Owens v. State

80 Miss. 499

Opinion

Wiiiteieed, O. J.,

delivered the opinion of the court.

This case is not like that of Matthis {ante, 491) or Lester. In those cases the guilt of the parties was shown by overwhelming evidence of the most positive character.' This appellant was not present at the killing, and the effort here is to show that he was an accessory before the fact. Rut this rests wholly upon the testimony of Lester, a confessed perjurer. It was earnestly argued that Owens did not take the stand, and that no member of his family took the stand, to contradict Lester as to what Lester said occurred at Owens’ house between him and Owens. But the state must convict on affirmative testimony showing the guilt, not on the failure of the defendant to show his innocence. That innocence is presumed till the state has shown the contrary. The conversations overheard between Owens and others in the jail are not addressed to the point of showing affirmatively his guilt. They are not affirmative evidence of participation in the crime as accessory before the fact, and it is not, of course, argued that they involve any confession. They have their dire weight as evidence, but it is perfectly plain that this conviction must rest exclusively on the testimony of Lester.

On the trial of this- case the witness P. E. Mathews was permitted to testify to an alleged threat. What he says on that subject is as follows: “Q. State to the jury if you have ever heard him make a statement with reference to the killing of revenue officers? If so, state to the jury when and where it was, and what was said? A. Yes, sir; I heard him make a statement. (Counsel for defendant objected. Objection overruled. Exception taken.) Q. Tell the jury when and where it was, and what was said? A. I don’t remember exactly the date. It was some little time after Dave Bogers was shot at out here south of town. I had a conversation with him. By the court: About how long ago ? A. It was something over a year ago. My recollection is it was in the summer or fall of 3900. Q. At that time what was Dave Bogers? A. Deputy United States marshal. By court:: State the words that were said by Whit Owens ? A. I had a conversation with Mr. Owens here in town, near the federal court building. His statement to me was, if the revenue officers didn’t quit bothering out there, there would be some more of them. shot. (Counsel .for defendant objected as incompetent, too remote, etc. Objection overruled. Exception taken.) Q. Did you say anything to hifn, or him to you, further? A. Yes, sir; I told him that I thought it was improper to make that kind of a statement. (Counsel for defendant objected. Objection sustained.) By the court: I don't think Mathews’ statement to Owens is admissible, and it is excluded. A. His answer was, ‘I don’t mean that I will do it, but it will be done.’ That’s about his language, as well as I remember it. (Counsel for defendant objected, and moved to exclude all this testimony. Objection overruled. Exception taken.)” The court should have permitted what Mathews said to Owens to, go in evidence, if any part of the conversation were admissible. It was part of one continuous conversation, and what Mathews said to Owens is necessary to make intelligible Owens’ response, “I don’t mean that I will do it, but it will be done.” It is not possible to sustain the admission of 'this testimony on the theory that it shows a threat. It is perfectly plain that Owens did not threaten these two officers individually; and counsel for the state concede that, but they say that it was a class— revenue officers as a class — who were threatened. Threatened by whom? Owens did not threaten to do anything himself. It is impossible to take 'his language and work out of it, by any just reasoning, any threat that he was going to injure, or aid in injuring, anybody. On the contrary, he expressly disclaimed the purpose of shooting any one himself. “I don’t mean that I will do it, but it will be done.” We think it perfectly clear that the language used contained no threat, within the meaning of the law. It was error to admit this testimony. The language was used more than a year prior to this trial. There is nothing in the evidence to indicate that, at the time this alleged threat was made, Owens had any cause himself for personal animosity towards the revenue officers. The most that can be said was that he was describing a state of feeling that existed in his community towards revenue officers as a class, but when he couples with this statement the distinct declara tion, “I don’t mean that I will do it,” it'must be perfectly obvious that this falls far short of, stating any threat on his part that he indivdually would shoot, or aid in shooting, any revenue officer. Within none of the principles laid down in the law books as to what constitutes a threat can this language be held to be a threat. See Hinson v. Stale, 66 Miss., 532 (6 So., 463). It was therefore error to admit this testimony. It is too obvious for discussion that this testimony was prejudicial in the highest degree to the defendant’s rights. It must have weighed mightily with the jury. The same testimony was admitted in the other case against Owens. In one of these cases, singularly enough, the jury found the defendant guilty of murder, without fixing his punishment at imprisonment in the penitentiary for life; and in the other the jury, whilst finding him guilty of murder, merely fixed his punishment at imprisonment, for 'life.

In this case, in which the prisoner was sentenced to death, the court refused to charge the jury for defendant as follows: “The court instructs the jury that if they believe from the evidence that any witness has heretofore, or on this trial, sworn falsely to any material fact in this case, they may disregard the testimony of such witness altogether.” In the other case the court refused an identical instruction to the defendant in the following words: “The court instructs the jury that if they believe from the evidence that any witness has heretofore, or on this trial, sworn falsely to any material fact in this case, they may disregard the testimony of such witness altogether.” Both these instructions should have been given in the respective trials. The fact that the court had charged the jury, in an instruction telling them that they were authorized to-convict on the testimony, of the accomplice alone, that they were the sole judges of the credibility of the witnesses, does not cure this error, on the peculiar facts of this case; for here the whole case for the state depended absolutely upon the testimony of this one witness, Lester. Without his testimony it was, of course, impossible to convict defendant. He, and he only, testifies to the substantive facts, affirmatively showing the defendant to have been an accessory before the fact in this horrible assassination. The whole purpose of the testimony was to connect Owens with the hilling, and this connection is shown alone by the testimony of this witness Lester, and this witness is a confessed perjurer. There is scarcely a material fact in his testimony about which he does not confess that he de1 liberately perjured himself at different times. Nay, more than this, he actually confesses to deliberate perjury during the same examination in this case, contradicting under oath on the cross-examination the most solemn statements of .fact fresh from his lips on the examination in chief. Could there be conceived a case in which it was more vital to a fair and impartial trial that these two instructions should have been given? They go to the very soul of the defense, to wit, that the state witness was wholly unworthy of credit. It was not sufficient, therefore, to have stated incidentally that the jury were the sole judges of the'credibility of the witnesses, in the charge, not pointing specifically on that proposition, but on the totally distinct proposition that the jury might convict on the unsupported testimony of an accomplice. The principle of Green v. State, 55 Miss., 454, controls'here, wherein it was held error to refuse an instruction for defendant that the testimony of an accomplice should be received with great caution, and that the jury might disbelieve such testimony altogether, although the jury had already been charged that they were the sole judges of the evidence,- and might disregard the testimony of such witnesses as they did not believe. The charge in Finley v. Hunt, 56 Miss., 223, told the jury the witness “was not entitled to credit” as to any other matter as to which he had testified, if he had testified falsely as to any material matter, and was properly refused, because it commanded the jury to wholly disbelieve the witness in such case. It is not objectionable on the ground that it was aimed at the witness, Lester. This case is not like' that of Railway Co. v. Tate, 70 Miss., 348 (12 So., 333), in that respect. The testimony of the only witness for the defendant there was not only not contradicted, but was neither improbable nor unreasonable. Here the testimony of this witness is self-contradictory. He himself admits that he has deliberately perjured himself in his statement as given in the examination in chief and cross-examination on this very same trial. In such a case it is no objection that the instruction is aimed at testimony confessedly perjured. See Norwood & Butterfield Co. v. Andrews, 71 Miss., 641 (16 So., 262). It may be said that the instruction omits the word “intentionally,” and that under Railroad Co. v. Hedrick, 62 Miss., 29, it was properly refused for that reason; but ■ that case and similar cases refer alone to those instances in which it is possible that the false testimony may have been simply mistaken testimony, in which the witness may have stated a fact falsely (stated it as it was not), and yet done so unintentionally (testified falsely, in other words, by pure mistake). But it would be preposterous to claim that this witness testified falsely, in the many instances in which he admits that he testified falsely, simply by mistake. He leaves no room for the application of the principles announced in the cases cited. He confessed, callously and shamelessly, that he had not only perjured himself, but had done so in such a way that it is iinpossible not to see, clearly and plainly, that he had intentionally and deliberately perjured himself as to most material facts. Where, therefore, the facts show that the witness had intentionally perjured himself about material matters, it is wholly 'immaterial that the word “intentional” was omitted from the charge. The only object of putting the word “intentionally” in such a charge is to warn the jury that they should not wholly reject the testimony of a witness because he had testified falsely merely, if •he had so falsely testified unintentionally (that is to say, by mistake) ; but where the jury see (they themselves), with overwhelming clearness, that the witness had intentionally per jured himself, the insertion of the word “intentionally” in the charge is wholly immaterial.

The court also refused in this case, in which the prisoner was sentenced to death, to give the following charge: “The court instructs the jury, for the defendant, that witnesses may be impeached by showing that they have made statements at other times and places, and have testified under oath at other times and places, materially different from their testimony on the witness stand. And the jury may disregard the testimony of any witness or witnesses who are shown, to their satisfaction, to have willfully made statements or given sworn testimony at other times and places materially in conflict with their testimony on the witness stand in this case. But this testimony to impeach the witness is for the purpose of showing such witness to be unworthy of credit, and not directly to establish the guilt or innocence of the defendant.” It is impossible to conceive for what reason this instruction was refused. It is accurately drawn, peculiarly appropriate under the facts in this case, and eminently proper to have been given, and its refusal was a grievous error against the appellant. .

Looking at these three errors, each one of them most vital and material to a fair and impartial trial, remembering that the conviction of the defendant rested exclusively upon the testimony of the witness, Lester, so far as the facts showing his connection with the crime are concerned, is it not manifestly the plain duty of this court to reverse? We are bound to administer the law justly and impartially. If the jury, believing the witness, as they» had a right to do, had found him guilty, the court having committed no reversible error in its rulings on the evidence and instructions, we would have disregarded all minor errors and affirmed the conviction; but it is impossible for any court of last resort to affirm a conviction resting, like this, on the solitary testimony of a callous and shameless perjurer — a confessed perjurer — where the court has committed three errors, each vital, in the highest degree, to a fair and impartial trial. We repeat what we stated in the ease of Ellerbe v. State, 75 Miss., 531 (22 So., 952; 41 L. R. A., 569) : “If this error were a merely technical one, not vital in its nature, we would not for that alone reverse the judgment. . . . So far as the lawful power of this court can be exerted in affirming convictions for violations of the law of the land, it shall be exerted; and mere technical errors, without intrinsic merit, when we can, after careful and thorough examination of the whole case, confidently say that the right result has been reached, that substantial justice has been done, and that on a new trial no other result could reasonably be arrived at, will not avail here for reversal -in civil or criminal cases; but where the defendant has been, as here, denied a right secured to him by the constitution and the laws of the land, we are compelled to reverse the case. In such cases the interests of society, the stability of the laws, the due administration of justice, demand a reversal. Disregard of fundamental right in the case of the guiltiest defendant, his conviction in violation of settled constitutional and legal safeguards intended for the protection of all, are not things which affect the particular defendant in a given case alone, but, in their disastrous and far-reaching consequences, involve, in future trials, the innocent and guilty alike, subvert justice, and disorganize society. Guilt should be punished certainly and condignly, most assuredly; but guilt must be manifested in accordance with the law of the land, else some day the innocent, who are sometimes called to answer at the bar of their country, may come to find themselves involved in a common ruin, and deprived of the legal trial necessary to the vindication of their innocence.” Where the crime committed is one as atrocious and infamous as this, there is all the more reason, on the one hand, why the court, sitting serene amid the tumult of feeling', should hold the scales of justice with even balance; see to it that no just right of the accused is swept away in the tempest of passion aroused by the enormity of the 'crime; and, on the other, why the court should be liberal in its rulings to the defendant, since the result is, in such case, almost certainly conviction, if there be any testimony warranting it, and hence the common sense and sound judgment of the jury may well be trusted to reach the right result without the aid of vicious rulings on the evidence and the instructions. We say this much in deference to the earnest appeal made to us to affirm this conviction without regard to errors. This we might do, and would do, if we could conscientiously declare that these errors were not vital. But who shall say that the admission of evidence as to the threat, and the refusal of charges going to the very essence of the defense, were not most potential in producing the result ? • We administer the law of the land with equal hand between the state and the prisoner at •the bar. We know nothing of his guilt or innocence, except as manifested to us by the record. Neither the tumult of popular feeling against a defendant, nor sympathy of those dear -to him in his behalf, can communicate itself to this tribunal. We would be unworthy of the high places we hold, if, convinced that vital error had been committed — error showing that a fair and impartial trial has not been had — we did not unhesitatingly reverse the judgment, in order that the defendant, however guilty, when finally sentenced to death, after having had a trial fair and impartial, may not be able, dying, to charge the administration of justice with an execution unsanctioned by the law of the land.

Reversed and remanded.