of the country.’ The appellant’s counsel objected to the statements of the attorney to the jury, and the same were excluded. Thereupon the attorney further remarked to the jury, in resuming his argument: ‘Yes, gentlemen of the jury, I have no objection to my remarks being ruled out, but you know they are facts.’ The remarks before the jury, above quoted, were assigned as error.”

The first conviction was reversed on account of certain remarks made by the district' attorney; the court in that case not passing on the sufficiency of the evidence. The cause was remanded and retried on the same evidence, and a second conviction secured, which the court reversed because of the insufficiency of the evidence. The court said:

“This is the second appearance of this case in this court. "We think it was error in the circuit court not to have required the jury to clear up their manifestly cloudy verdict but we would not be willing to reverse for this error alone. The ground on which we prefer to rest out ruling is that the testimony of the woman, on whose testimony conviction was manifestly had, is utterly unworthy of belief. No conviction should be allowed to stand on testimony of this character.”

This was a case where the state’s .witness claimed to be an eyewitness, but on previous occasions she had testified directly contrary to her testimony in these trials.

Dill v. Slate (Miss.), 38 So. 37, is another case in which the court held that an eyewitness, one who claimed to be an eyewitness, testifying directly as to the guilt of the accused, was contradicted by the overwhelming weight of the evidence, and her testimony was set aside as being insufficient. The facts in that case are as follows:

“On the trial the evidence was in substance as follows: Deceased lived with •his father about ten miles south of Columbus, in Lowndes county, and on Monday morning of July 11, 1904, about half after eight o’clock, he left home on horseback to go to Columbus. Wade Witherspoon, for the state, testified that on Tuesday morning, July 12, 1904, he found the body of deceased in a thicket of woods near a. creek, about two hundred yards from the public road, and about a half mile from his home, and a pistol was lying near the body. W. E. Cox testified that he saw the body of deceased where it was found, and there were two bullet wounds in it, one where the ball entered, and the other where it came out of the body, and that a pistol was lying near the body. Catherine Newman testified that, on the morning of the killing, a big black man came by her house and asked which way deceased went, and he looked like defendant; but she could not say positively that it was defendant, as she had never seen him before. Missie Jennings, a negro woman, testified that she is the wife of Shed Jen.nings, who was in jail, charged with the same crime; that deceased was killed in about a quarter of a mile of her house; that she was on her way to get her cows that morning, and met deceased, and he asked her to meet him over there in the bushes, which she agreed to do, and went there, and, while she and deceased were in the act of illicit intercourse, defendant and her husband, Shed Jennings, came up, and defendant shot deceased with her husband’s rifle, and defendant then held deceased while her husband struck him over the head with the rifle, that after the killing she went on home, and appellant came to her house and asked her what her name was, and she told him, and that she asked him his name, and he told her, and told her who he was related to in the neighborhood.

“For defendant, Simp Thompson and his wife testified that defendant spent 'Sunday night before the killing at their house, about four miles south of the scene of the killing, and left their house late that morning on horseback, with Woodley Williams, to go to Mr. Bryant’s store. Woodley Williams testified that he and defendant left Simp Thompson’s house late Monday morning, on horseback, to go to Mr. Bryant’s store, and they stopped at Franklin’s quarters twenty-five or thirty minutes, talking to some colored preachers, John Moore and Tom Fell, and they then rode on to the store about a mile and a half away, and arrived there between eleven and twelve o’clock, and defendant was with him all the time until they got there, where he left defendant and went back. John Moore and Tom Fell both testified that they talked with defendant at Franklin’s quarters that morning, and Woodley Williams was with him; that defendant and Williams got there about half after ten o’clock, and stayed there about thirty minutes, and went in the direction of Bryant’s store. Felix Wilson testified that he rode with defendant and Williams to Franklin’s quarters on the morning of the killing, and they stopped there and talked with Moore and Fell, and they left there, and defendant did not have a gun. Taylor Harris, who cooked for Mr. Bryant at his store, testified that defendant g’ot to the store about eleven o’clock, or after, on the 'day of the killing, and that defendant stayed at his house that night. Bill Gandy testified that defendant ate dinner at his house the same day, and went to a nearby church to a funeral in the evening. Shed Jennings testified that he never saw defendant until he was put in jail in Columbus, charged with the crime; that he did not see him the day deceased was killed. Mattie Crump testified that she lived in Columbus, and defendant ate dinner at her house on Tuesday after the killing, and Lewis Dill testified that defendant spent Tuesday "night at his house, and left Columbus the next day for Alabama, where he lived. Defendant testified that he did not know deceased, and did not know and had never seen Missie Jennings, Catherine Newman, nor Shed Jennings, until he was placed in jail at Columbus. Defendant’s motion for a new trial was overruled, and he appeals.”

The court held that this evidence was insufficient to sustain a judgment of conviction.

It is insisted by the attorney general that the testimony of witness Phillip O’Berry has been corroborated in many respects by the circumstances and facts' in the case, and that his testimony, so supported, is sufficient to authorize the jury to find all of the appellants guilty beyond all reasonable doubt. The evidence, outside of 0’Berry’s testimony, is inconclusive and far below the standard required for conviction in circumstantial cases. The testimony of Phillip O’Berry is that, when he went into the store, Isom Hagan had hold of the deceased around the waist, with her hands pinioned behind her, and that Herman Williams was in front of her cutting her with a knife, and that Lonnie Hunter was beating her with his fist—to use his language, “all over”—that she had been stabbed a number of times, and was bleeding; that Herman was cutting her throat. Yet when these parties, Lonnie Hunter and Herman Williams, were arrested, there was no blood upon their clothing; yet the blood spurted all about in the store, and it is difficult to see how it would be possible for these persons to have been in the position O’Berry claims they were and not be spattered with blood. The testimony of Phillip 0 ’Berry is that this cutting and scuffling took place before he (O’Berry) struck the deceased with a bottle over the head; yet he does not testify that any outcry or screams were made, or any call for help, and it appears highly probable that, if the deceased and the defendants had been in the position which he testified they were, she would have cried out, because, according to his statement, the person holding her did not have his' hands over her mouth, and the person who cut her with a knife had stabbed her a number of times prior to cutting her throat. It seems more probable that the blow on the head may have been first inflicted.

The fact that the dogs trailed some person from the store to the place where Herman Williams and Lonnie Hunter were found is far from demonstrative proof that they were at the scene of the homicide at the time it was committed. The dogs had failed to trail some of the defendants; that is to say, the dogs, had not trailed the witness Phillip O’Berry, Isom Hagan, and Oscar Johnson, and the trailing did not correspond with his version of how he traveled from the scene of the homicide to his home. At best, the evidence furnished by bloodhounds is weak and unsatisfactory. It is true that many people have a superstitious reverence for bloodhound testimony, but in its very nature it is weak and unsatis factory, even where the hounds make no mistake and lose no trails. The evidence shows in the present case that they utterly failed as to three of the alleged participants in the homicide. They trailed two different routes from the scene of the homicide to the house where Lonnie Hunter and Herman Williams were sleeping. One of the witnesses said, with reference to one of these tracks, that the track appeared to be older than the other one which was trailed by a different route to the same place. The evidence does not show how many persons visited the store during the preceding twenty-four hours; nor does it show that no person had left the store, from the end of the gallery where the dogs were started. Of course, the dogs could not testify as to when the track was made-which they trailed. The evidence does not show how long such dogs could trail tracks after they were made under the conditions then existing.

Phillip O’Berry is contradicted by a large number of witnesses, who testified as to the whereabouts of the several appellants on the night of the alleged killing. None of these witnesses' were impeached as being unworthy of belief. Their evidence is consistent and not improbable on its face. There were three separate sets of witnesses, proving as many distinct alibis, and, unless all of these witnesses were falsifying, Phillip 0’Berry’s testimony could not be true. The presumption is that an unimpeached witness is credible and worthy of belief; that he is honest and intends to speak the truth. Of course, where two witnesses, whose credibility has not been impeached, and who .have not been otherwise shown to be unworthy of belief, testify to conflicting facts, the jury must judge as to who is telling the truth, and the personal appearance and general demeanor of the witnesses, and'the jurors’ knowledge of their general standing in the community in which they live, are considered as determining the probabilities of the truth.

The policy of the law is that it is better for the guilty to escape punishment that for the innocent to suffer punishment, and it is the settled policy of the state to require proof of guilt beyond reasonable doubt. It would seem an incredible -thing to say a witness, who has such limited knowledge, and such a limited appreciation of right and wrong, and of the consequences following wrong conduct, and who is shown to be utterly untrustworthy as a general proposition, could, when pitted against a large, number of witnesses whose credibility had not been impeached, and who apparently had no motive to testify falsely, so overcome such, preponderant witnesses as to remove all reasonable doubt.

The rule in circumstantial cases is even stronger than the doctrine of reasonable doubt, and requires the exclusive of every reasonable hypothesis other than that of guilt. See Hogan v. State, 127 Miss. 407, 90 So. 99; Taylor v. State, 108 Miss. 18, 66 So. 321; John’s Case, 24 Miss. 569; Morris’ State Cases, 608; Caleb’s Case, 39 Miss. 721; Morris’ State Cases, 1490; Algheri v. State, 25 Miss. 584; Morris’ State Cases, 658.

We are therefore of the opinion, that the evidence is insufficient to sustain the conviction. The trial followed shortly after the commission of the crime, and it may be that the evidence on a new trial by the state may be materially strengthened; at least, all the facts, whatever they may be, may be more fully developed. The judgment of the court below will therefore be reversed and remanded for a new trial.

Reversed and. remanded.