Spight v. State

83 So. 84, 120 Miss. 752

Opinion

HoldeN, J.,

delivered the opinion of the court.

The appellant, Allen Spight, was tried and convicted of the murder of Ira Short, and sentenced to death, from which judgment he appeals.

The evidence shows the crime was most diabolical and was participated in by another man, George Garrett, It appears that the appellant and Garrett had a controversy with the deceased Short regarding damages on account of Short’s cow eating corn belonging to appellant and Garrett. The two had called upon the deceased at his home, and while there Garrett abused the deceased. That afternoon Garrett was at the home of appellant, when the deceased came there and left with the two men, appellant and Garrett, the latter armed with a shotgun, and the other with an ax upon his shoulder, and deceased unarmed.

According to the state’s testimony, the appellant had an ax upon his shoulder and walked along with the deceased and Garrett following behind armed with the shotgun; that after they had proceeded some distance appellant struck the deceased with the ax handle and cried ont to Garrett to shoot him, whereupon Garrett raised his shotgun and shot the deceased in the face, causing him to fall, and after he had fallen the appellant, Spight, struck and killed him with the ax. Appellant and Garrett then dragged the body a considerable distance to a small stream of water, where it was found eight days thereafter in a decomposed condition, with the head and face crushed and lacerated nearly beyond' recognition. The two slayers were .restless and sleepless the night following the day of the killing and visited the body again that night. On the following day the appellant .and Garrett went to, a justice of the peace and swore out a warrant for the arrest of the deceased, Ira Short, for unlawful threats. It was not generally known that Short had been killed until the body was discovered. Suspicion pointed to appellant and Garrett, as it was known that they had a controversy with Short and were seen with him last on the day of his disappearance. Appellant and Garrett were arrested and placed in jail charged with the killing of Short. After the two men had remained in jail a short while the appellant made a statement to the sheriff in which he said that the killing of Short was done by Garrett, and that he was present and helped to 'hide the body where if was found, but that he, the appellant, did not participate in the killing, and was forced through fear of Garrett to assist in hiding the body. When Garrett heard that appellant had told, the sheriff about the killing, he then made a confession to the sheriff in which he stated that he shot the deceased in the face with a shotgun, and that appellant then struck the deceased in the head with an ax. Garrett said that he shot the deceased after appellant had first struck deceased with the ax handle and commanded him to shoot him. On the. trial of the case the two parties to this crime testified substantially the same as they had stated to the sheriff as to how the killing had occurred; the appellant testifying that Garrett and the deceased walked off ahead together, and Garrett struck the deceased over the head with the shotgun and then shot him in the face; that appellant had no ax and took no part in the killing, b*ut, on the other hand, implored Garrett not to kill Short. The testimony, of Garrett for the state was corroborated in a measure by other testimony in the case, and the testimony of the appellant was corrobrated by that of his wife and other circumstances. The appellant is a young coloréd man, claiming'to he a minister of the gospel, and is shown' to have had a good reputation in the community in which he lives.

The appellant was tried and convicted before the 'trial and conviction of Garrett. At the appellant’s trial-the state offered to introduce Garrett as a witness. An attorney representing Garrett objected to Garrett testifying in the case on the ground that it would incriminate Garrett. Thereupon the court informed Garrett of his legal privilege to refuse to testify if he so desired, and his right to exercise such privilege. At first it seems that Garrett was inclined "to refuse to testify against his partner in the crime, but finally decided to do so with full, knowledge of his right to decline.

The appellant, through his able counsel here, earnestly urges that the court below erred, and assigns three grounds for reversal: First, that the court erred in allowing Garrett to testify in the case when it appeared that-he was reluctant to do so and at first declined to do so until the court had led him into testifying by numerous questions; second, that the instructions granted the state submitting the question of conspiracy to the jury is wrong, because there is no. evidence in the case upon which to base conspiracy; third, that the evidence in the case is insufficient to convict the appellant because the conviction rests solely upon the testimony of Garrett, whose testimony is manifestly false.-

We think the first contention of .appellant is untenable because we find, after a careful reading of the record,, that the circuit judge fully and fairly notified Garrett of his right to refuse to testify in the case on the ground that it would incriminate him. It is true that Garrett hesitated and appeared to he reluctant at first to give his evidence in the ease for • some reason, Tjut he finally stated that he did not object to testifying, and that he was willing to testify, fully understanding that it was his privilege to refuse if he desired to do so. This being true, we see’ no error of the lower court in allowing Garrett to testify in the case. However, we hold that at all' events whether or not Garrett testified in the case willingly is a matter about which the appellant has no right to complain. The only person who could be heard to complain under such circumstances would be Garrett. But the inquiry as to whether Garrett has a right to complain does not arise here in the trial of appellant. We do not understand that the privilege- of refusing to testify in such cases'can be exercised by the party on trial for the witness. The right to refuse to testify is personal, and is given solely to protect the witness from incriminating himself. But that is the extent -of the privilege guaranteed by the Constitution.

- The second contention of appellant that the conspiracy instruction was error is not maintainable, for the reason that the proof is abundant in the record from which the jury, were justified in finding that there was an expressed or implied understanding and common design between the appellant and Garrett to kill the deceased. The state, in establishing conspiracy, is never required to prove in express terms an agreement between the parties to do the unlawful act, but- it is sufficient when the evidence reveals, from all the facts and circumstances, together with the acts of the parties, a common design or understood purpose between the par-’ ties to commit the crime. We deem it unnecessary to narrate the different facts and circumstances, and acts of the appellant and Garrett, as testified to in this case, showing their joint participation and implied understanding which finally led up to the killing and hiding of the body and the concealing of the crime for many days thereafter, in order to make it clear that as a m'atter of law the instruction on conspiracy in this case was properly granted, because we think the joint.participation in the killing as shown by the whole evidence was-sufficient to sustain it, and the jury had a right to find under the proof that the conspiracy did exist and resulted in the murder.

As to. the third point urged by the appellant;- in which it is claimed that the testimony offered by the state is manifestly false, we are unable to agree with counsel. This court does not pass upon the truth or falsity of testimony in any case where the testimony offered is such that a jury is reasonably warranted in believing it and acting upon it. We will not to any extent usurp-the province of'the jury, who are the triers of fact, and who, with all the witnesses testifying in their presence, must necessarily be the best judges, and, under the law, are the final judges, of the truth or falsity of the testimony and the weight to be given thereto.

We have carefully notéd the facts as testified to by Garrett, and it may be that some of the statements of Garrett are unreasonable and false. But it is not within our province to pass upon the facts; nor can we say that the verdict-of the jury is manifestly wrong, where, as in this ease, the testimony offered by the state is clear and positive, and may reasonably be believed by the jury.

We, note that the appellant is a young man, a minister of the gospel, and bears a splendid reputation as a peaceful citizen in the community in which he lives. These facts, especially with reference to character, are valuable to the accused, but they were submitted to and considered by the jury along with the other evidence in the case, and since the jury has said by its verdict, from all the evidence in the case, that the appellant committed the crime as charged, we cannot see our way clear to disturbing the finding of fact herein.

The judgment of the lower court is affirmed, and Friday the 2d day of January, 1920, is set for the day of the execution of the judgment.

Affirmed.