KING v. STATE

J.H. Daws, of DeKalb, for appellant.

The court will, I think, take judicial knowledge of the fact that all negro fights and difficulties are always attended by cursing, swearing, hollowing, and screaming. We argue this because of the fact that we charge that our witnesses were intimidated and prevented from testifying, and that we were embarrassed when the state closed its case, and we found that our only eye witnesses, namely, Alberta King and Essie D. King, stated to us and the defendant, "That they had been told if they testified like it happened they would be put in jail for a part in the killing." We had no witnesses here, and at the time could not learn the names of the witnesses, and under our assignment of errors as to newly discovered evidence we give the names of the witnesses who would testify that even the state witnesses had told them, and also the eye witnesses, Essie D. King and Alberta King, had made statements which in all respects corroborated the statement of the defendant, and we too appreciate the fact that most of this evidence might be said to be evidence to impeach, but nevertheless this court looks to fairness in a trial where a party is charged with murder, and I do not hesitate to say that this record from beginning to end clearly shows that the defendant has not had a fair trial for the reasons: (1) Both state witnesses were intimidated and defense witnesses were intimidated; (2) The alleged dying declaration was testified to by a man whose name was known to the court as Frank Simms and drew his pay under the name of R.E. Simms, and he refused to give the names of the parties present when dying declaration was made, and demonstrated his bias and prejudice by saying, "I was mad when he (deceased) went off in my car and come back killed"; "He was indebted to me"; "I am interested in the case", brought the witnesses to all the courts, attended the justice court.

Campbell v. State, 123 Miss. 713.

We find that the courts sanction and approve two rules of law concerning verdicts of juries: (1) Verdicts are reviewable where the verdict is without substantial support of competent evidence; (2) Where the verdict is contrary to overwhelming weight thereof. We submit that the verdict here is without support of competent and believable evidence, and refer here to the testimony of each and all of the eye witnesses testifying for the state, and we submit that no human being with practical sense will for a moment argue that their statements are believable, and we quote from the case of Byrd v. State, 154 Miss. 743, from syllabus, "Verdict manifestly without substantial support of competent evidence or contrary to overwhelming weight thereof is reviewable."

Horn v. State, 60 So. 1011; Sykes v. State, 45 So. 838; 2 Thompson on Trials, page 1507.

We respectfully call the court's attention to the case of Hathorn v. State, 138 Miss. 11. That case and this case are on all fours. In that case the deceased was stabbed and in this case the deceased was stabbed, each dying as a result, and in the Hathorn case the court quotes much of the testimony which corresponds to the testimony in this case, and as to confessions the court said, "If this evidence was intended to be offered as a confession, it should have been produced when the state was making its case in chief." This the state did not do in opening its case, and it cannot be denied that this testimony is and was introduced and received as a confession of the defendant.

Akroyd v. State, 107 Miss. 51.

W.D. Conn, Jr., Assistant Attorney-General, for the State.

As to the testimony of the first witness, it clearly appears that this testimony would have been merely impeachment of some of the state witnesses. This is not the character of newly discovered evidence that would warrant a new trial.

Powers v. State, 151 So. 730; Carraway v. State, 167 Miss. 390, 148 So. 340; Maddox v. State, 163 So. 449.

The testimony of the second witness contains merely hearsay information that some of her witnesses had been intimidated. Neither of these witnesses appeared at the hearing on this motion, nor were there affidavits submitted to the court. There is nothing about this hearsay to indicate intimidation, and certainly this would not be sufficient to justify the trial court in granting a new trial.

As to the declaration itself, there is no conflict as to its competency.

Under all the authorities in this state this dying declaration was competent and admissible as evidence.

Dean v. State, 173 Miss. 254, 160 So. 584; Bell v. State, 72 Miss. 507, 17 So. 232.

After the appellant had testified and left the stand she was subsequently re-called for cross-examination. On this cross-examination she was asked if she had not, at a certain designated time and place, and in the presence of certain officers, stated that the reason she stabbed Alex Moore was because he was with the wrong woman, or, as stated by one witness, because he was with another woman. She stated that she did not make this statement, or, if she did, she did not remember it. Thereafter, in the absence of the jury, evidence was taken to show that this statement made by appellant was freely and voluntarily made. After the jury was brought back she was again asked if she made this statement and she again denied it, or at least failed to remember it if she did. In rebuttal the state proved by the sheriff and Mr. Legette that she did make this statement, which was, in substance, that she stabbed the deceased because he was with another woman.

This statement of appellant is not per se a confession, but is an admission against interest from which her guilt might be inferred. This court has held that while, generally speaking, it is not proper to use a confession in rebuttal, nevertheless, we say that what the state used here was not a confession, but an admission against interest.

Hathorn v. State, 138 Miss. 11; Mitchell v. State, 170 So. 534; Roney v. State, 167 Miss. 827, 150 So. 774; Clarke v. State, 180 So. 602.

Argued orally by J.H. Daws, for appellant, and by W.D. Conn, Jr., for the State.