Wilkerson v. State

98 So. 770, 134 Miss. 853, 1923 Miss. LEXIS 245

• Court: Mississippi Supreme Court
• Decided: December 31, 1923
• Docket: No. 23353
• Status: Published

Opinion

Ethridge, J.,

delivered the opinion of the court.

The appellant was indicted for the murder of Sidney Jones, and on trial was found guilty of manslaughter and was sentenced to serve ten years in the state penitentiary, and from said judgment appeals.

The deceased and the appellant were near neighbors and the public highway ran by the preraises of each. Wilkerson, at the time of the killing, was engaged in plowing a ditch along the public highway, which ditch turned across the highway into the premises owned by Jones. The state’s evidence consisted of the dying declaration of the deceased Jones as to the beginning of the difficulty, together with certain physical facts, and the testimony of the wife and son of the deceased, whose attention was attracted thereto by the firing of the first shot. The wife of the deceased was first introduced and testified first as to the dying declaration. According to this declaration the statement was:

"The first thing he said, ‘I ani going to die;’ that was the first word. He says, ‘I am going to die; Henry Wilkerson has shot me all to pieces and he has shot me for nothing.’ Q. State whether or not from that time on until he died, if you were with him almost constantly? A. Yes, sir; I was out and in the house all the time. Q. State whether or not you heard him make statements from time to time about whether he would live or die? A. He said he was going to die from the time I got to him until the breath left him. Q. Did he in your presence say anything to you or any of your children about takixig care of things? A. Yes, sir. Q. Tell the court what he said about that ? A.. He told Floyd in my presence — said, ‘Floyd, I am going to die; Henry Wilkersoxi has shot me all to pieces; I want you boys to take hold of everything and do what is right.’ Q. State whether or not you heard him say to people there ixi the house — state whether or not you heard him ask different parties to pray for him? A. I heard him ask Pa, Mr. Sanders, and everybody while I was in the room. Q. When he asked these parties to pray for him, did he say anythixig about living or dying? A. He told them he was going to die, and when he did he wanted to go to heaven. Q. As the wife of this gentleman who is now dead, did he ever in yonr presence express any hope of getting well? A. No, sir; he never did.

“By the District Attorney: That is all we care to offer in the absence of the jury.

“By the Attorney for the Defendant: Dying declarations are prelimináry matters to be heard and passed on by the court in the absence of the jury; it is unfair to the defendant to permit witnesses to detail purported declarations to the jury, and then exclude that part of them that is incompetent; when the jury hears incompetent declarations it is calculated to influence their minds as if they were excluded; if the state.declines to go into them, I think we should. (To which statement the state objected. The objection was sustained. Defendant excepted.)

“By Attorney for the Defendant: Now, if the court please, I want a running objection to all of these questions and answers with reference to purported statements of the declarant as to the details of the homicide, or anything else said by him.

“By the Court: Yery well, they will be overruled; let the record show an objection, and let it be overruled. (Exceptions by the defendant.) ”

It is insisted that the court erred in not hearing all of the witnesses and all of the evidence pertaining to the dying declaration in the absence of the jury preliminary to its admission in evidence before the jury. .

The rule is well established in this state that the judge, when dying declarations are offered, should hear all of the evidence offered bearing thereon in the absence of the jury to determine whether or.not the dying declarations are competent, and if there is a reasonable doubt of their competency, they should be excluded. Bell v. State, 72 Miss. 507, 17 So. 232; Lipscomb v. State, 75 Miss. 559, 23 So. 210, 230; Fannie v. State, 101 Miss. 378, 58 So. 2; McNeal v. State, 115 Miss. 678, 76 So. 625.

"We think the court at the request of the defendant should have heard all of the evidence in the absence of the jury bearing upon the competency of the dying declarations, but it is not reversible error in this case because, looking through the record of the completed trial with the objections made, no reversible error was committed. The objection above'set out to the dying declarations does not object to any particular part of the dying declarations, nor does the objector state any evidence that he expects to show that would make it incompetent. The objection seems to be based upon the idea that incompetent evidence might be offered before the jury, or that some evidence subsequently intro.duced might render, or tend to render, the dying déclarations incompetent. In Lipscomb v. State, supra, the court held that a general objection was not sufficient where a part of the dying declaration was admissible, but that objections must be specific, specifically made to the incompetent parts. It is argued by the appellant that repeated statements made by the deceased and the requesting of prayers and referring to the disposition of his business should not have gone to the jury.

We'think the dying declarations offered in evidence were admissible as shedding light on the state of mind of the declarant, and that it is proper to show in evidence the surroundings of the declarant, and expressions showing his state of mind, which tend to show he was or was not under the conviction that death was impending. The weight and credibility of dying declarations would of course depend wholly upon the declarant’s state of mind. Of course the judge passes upon the competency of such declarations in the first instance and the jury have nothing to do with the competency of the dying declarations; but the weight to be given to the dying declarations is for the jury’s determination and the expressions offered in evidence tending to prove that the declarant was conscious that he was in a dying condition were relevant facts for the consideration of the jury. The several witnesses introduced by the state on the dying declarations testified strongly that the declarant stated he was going to die and that the defendant shot him for nothing. The defendant introduced Dr. King who on cross-examination was interrogated as to whether the deceased had not stated that the defendant shot him for nothing and answered: “Yes, sir; he said that; he said ‘he considered he shot me for nothing.’ ” The.question propounded to the witness, “Did he say Wilkerson shot him for nothing?” was objected to and the objection overruled, and after the answer there was no motion to exclude the answer; neither was these anything specifically offered when the dying declarations were first offered before the judge to show that the defendant had made these statements or that the defendant had expected to prove by this witness these statements. The question propounded by this witness was competent, and if a motion to exclude had been specifically made after the answer it would perhaps have been sustained.

Taking the full record on the dying declarations and looking at the record of the completed trial, we are unable to say that any error was committed in the admission of the dying declarations of the deceased. It may be true that the facts detailed were handled by the district attorney with telling effect; but one of the things a person must reckon with when he takes human life is that he may be prosecuted therefore and the circumstances as detailed in the dying declarations may be used against him with telling effect by a prosecuting attorney, and the court cannot reverse a case where the evidence is properly admitted even though such evidence might tend to arouse the jury against the defendant. There is nothing in the record to show if the jury were improperly influenced by anything that was said or that the trial was in any way unlawfully conducted as to the admission of the dying declarations and the arguments thereon.

.It is next urged that the court erred in not sustaining the objections to the testimony of Bob Weems as to appearances at the scene of the homicide. The testimony complained of is as follows:

“This is the public road (illustrating), and there is a wire fence right along by the public road, and there is a rail fence here (illustrating), and there is a garden on the other side over here ten or fifteen steps (illustrating), and right at this rail fence (illustrating), the rails on top of the fence were knocked back, looked like where he struggled with Mr. Wilkerson. . . .”

Defendant objected do this testimony and moved the court to exclude it and his objection was overruled. The objection made in the record is as follows :• “Now, if the court please, I object and move to exclude that statement from the consideration of the jury.” The objection and the motion to exclude are addressed to the whole testimony and not to any particular expression. The words set forth in the brief as being erroneous are “looked like where he struggled with Mr. Wilkerson.” The motion did not separate this from the rest of the testimony. The objection ought to have been specific and singled out the particular part which was considered objectionable. A general objection in such case was insufficient where part of the answer was incompetent and the bullí of the answer was clearly competent. The words “looked like where he struggled with Mr. Wilkerson” should have been excluded, but we do not think it reversible error to overrule the objection as made. The witness continued his answer as follows: “and right at this rail fence (illustrating) four steps from this road (illustrating) was blood all over the leaves, and I tracked the blood all around the corner down a path and into a public road, and right along here (illustrating) there was a little plowing down by this garden, and across the public road there was some mule tracks, looked like where there was an excited mule. . . .” Defendant objects; overruled; defendant excepts.

It will be noted the objection is a general objection and tbe witness was describing the scene of the homicide to the jury, and the jury viewed the scene. If the objection had been specific to that part of the statement, “looked like where there was an excited mule,” it would probably have been sustained, and the witness would have been required to describe what he saw. It is true that the question as to whether the mule was hitched to a tree at the time of the shooting was a very important fact, and a statement of the witness as to the appearance of the ground tended to sustain the theory of the prosecuting witness who testified that the mule was hitched while the shooting was taking place. However, as stated above, where the objection is general and part of the statement objected to is competent and the court overrules the objection, the court will not reverse, but it de-. volves upon the party objecting to point out specifically the part that is objected to. In describing appearances and conditions of places like the one involved here, it is difficut to get the average witness to refrain from stating conclusions and blending his conclusions with his details of the facts, and if the conclusions arc objectionable they should be specifically objected to and a motion to exclude should be directed specifically at the incompetent part of the witness’ statement.

A number of objections were made in the progress of the trial to the statements, and a number of propositions were propounded bearing on the bad character of the deceased for peace and violence, and the good character of the defendant. The court, we think, correctly adhered to the rule, and limited the examination to the general reputation of the parties for the trait of character involved, and refused to permit the details of the specific instances to be gone into. The witnesses as to the character of the defendant for peace and violence qualified and testified that it was good. • Questions like the following were asked and excluded: “You never heard of any trouble he had with anybody ? ’ ’ This question followed a statement that the man was universally regarded as a peaceable man, and of course it was not reversible error. Another question following the 'general statement that the defendant was a man of good reputation for peace in the community, “Did you ever hear anything to the contrary?” was objected to, which objection was sustained.

The test, of course, is the general reputation and not whether specific instances might or might not have been known. Of course where a man’s character has never been called in question or discussed, that fact itself is evidence of good character, but where a witness testified that he knows the reputation of a person for such trait of character and that such reputation is good, that is sufficient. Likewise the examination with reference to the character of the deceased was proven by his general reputation in the community in which he lived. Specific instances of difficulties which the deceased had with other people were sought to be elicited. The court rightfully confined the examination to the general character of the trait involved in the community in which the parties lived, but permitted the witnesses on cross-examination to be tested by specific instances without permitting the details to be gone into. We think there was no error in the ruling of the trial court in admitting or rejecting evidence along these lines.

The state procured the following instruction which was assigned for error :

“The court instructs the jury for the state that the jury is the sole and only judge of the weight and worth and credibility of the dying declarations in this case and every other part and parcel of the evidence in this case, and it is the duty of the jury to give to each and every part of the evidence such weight as the jury itself thinks that it is entitled to, and the court does not intimate, in any instruction in this case, what worth it thinks you should give to the testimony, or any part of it, for this is the sole province of the jury, and upon your shoulders, and no one else’s shoulders, is the duty of passing on the question of what weight, if any, shall he given to the evidence by the jury.”

It is objected to this instruction that it counteracts and weakens the effect of the cautionary instruction of the defendant on the intrinsic weakness of dying declarations. We do not think that the giving of this instruction is error. It is not rightfully subject to the criticism made because there is a distinction and difference between receiving and acting upon .evidence with care and caution, and in telling the jury that they are the sole and only judges of the weight, worth, and credibility of dying declarations, and it was permissible for the court to tell the jury that the court did not undertake to express his individual opinion upon the weight and worth of such testimony.

The defendant’s instruction which is alleged to have been weakened or nullified reads as follows:

“The court charges the jury for the defendant that the statements of the witnesses purporting to be repetitions of the dying declarations of Jones are liable to imperfections and mistakes, through a lack of clear and exact expression of the meaning of Jones, and also through a misunderstanding by the witnesses of the statement actually made by Jones, or by their intentionally ‘altering or failing to remember some of the expressions used by Jones, whereby an effect is given to the dying declarations at variance with what Jones actually did say; and you are therefore instructed that while such repetitions of the dying declarations of Jones are admissible in evidence, yet they should be received and considered by the jury with great caution and subject to close scrutiny, and given such consideration as they are entitled to, in view of all the evidence in the case.”

A careful reading of the two instructions, we think, will show that there was no error in giving them. We are therefore of the opinion that there is no reversible error in the record and the judgment should be affirmed.

Affirmed.