KITCHENS v. STATE

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Docket Number

No. 37338.

Attorney(S)

Edwards Edwards, for appellant. The court erred in permitting the State to offer evidence showing, or tending to show, that deceased was not a drunkard, or not a drinking man, over the protest and objection of the defendant as shown by the record. It is evident as shown by this record that the district attorney on cross-examination brought out irrelevant matter, and when the defendant rested his case, over the objection of the defendant, introduced witnesses, R.L. Thompson, Olen Lott, Lee Grubbs, Hadden, Charley Thomas, M.J. Lee and Dr. R.E. Giles to show the good reputation of the deceased, Holder, for sobriety, and the fact that he was not a drinking man. This evidence was over the objection of the defendant. This character of evidence was not in rebuttal to any material fact in issue. The defendant testified that he did not know whether the deceased, Holder, was drinking the day of the alleged crime. This matter was brought out by the State on cross-examination of irrelevant and immaterial matter which was not an issue in the case, and over the objection of the defendant, and injected this issue in the case for the purpose of showing the good reputation of the deceased by prominent white men of the Town of Mendenhall and which evidence bolstered up the evidence of the negroes who testified for the State, when the reputation of the deceased had not been put in issue by the defendant. In support of our argument that this was reversible error for the State to inject into this case the good reputation of the deceased and show it by prominent white men, one a leading physician of prominence and one a merchant, and one the head of the water works department of the Town of Mendenhall, we cite Richardson v. State, 123 Miss. 232, 85 So. 186: "Evidence of deceased's good reputation inadmissible, where not attacked." The authorities on the proposition are all one way. Chase v. State, 46 Miss. 683; Wharton on Homicide (3d Ed.) pp. 438, 439; Woods v. State, 90 Miss. 245, 43 So. 433; case note 3 L.R.A. (N.S.). Joe T. Patterson, Assistant Attorney General, for appellee. The appellant argues in his brief that the trial court was in error in permitting the State to offer evidence showing, or tending to show, that the deceased was not a drunkard, or a drinking man. The evidence in this case shows that the appellant, his wife, the wife of the deceased and Ida Mae Lewis had engaged in a drinking party beginning about nine-thirty in the morning and continuing up to a few minutes before the killing occurred. The evidence clearly shows that this foursome was in the home of deceased, and it is reasonable to assume all under the influence of liquor to some extent, right up to the very time the killing occurred. We find at the very beginning of the trial a State witness being asked: "Q. What about the man who got killed there — wasn't he drunk? A. No, sir, he doesn't drink whiskey. Q. How do you know that? A. I never saw him drink any. He doesn't drink." And again on page 156 the appellant on cross-examination: "Q. Do you tell the jury that Howard Holder was a drinking man? A. Yes, sir, he would drink." The questioning of the witness Ida Mae Lewis by appellant's attorney as above quoted, and the statement of the appellant as above quoted, was sufficient to infer that the deceased might have been in the same condition as all the other actors in this tragedy, and certainly the State had a right to show to the jury whether or not the deceased was likely to have been in the same condition as his wife and her associates were in on that unfortunate Christmas Day for the deceased. The question of the deceased's reputation for sobriety was put in issue by the appellant and the State had a right to show, if it could, what the deceased's reputation in the community as to sobriety was.

Judges

Alexander, J.

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KITCHENS v. STATE.

1. Criminal procedure — homicide — sobriety of deceased, improper evidence respecting.

When in a prosecution for murder the defendant is a member of an humble race, and his defense self-defense, and when there had been no showing whatever that the deceased was drunk, it was reversible error to permit the State in rebuttal to introduce influential citizens who testified as of their own knowledge rather than by general reputation that deceased was a man of sobriety especially where the proof of defendant's guilt was not overwhelmingly established.

Headnote as approved by Alexander, J.

Alexander, J.

Appellant suffered a judgment of murder with a life sentence. The fact of the homicide is conceded although there was a factual issue of self-defense.

In view of our disposition of the appeal, it will not be necessary to examine the exercise of the trial court's discretion in refusing to allow the defendant to perfect his predicate for impeachment of one of the State's leading eyewitnesses, after the defendant had begun to put on his case.

A more serious question is presented by the allowance of rebuttal witnesses for the State to show the character of the deceased for sobriety. (Hn 1) There was no showing that the deceased was drunk at the time of the fatal altercation. The first mention of this circumstance occurred upon cross-examination of deceased's wife. The following examination was had: Q: "What about the man who got killed there — wasn't he drunk?" A. "No, sir, he doesn't drink whiskey." Q. "How do you know that?" A. "I never saw him drink any. He doesn't drink." Later, upon cross-examination of the defendant, he was asked "Do you tell the jury that Howard Holder (the deceased) was a drinking man?", to which he replied "Yes, sir, he would drink." In this case, whether deceased was drunk at the time of the fatal shooting could be relevant, but not whether he took an occasional drink.

Yet, upon rebuttal by the State, five leading citizens of the county were produced who testified that deceased was a good man as far as it respects sobriety. This testimony, which went in over objection, was with one exception adduced by direct testimony of the purported knowledge of the witnesses as to this trait of character, rather than by proof of general reputation.

Such testimony by influential citizens in the prosecution of one of another and humble race was more than irrelevant; it was too clearly calculated to be prejudicial, especially in a case where self-defense was sought to be established, and the guilt of the defendant was not overwhelmingly proven. Richardson v. State, 123 Miss. 232, 85 So. 186. Compare Simmons v. State, Miss., 40 So.2d 289.

We have concluded that the ends of justice require a retrial.

Reversed and remanded.

KITCHENS v. STATE.

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