Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Docket Number
Judges
  • HOLMES, J.
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Docket Number
Judges
  • HOLMES, J.
See more information ...
Smart Summary

TILLMAN v. STATE — Supreme Court of Mississippi (Nov. 7, 1955)

Factual and Procedural Background

The appellant was convicted in the Circuit Court of Lauderdale County of assault and battery with a deadly weapon (a shotgun), for shooting and wounding Helen Irby with intent to kill and murder her. He was sentenced to seven years in the State penitentiary and appealed.

The State's proof showed that on the night of November 20 or 21, 1954, a fight occurred at the appellant's place of business (a cafe/dance hall). The appellant was not a participant. After ordering the participants to leave, Helen Irby and Lucy Tillman returned about an hour and a half or two hours later. Helen stood at the counter about ten minutes, unarmed; the appellant, behind the counter, told her three times to leave. The appellant then retrieved a shotgun, loaded it and fired at Helen from about ten feet away, across the counter, striking her in the stomach. The appellant left the scene telling his wife to tell the officers he was at home; Helen was taken to the hospital and recovered after about six weeks.

The appellant pleaded self-defense. The jury rejected that defense and convicted him. On appeal he raised multiple assignments of error challenging evidentiary rulings, the overruling of his motion for new trial and limitations on argument, among other matters.

Legal Issues Presented

  1. Whether the trial court erred in excluding evidence of the prosecuting witness Helen Irby's general reputation for peace and violence.
  2. Whether the trial court erred in excluding evidence of prior fights between the prosecuting witness and others at the appellant's place of business.
  3. Whether the trial court erred in excluding testimony that the appellant sought to arrange medical aid for the prosecuting witness after the shooting (and whether such evidence was admissible or self-serving).
  4. Whether the trial court abused its discretion in limiting each side to forty minutes for argument (denying the appellant one hour).
  5. Whether the jury was exposed to outside influence during deliberations such that a new trial was required (motion based on a conference in the judge's office adjoining the jury room while jury deliberated).
  6. Whether the evidence was legally sufficient to sustain a conviction for assault with intent to kill (including whether the use of a deadly weapon gave rise to a prima facie inference of intent to kill).

Arguments of the Parties

Appellant's Arguments

  • The trial court erred in excluding testimony as to Helen Irby's bad reputation for peace and violence in the community (citing numerous authorities).
  • The court erred in excluding evidence of recent acts of violence by the prosecuting witness in or near the appellant's place of business.
  • The court erred in overruling the motion for a new trial on multiple grounds set out therein.
  • The court denied appellant the opportunity to produce evidence in support of the tenth ground of his motion for a new trial concerning alleged prejudice during jury deliberations (conference in judge's office) and thereby deprived him of a fair trial.
  • The court abused its discretion in refusing appellant an hour for argument and limiting each side to forty minutes (including reading instructions), denying adequate time for counsel to be heard as guaranteed by the state constitution.

Appellee's (State's) Arguments

  • The trial judge properly excluded evidence of the prosecuting witness's reputation for peace or violence under the record; Chase v. State and Spivey v. State were cited in support.
  • Although objections to prior fights in the appellant's place were sustained, the record shows the appellant actually made proof that Helen had been in the place about four times and had engaged in only one fight there (the fight an hour before the shooting).
  • Evidence that appellant sought medical aid after the shooting was immaterial because the State did not claim the appellant fled; moreover such evidence was incompetent and self-serving.
  • Cross-examination questions about the day of the week of the shooting and about the prosecuting witness's "attitude" were immaterial or properly restricted; the jury could draw appropriate inferences from the witness's conduct.
  • The combined instructions given to the jury were legally adequate; the case presented a clear factual issue for jury determination.
  • The appellant's defense invoked Code section 2218(f) (self-defense standard); the proof supported the jury's conclusion that appellant did not reasonably believe his life was in danger.
  • Use of a deadly weapon is prima facie evidence of intent to kill and intent is ordinarily a jury question (citing Jeff and Howard); means likely to kill is for the jury (citing Blain and Bolin).
  • The allegation that the jury may have overheard a conference in the judge's office showed only a mere possibility of exposure to outside influence and did not warrant a presumption of prejudice; well-settled authorities hold mere possibility is insufficient to vitiate a verdict.
  • The trial court's limitation of argument time was within its discretion and not prejudicial in view of the number of witnesses and simplicity of issues (citing Wingo and Senior v. Brogan).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Blalack v. State, 79 Miss. 517, 31 So. 105 Cited by appellant in support of contention that testimony of bad reputation should be admitted. Included among authorities listed by appellant; court did not rely on it to reverse; the court applied governing Mississippi law (Chase, Spivey) and upheld exclusion under circumstances here.
Dillon v. State, 196 Miss. 625, 18 So.2d 457 Cited by appellant in support of admitting reputation evidence. Cited in appellant's list of authorities; court's analysis rested on Chase and Spivey principles instead of changing result.
Garner v. State, 28 Fla. 113, 9 So. 835, 29 Am. St. 232 Cited by appellant in support of admitting reputation evidence. Listed in appellant's authorities; court found the reputation evidence properly excluded on facts presented.
King v. State, 65 Miss. 586, 5 So. 97, 7 Am. St. 681 Cited by appellant in support of admitting reputation evidence. Listed by appellant; court affirmed exclusion under the record.
Lee v. State, 160 Miss. 618, 134 So. 185, 64 A.L.R. 1030 Cited by appellant in support of admitting reputation evidence and in other assignments; also cited by appellant for new-trial-related matters. Cited frequently by parties; court applied established Mississippi rules about admissibility and found exclusion proper here.
Moseley v. State, 89 Miss. 802, 41 So. 384 Cited by appellant in support of admitting reputation evidence. Appears in appellant's authorities list; court nevertheless excluded reputation evidence on present facts.
Pritchett v. State, 22 Ala. 39, 58 Am. Dec. 250 Cited by appellant in support of admitting reputation evidence. Listed by appellant; court did not find reversible error in exclusion.
Scott v. State, 203 Miss. 295, 34 So.2d 718 Cited by appellant in support of admitting reputation evidence and in other points. Appears in appellant's citation lists; court neither reversed nor treated it as controlling here.
Smith v. State, 75 Miss. 542, 23 So. 260 Cited by appellant in support of admitting reputation evidence. Listed by appellant; not applied as basis for reversal.
Spivey v. State, 58 Miss. 858 Authority cited (by both sides) on admissibility of character evidence — that such evidence is generally admissible only in circumstantial cases or where overt hostile acts exist. Court relied on Chase and Spivey to hold exclusion of reputation evidence proper because this was not a circumstantial case and no overt hostile act by Helen toward appellant was shown.
Wesley v. State, 37 Miss. 327, 75 Am. Dec. 62 Cited by appellant in support of admitting reputation evidence. Listed in appellant's authorities; court affirmed exclusion of such evidence on the record.
4 Am. Jur., Secs. 103, 113 pp. 181, 184-85 Secondary authority cited by appellant concerning reputation and related evidentiary rules. Appellant relied upon such authorities; court applied Mississippi precedents (Chase, Spivey) in reaching its conclusion.
Kuykendall v. State, 200 Miss. 192, 26 So.2d 471 Cited by appellant regarding admissibility of evidence of recent acts of violence by the prosecuting witness. Listed in appellant's brief; the court treated such evidence as immaterial here because appellant was not shown to have been involved in the prior fights.
McDowell v. State, 189 Miss. 617, 198 So. 564 Cited by appellant regarding prior difficulties evidence. Appears in appellant's citations; court found proof of prior fights irrelevant where appellant was not involved.
Bang v. State, 60 Miss. 571 Cited by appellant in support of his motion for new trial grounds. Included in appellant's authority list; the court reviewed the motion and affirmed the trial court's denial of a new trial.
Brooks v. State, 209 Miss. 150, 46 So.2d 94 Cited by appellant in support of new trial and related procedural arguments. Listed among appellant's authorities; court considered procedural claims and found no reversible error.
Brown v. State, 87 Miss. 800, 40 So. 1009 Cited by appellant in support of new-trial arguments. Appears in appellant's compilation of authorities; court did not find grounds for reversal.
Burrage v. State, 101 Miss. 598, 58 So. 217 Cited by appellant in support of new-trial arguments. Listed by appellant; no reversible error found by court.
Collins v. State, 99 Miss. 47, 54 So. 665 Cited by appellant in support of new-trial arguments. Included in appellant's list; court affirmed judgment.
Daniels v. State, 196 Miss. 328, 17 So.2d 793 Cited by appellant in support of new-trial arguments. Listed among appellant's authorities; court rejected appellant's motion for new trial.
Edgar v. State, 202 Miss. 505, 32 So.2d 441 Cited by appellant in support of new-trial arguments. Listed by appellant; court found no reversible error in trial court's action on new trial motion.
Godwin v. State, 73 Miss. 873, 19 So. 712 Cited by appellant in support of new-trial arguments. Appears in appellant's authorities list; court affirmed conviction.
Green v. State, 97 Miss. 834, 53 So. 415 Cited by appellant in support of new-trial arguments. Included in appellant's authority citations; not treated as basis for reversal.
Griffin v. State, 196 Miss. 528, 18 So.2d 437 Cited by appellant in support of new-trial arguments. Listed in appellant's citations; court found no reversible error.
Howard v. State, 212 Miss. 722, 55 So.2d 436 Cited (by appellant and appellee) for the proposition that use of a deadly weapon is prima facie evidence of intent to kill and that intent is ordinarily for the jury. The court relied on Howard (along with Jeff v. State) to support that the use of a shotgun warranted the jury's finding of intent; conviction sustained.
Ingram v. State, 62 Miss. 142 Cited by appellant in support of new-trial and related arguments. Included in appellant's authority list; court affirmed below.
Jones v. State, 66 Miss. 380, 6 So. 231, 14 Am. St. 570, and 97 Miss. 269, 52 So. 791 Cited by appellant in support of new-trial arguments. Listed among authorities; court found no reversible error.
Jeffries v. State, 74 Miss. 675, 21 So. 526 Cited by appellant in support of new-trial and evidentiary points. Appears in appellant's list; court rejected appellant's claims for a new trial.
Lewis v. State, 109 Miss. 586, 68 So. 785 Cited by appellant in support of new-trial arguments. Included in appellant's authorities; no relief granted on appeal.
McCoy v. State, 207 Miss. 272, 42 So.2d 195 Cited by appellant in support of new-trial arguments. Listed by appellant; court affirmed the conviction.
Martin v. State, 98 Miss. 676, 54 So. 148 Cited by appellant in support of new-trial arguments. Included in appellant's citation list; court found no reversible error.
Maury v. State, 69 Miss. 398, 10 So. 579 Cited by appellant in support of new-trial arguments. Listed in appellant's authorities; court affirmed conviction.
Outlaw v. State, 208 Miss. 13, 43 So.2d 66 Cited by appellant in support of new-trial arguments. Appears in appellant's list; court did not find reversible error.
Russell v. State, 53 Miss. 367 Cited by appellant in support of new-trial arguments. Included by appellant; court affirmed the judgment below.
Scarbrough v. State, 204 Miss. 487, 37 So.2d 748 Cited by appellant in support of new-trial arguments and procedure. Listed in appellant's authorities; court denied relief on new-trial contention.
Scott v. State, 56 Miss. 287 Cited by appellant in support of new-trial and character-evidence points (appears in multiple cites). Listed repeatedly by appellant; court applied its own analysis and affirmed.
Senior v. Brogan, 66 Miss. 178, 6 So. 649 Cited regarding the trial court's authority to limit argument and circumstances where such limitation was improper. Court referenced Senior to explain limits on argument; distinguished present facts and upheld the forty-minute limitation.
Wade v. State, 155 Miss. 648, 124 So. 803, 85 A.L.R. 1406 Cited by appellant in support of new-trial and related claims. Included in appellant's authorities; court did not find reversible error.
Weyen v. Weyen, 165 Miss. 257, 139 So. 856 Cited by appellant in support of his right to produce evidence for the tenth ground of the motion for new trial. Listed among authorities; court denied the requested proof and found no abuse of discretion.
Chase v. State, 46 Miss. 683 Cited by appellee as authority that reputation evidence is admissible only in circumstantial cases or where overt hostile acts are shown. Court relied on Chase in holding the reputation evidence was properly excluded because this was not a circumstantial case and no overt hostile act was shown.
Blain v. State, 196 Miss. 603, 17 So.2d 549 Cited for the proposition that whether means used were likely to kill is primarily for jury determination. Court observed that the jury decides whether means were likely to kill; used in upholding jury's role on intent.
Bolin v. State, 209 Miss. 866, 48 So.2d 581 Cited similarly on the jury's role in determining whether means used were likely to kill. Court cited Bolin to support that the jury decides the lethal quality of the means used.
Jeff v. State, 39 Miss. 593 Cited for the rule that unlawful use of a deadly weapon is prima facie evidence of intent to kill. Court invoked Jeff (with Howard) to support that the shotgun use permitted a prima facie inference of intent to kill, a question for the jury.
Sanders v. State, 150 Miss. 296, 116 So. 433 Cited for the proposition that the possibility a jury was exposed to outside influence is not sufficient to vitiate the verdict. Court relied on Sanders to hold that the mere possibility the jury might have overheard a conference did not require setting aside the verdict.
Turner v. State, 176 Miss. 862, 170 So. 642 Cited to the same effect as Sanders regarding exposure to outside influence. Court cited Turner alongside Sanders to support denial of new trial on the alleged jury-exposure facts.
Beale v. State, 213 Miss. 476, 54 So.2d 921 Cited for the proposition that reversal requires both error and prejudice to the appellant. Court applied the standard that an error must be prejudicial to warrant reversal and found no prejudicial error here.
Character v. State, 212 Miss. 30, 53 So.2d 41 Cited in connection with judicial discretion regarding jury deliberation time. Appellee cited this principle; court noted that jury-retention time is within trial judge's discretion absent clear abuse.
Ceary v. State, 204 Miss. 299, 37 So.2d 316 Cited by appellee for the test whether the accused intended to kill at the time the shot was fired. Referenced in appellee's argument; court treated intent as a jury question under governing authorities.
22 C.J.S., Criminal Law, p. 1271 Secondary authority quoted to the effect that evidence that accused offered to obtain medical aid after inflicting a mortal wound is incompetent as self-serving. Court relied on this principle in concluding testimony about arranging medical aid was self-serving and incompetent; held exclusion was proper.
Wingo v. State, 62 Miss. 311 Cited regarding the trial court's authority to place reasonable time limitations on argument despite the constitutional right to be heard. Court cited Wingo and Senior to uphold the forty-minute limitation as a reasonable exercise of discretion under the circumstances.

Court's Reasoning and Analysis

The Court framed and applied the following analytical steps (as stated in the opinion):

  • Statement of charges and sentence, followed by a concise recitation of the State's proof and defense testimony. The appellant admitted firing but asserted self-defense, sometimes saying he did not know why he shot and sometimes that he was scared.
  • On the reputation evidence: The court explained the established rule (citing Chase and Spivey) that character evidence of a prosecuting witness's disposition for violence is generally admissible only in circumstantial cases or where the deceased/prosecuting witness committed an overt hostile act or threatened the accused such that character bears on the reasonableness of the accused's belief of imminent attack. Because this was not a circumstantial case and no overt hostile act or present threat by Helen Irby toward the appellant was shown (the appellant admitted she exhibited no weapon and made no hostile demonstration), the trial court did not err in excluding reputation testimony.
  • On evidence of prior fights: The court found such proof immaterial where it was not claimed that the appellant had participated in those prior fights; thus exclusion was proper because the prior difficulties had no probative value as to appellant's guilt or innocence.
  • On the offered testimony about the appellant arranging medical aid after the shooting: The court observed the State did not assert flight; the evidence that appellant told his wife to tell officers he was at home and that officers later found him at home negated any flight issue. Moreover, evidence of offers to procure medical aid after a mortal wound is not part of the res gestae and is incompetent as self-serving (quoting 22 C.J.S.). The trial court did not err in excluding it.
  • On sufficiency of the evidence and intent: The court reiterated the principle that unlawful use of a deadly weapon is prima facie evidence of intent to kill (citing Jeff and Howard) and that the issue of intent is ordinarily for the jury. Given the evidence (shooting Helen with a shotgun while she was unarmed and making no overt demonstration), the jury was warranted in finding appellant guilty beyond a reasonable doubt; the court found the proof to be overwhelming.
  • On limitation of argument time: The court recognized the trial court's authority to place reasonable limits on argument (citing Senior and Wingo) to protect court time and other litigants. Considering the short trial day, small number of witnesses and the simple legal issue (self-defense), the court held the forty-minute per side limit (including reading instructions) was not an abuse of discretion and produced no prejudice.
  • On alleged jury exposure to outside influences: The appellant alleged that while the jury deliberated the judge met with the district attorney, county attorney and deputy sheriff in his office adjoining the jury room where a small hole had been cut in the wall. The motion alleged only a possibility that the jury may have overheard the conference and might have been prejudiced thereby. The court held that allegation showed, at most, a mere possibility of exposure and that established Mississippi authority (Sanders, Turner) requires more than mere possibility to vitiate a verdict. The court therefore found no error in refusing to hear proof and denied a new trial on that ground.
  • Final review: The court considered the remaining assignments and concluded none presented reversible error.

Holding and Implications

Holding: The judgment of conviction is AFFIRMED.

Implications:

  • Direct effect: The appellant's conviction for assault and battery with a deadly weapon (shotgun) and his seven-year sentence were affirmed, and he was not granted a new trial.
  • The Court applied established Mississippi principles: reputation evidence for violence is inadmissible where the case is not circumstantial and where no overt hostile act or present threat was shown; offers to procure medical aid after an attack are self-serving and inadmissible; use of a deadly weapon gives rise to a prima facie inference of intent to kill which is a jury question; mere possibility of jury exposure to outside influence is insufficient to set aside a verdict.
  • No new rule of law was announced; the decision applies existing authorities to the facts and affirms the trial court's discretionary rulings.
Show full summary ...

TILLMAN v. STATE

Howard R. Pigford, Meridian, for appellant.

I. The Lower Court erred when it excluded from the consideration of the jury evidence offered by the appellant showing the bad reputation of the prosecuting witness, Helen Irby, for peace and violence in the community where she lived. Blalack v. State, 79 Miss. 517, 31 So. 105; Dillon v. State, 196 Miss. 625, 18 So.2d 457; Garner v. State, 28 Fla. 113, 9 So. 835, 29 Am. St. 232; King v. State, 65 Miss. 586, 5 So. 97, 7 Am. St. 681; Lee v. State, 160 Miss. 618, 134 So. 185, 64 A.L.R. 1030; Moseley v. State, 89 Miss. 802, 41 So. 384; Pritchett v. State, 22 Ala. 39, 58 Am. Dec. 250; Scott v. State, 203 Miss. 295, 34 So.2d 718; Smith v. State, 75 Miss. 542, 23 So. 260; Spivey v. State, 58 Miss. 858; Wesley v. State, 37 Miss. 327, 75 Am. Dec. 62; 64 A.L.R. 1029-30; 4 Am. Jur., Secs. 103, 113 pp. 181, 184-85.

II. The Lower Court erred in excluding from the jury testimony offered by the appellant to show recent acts of violence committed by the prosecuting witness in or near the place of business of appellant. Kuykendall v. State, 200 Miss. 192, 26 So.2d 471; Lee v. State, supra; McDowell v. State, 189 Miss. 617, 198 So. 564; Scott v. State, supra.

III. The Lower Court erred in overruling the motion of the appellant for a new trial in this cause in each and every respect and ground set forth in the motion for new trial. Bang v. State, 60 Miss. 571; Blalack v. State, supra; Brooks v. State, 209 Miss. 150, 46 So.2d 94; Brown v. State, 87 Miss. 800, 40 So. 1009; Burrage v. State, 101 Miss. 598, 58 So. 217; Collins v. State, 99 Miss. 47, 54 So. 665; Daniels v. State, 196 Miss. 328, 17 So.2d 793; Edgar v. State, 202 Miss. 505, 32 So.2d 441; Godwin v. State, 73 Miss. 873, 19 So. 712; Green v. State, 97 Miss. 834, 53 So. 415; Griffin v. State, 196 Miss. 528, 18 So.2d 437; Howard v. State, 212 Miss. 722, 55 So.2d 436; Ingram v. State, 62 Miss. 142; Jones v. State, 66 Miss. 380, 6 So. 231, 14 Am. St. 570, and 97 Miss. 269, 52 So. 791; Jeffries v. State, 74 Miss. 675, 21 So. 526; Lee v. State, supra; Lewis v. State, 109 Miss. 586, 68 So. 785; McCoy v. State, 207 Miss. 272, 42 So.2d 195; McDowell v. State, supra; Martin v. State, 98 Miss. 676, 54 So. 148; Maury v. State, 69 Miss. 398, 10 So. 579; Outlaw v. State, 208 Miss. 13, 43 So.2d 66; Russell v. State, 53 Miss. 367; Scarbrough v. State, 204 Miss. 487, 37 So.2d 748; Scott v. State, 56 Miss. 287; Senior v. Brogan, 66 Miss. 178, 6 So. 649; Wade v. State, 155 Miss. 648, 124 So. 803, 85 A.L.R. 1406.

IV. The Lower Court erred by refusing to allow the appellant to produce evidence and make a record upon the tenth ground set forth in the motion for a new trial; such evidence being offered by the appellant and the Lower Court denying appellant his motion to be allowed to produce and adduce evidence and testimony in support of said tenth ground in the motion for new trial, which evidence was essential so that the Supreme Court might decide from such evidence whether or not the appellant had had such a fair and impartial trial as is guaranteed by the Constitution of the United States and by the Constitution of the State of Mississippi. Brooks v. State, supra; Jeffries v. State, supra; Lee v. State, supra; Scarbrough v. State, supra; Wade v. State, supra; Weyen v. Weyen, 165 Miss. 257, 139 So. 856; Secs. 24, 26, Constitution 1890; Sec. 1639, Code 1942.

V. The Lower Court erred in overruling appellant's motion to be allowed one hour of time for argument of this cause in the Lower Court before the jury, it being a constitutional right of appellant to be allowed sufficient time so that he might have a fair and constitutional trial, and that the amount of time moved by appellant to be allowed was not unreasonable, and the Lower Court abused its discretion in refusing one hour and restricting the time allowed to forty minutes, including the reading of instructions. Brooks v. State, supra; Lee v. State, supra; Scarbrough v. State, supra; Wingo v. State, 62 Miss. 311; Secs. 24, 26, Constitution 1890.

Joe T. Patterson, Asst. Atty. Gen., Jackson, for appellee.

I. Appellant first contends that the Trial Court erred in refusing to permit appellant to introduce evidence showing the bad reputation of the prosecuting witness, Helen Irby, for peace and violence. Under the facts as disclosed by this record, the Trial Judge properly refused to permit such evidence to be presented to the jury. Chase v. State, 46 Miss. 683; Spivey v. State, 58 Miss. 858.

II. Appellant contends that the Trial Court erred in refusing to permit him to show previous fights between the prosecuting witness, Helen Irby, and others in appellant's place of business. Although the Court sustained an objection by the State to the introduction of evidence of previous fights in appellant's place of business by the prosecuting witness, it will be observed on the bottom of page 93 of the record, and concluded on page 94, that the appellant did make this proof before the jury, it being shown that the prosecuting witness had been in appellant's place about four times, and had engaged in only one fight in appellant's place of business, that being the fight that occurred about an hour before the shooting.

III. Appellant contends that the Trial Court erred in overruling his motion for a new trial, arguing as reason therefor, among other things, the exclusion of testimony during the cross-examination of the State witness, Bill Alford, with reference to whether or not the appellant sought to make arrangements for medical aid for the prosecuting witness. The State made no attempt to show flight by the appellant after the shooting. The uncontradicted proof shows that the appellant, upon leaving the scene, told his wife to tell "the law" that he was at home. When the officer went to the home of appellant he found the appellant, and upon the officer picking up the gun belonging to appellant, the appellant readily admitted that the gun was the gun that he had shot the prosecuting witness with. The State does not contend that the appellant fled the scene of the shooting. Therefore, the proof offered by the appellant was immaterial and of no consequence.

IV. Appellant also contends that the Trial Court erred in refusing to permit appellant to cross-examine the State witness, Lucy Tillman, with reference to the day of the week the 21st day of November, 1954, the alleged date of the shooting, occurred upon. This, too, was immaterial, as the shooting of the prosecuting witness by the appellant is not denied, but is admitted. Therefore, the exact date of the month or day of the week as to which same occurred upon is wholly immaterial. Time was not of the essence of the offense charged herein. Sec. 2451, Code 1942.

V. The Trial Court did not err in refusing to permit appellant's attorney to offer testimony with reference to the "attitude" of the prosecuting witness at the time she and Lucy Tillman returned to appellant's place of business. The Trial Court properly restricted such questioning to what the prosecuting witness did, leaving it for the jury to draw its own conclusion as to the "attitude" of the prosecuting witness.

VI. Construing the granted State instructions and instructions granted the appellant, all together as this Court has held many times must be done, it cannot be said that the jury in this case was without adequate instructions, or that the appellant was deprived of any material right by the refusal of certain instructions requested by him.

VII. The case at bar presented a clear-cut issue of fact that was properly submitted to the jury with proper instructions for its determination of the guilt or innocence of this appellant.

VIII. Appellant's defense herein is under Section 2218(f), Code of 1942, which provides that the killing of a human being by another shall be justifiable — "When committed in the lawful defense of one's own person . . ., where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury and there shall be imminent danger of such design being accomplished." The proof as disclosed by this record clearly shows that the jury was warranted in concluding that the appellant had no reason to believe that appellant's life was in danger, as would warrant the appellant in taking her life. The undisputed proof is that the appellant shot Helen Irby at a time when she was at a distance approximately ten feet from him with a counter between them. Of course, as to whether the appellant intended to kill and murder Helen Irby is a question for the determination of the jury.

IX. Whether the means used in the assault and battery were likely to kill is primarily a question for the jury. Blain v. State, 196 Miss. 603, 17 So.2d 549; Bolin v. State, 209 Miss. 866, 48 So.2d 581.

X. The unlawful use of a deadly weapon is said to be prima facie evidence of the intent to kill; besides, the issue of intent is ordinarily for the jury. It is also well settled that no particular period of deliberation is required to make a killing deliberate, since malice may be suddenly formed even in an instant. Howard v. State, 212 Miss. 722, 55 So.2d 436.

XI. The test in such case is whether or not the accused intends to kill and murder at the time he fires the shot, or otherwise inflicts a wound. Ceary v. State, 204 Miss. 299, 37 So.2d 316.

XII. As to appellant's contention that the jury may have been influenced by overhearing a conversation between the Trial Judge, the District Attorney and the County Attorney, we submit that the facts upon which this contention is based wholly fail to warrant any conclusion that the jury might have been unduly influenced. Certainly, it is to be presumed that the Circuit Judge, the District Attorney and the County Attorney would not be guilty of any conduct calculated to unduly influence the jury. The mere fact that the Judge and the prosecuting attorneys held a conference in an adjoining room to the jury room would not warrant a presumption that the jury overheard the conference and was thereby influenced in rendering a verdict. Juries are supposed to be, and in most instances are, made up of men whose character and ability to determine a cause submitted to them cannot be swayed by some trival occurrence in their presence or hearing. The incidents related by appellant with reference to the conference between the Judge and the prosecuting attorneys was a routine incident in Trial Court procedure that perhaps occurs sometime during every term of Circuit Court in each of the eighty-two counties. To hold that such incidents necessitate the setting aside of a jury verdict would make it necessary that a jury be virtually entombed in some remote room or building during its deliberations.

XIII. It shall be within the sound judicial discretion of the Trial Judge as to how long he will keep the jury in deliberation, and this discretion will not be reviewed on appeal, unless there has been a clear abuse of it. Character v. State, 212 Miss. 30, 53 So.2d 41.

XIV. Before this Court will reverse a cause, it must be satisfied of two facts: first, there must be error; and second, the error must be prejudicial to the appellant. Beale v. State, 213 Miss. 476, 54 So.2d 921.

XV. Appellant contends that the Trial Court erred in overruling appellant's motion that he be allowed one hour of time for argument of this cause to the jury. The Court allowed forty minutes to each side for argument of the case, including the reading of instructions. Many years ago this Court, in construing Section 26 of the Constitution of 1890, which guarantees to the appellant the right to be heard by counsel, and Section 2521, Code of 1942, which limits the number of counsel to be heard by the State and the defendant to two, unless the Court for special reason sees fit to relax the rule, held that the right to be heard does not prohibit the Court's placing reasonable limitations of time on argument of counsel. Wingo v. State, 62 Miss. 311.

1. Homicide — assault with intent to kill — evidence — as against plea of self-defense — supported verdict of guilty.

2. Homicide — same — circumstantial evidence — character of prosecuting witness — properly excluded.

Where case was not one of circumstantial evidence and where proof was devoid of any overt hostile act of prosecuting witness, Trial Court properly excluded evidence as to prosecuting witness's character for peace or violence.

3. Homicide — same — evidence — previous difficulties — between prosecuting witness and others.

Defendant's proffered evidence of previous fight between prosecuting witness and others in defendant's place of business was immaterial and irrelevant in view of fact that it was not claimed that defendant had been involved in any such fights.

4. Homicide — evidence — self-serving.

Evidence that after inflicting shotgun wound accused sought to arrange for medical aid for prosecuting witness was incompetent and self-serving.

5. Homicide — assault with intent to kill — evidence — sustained conviction.

Evidence sustained conviction for assault with intent to kill prosecuting witness.

6. Criminal law — courts — limiting argument.

Trial Court did not abuse its discretion in limiting each side to forty minutes time for argument, including reading of instructions, in view of small number of witnesses and simple issues involved.

7. Criminal law — new trial — motion for — properly overruled — jury not exposed to outside influences.

Record sustained action of Trial Court, on motion for new trial, in refusing to permit convicted defendant to offer proof of his allegations that he had been prejudiced during jury deliberations by fact that, while jury was deliberating, Judge had called District Attorney, County Attorney, and Deputy Sheriff into his office, which had common wall with jury room in which there was a small hole about ten by fourteen inches near ceiling, and although defendant did not know subject of conference he had been informed that it concerned possible retrial of case in event jury disagreed.

8. Criminal law — juries — exposing to outside influences.

The mere possibility that jury has been exposed to outside influences is not sufficient to vitiate their verdict.

Headnotes as approved by Holmes, J.

HOLMES, J.

The appellant was convicted in the Circuit Court of Lauderdale County on an indictment charging him with assault and battery with a deadly weapon, towit, a shotgun, upon Helen Irby by shooting and wounding her, with intent to kill and murder her. He was sentenced to a term of seven years in the State penitentiary and from the judgment of conviction he prosecutes this appeal.

The facts as disclosed by the State's proof are brief, and we state them as follows: The appellant operated an establishment in a building at or near Marion in Lauderdale County. It appears to have been a combination cafe and dance hall wherein beer was served to the public. On a Saturday or Sunday night, on the 20th or 21st of November, 1954, a fight occurred in the place in which the prosecuting witness, Helen Irby, and one J.W. Martin were the principal participants. The fight developed into a general brawl, in which someone hurled a piano stool and other particles of furniture were hurled and a table was turned over and general disorder resulted. The appellant was not a participant in the fight. When the atmosphere cleared, the appellant ordered the participants, among them, Helen Irby and Lucy Tillman, a sister-in-law of the appellant, to leave the building and not come back. As Helen Irby and Lucy Tillman were leaving, one of them remarked that they were leaving but that they would come back. In about an hour and a half or two hours, which was sometime before midnight, Helen and Lucy returned. Lucy preceded Helen into the building, remarking, "Where is all the bad s____ of b____ at?" The wife of appellant answered that there were no bad people there. Shortly, Helen followed Lucy into the building and went over to the counter where she stopped and stood for some ten minutes. She was wearing blue jeans and she stood with one foot on the foot rail of the counter, one arm on the counter, and one hand in the pocket of her blue jeans. The appellant was behind the counter and on the opposite side from Helen. Helen made no threat or demonstration and committed no overt act indicating a purpose to attack the appellant, and exhibited no weapon of any kind. The appellant told her three times to leave, and she answered she would leave when Lucy left. The appellant then reached for his shotgun, which was behind the counter, and took a shell from his pocket and loaded the gun and fired at Helen, striking her in the stomach. According to the undisputed proof, he fired at a time when Helen was wholly unarmed and making no demonstration of any kind to attack the appellant or do him any bodily harm. The parties were about ten feet apart and on opposite sides of the counter when the appellant fired. Helen fell to the floor and according to some of the witnesses her whole stomach came out. The appellant left the place after the shooting, telling his wife to tell the officers if they came that he would be at home. Helen was later removed in an ambulance to the hospital where she remained for about six weeks and miraculously recovered.

The testimony for the defense corroborated the state's witnesses in all material respects, except the appellant testified that Helen told him as she came to the counter that she was going to get him, and that he thought she had an automatic in her pocket and that she was going to kill him, and appellant's daughter testified that Helen "looked mean" at the appellant as she stood at the counter. The appellant admitted that at the time he fired Helen was not exhibiting any weapon and was making no demonstration to do him any bodily harm. He said at one time in his testimony that he didn't know why he shot her, and at another time that he shot her because he was scared.

(Hn 1) The appellant pleaded self defense, and the court submitted to the jury under proper instructions the issue as to whether or not at the time the appellant fired he had reasonable grounds to apprehend that he was in real or apparent danger of losing his life or suffering great bodily harm at the hands of Helen Irby. The jury resolved this issue against the appellant, and we think rightly so.

The appellant has made a number of assignments of error but we shall address ourselves to only those assignments which, in our opinion, merit discussion.

(Hn 2) The appellant complains that the trial court erred in sustaining the State's objection to testimony offered by the appellant to show the general reputation of the prosecuting witness, Helen Irby, for peace or violence was bad. Such character of evidence is generally admissible only in cases of circumstantial evidence, to be considered by the jury in aid of their inquiry into the origin and progress of the conflict in which the accused was engaged, and in cases where the proof shows that the deceased or prosecuting witness has committed some overt act or made some hostile demonstration or threat indicating a present purpose to do the accused some great bodily harm, and the evidence is offered as bearing upon the reasonableness of the accused's claimed belief that an attack was about to be made upon him. Chase v. State, 46 Miss. 683; Spivey v. State, 58 Miss. 858. This is not a case of circumstantial evidence, and further, the proof is wholly devoid of any overt act or hostile demonstration committed by Helen Irby toward the appellant, or of any threat by Helen Irby toward the appellant except the veiled statement testified to by the appellant that she was going to get him. The appellant himself, however, admitted that she exhibited no weapon and made no effort to draw a weapon or to do the appellant any bodily harm, and made no hostile demonstration of any kind toward the appellant, although she stood on the opposite side of the counter from him for some ten minutes. The proof further developed that Helen Irby was wholly unarmed, and had nothing in her pocket but a fifty cents piece. We think, therefore, that the court was not in error in excluding the proffered testimony.

(Hn 3) It is also contended by the appellant that the trial court erred in refusing to permit him to show previous fights between the prosecuting witness and others in the appellant's place of business. It was not claimed that appellant was involved in any of such fights. Such evidence was of no probative value in determining the guilt or innocence of the appellant on the charge preferred against him, and was wholly immaterial and irrelevant to the issues involved, and we think the trial court properly excluded it.

(Hn 4) It is further contended by the appellant that the trial court erred in excluding testimony on cross-examination of the State's witness Bill Alford, with reference to whether the appellant sought to arrange for medical aid for the prosecuting witness after the shooting and before leaving the scene of the difficulty. It is not contended, and could not be successfully maintained, that the claimed offer to obtain medical aid was a part of the res gestae, but it is argued that the evidence was offered to rebut any claim that appellant fled the scene. It was not contended by the State, and is not contended on this appeal, that appellant fled the scene. In fact, it appears in the proof introduced without objection that when he left the scene he told his wife he was going home and to tell the officers if they came that they could find him there, and they did thereafter, in fact, find him at his home. There was, therefore, no issue as to flight by the accused, and the proffered testimony was immaterial. Further, however, it is clear that the testimony was wholly incompetent as being self-serving. "Evidence that after a mortal wound was inflicted accused offered to wait on or stay with the dying man, or went for a physician, is incompetent as self-serving." 22 C.J.S., Criminal Law, p. 1271. We therefore find no merit in this contention of the appellant.

(Hn 5) The appellant also contends that the verdict of the jury is contrary to the overwhelming weight of the evidence. The principal contention of the appellant under this assignment is that the proof is insufficient to show an intent to kill on the part of the appellant. In the case of Jeff v. State, 39 Miss. 593, this Court held that proof of the unlawful use of a deadly weapon by the accused in a case of assault and battery is prima facie evidence of an intent to kill. Again in the case of Howard v. State, 212 Miss. 722, 55 So.2d 436, this Court held that the use of a deadly weapon by the accused in a case of assault and battery is prima facie evidence of an intent to kill, and that the issue of intent is ordinarily for the jury. The proof in the case at bar shows that Helen Irby was fired upon by a shotgun. According to the proof, the appellant fired upon the prosecuting witness at a time when she was making no demonstration to do him any bodily harm. He said on cross-examination in one place that he didn't know why he did it, and in another place he said he shot because he was scared. The appellant argues that since he hit the prosecuting witness in the stomach it does not indicate an intention to kill, since her body from the top of the counter up was exposed and the accused could have shot her in the head. It might be said here, however, that there are few more vulnerable spots in the human body than the stomach. We think that the appellant's contention under this assignment is without merit. The jury were amply warranted under the proof in finding that the defendant was guilty beyond a reasonable doubt. In fact, the proof in this record to support that finding is overwhelming. (Hn 6) The appellant also complains that the trial court erred in overruling his motion to be allowed one hour for argument of his case to the jury. The power of the court to limit the argument of counsel is recognized by this Court in the case of Senior, et al v. Brogan, 66 Miss. 178, 6 So. 649. In that case, this Court held that the trial court had unreasonably limited the argument of counsel in order to accomodate his own personal convenience, that is to say, in order that he might get away on an early train and return to his home. The Court said, however, speaking through Judge Cooper: "The power of the court to limit argument of counsel springs from the duty of protecting other litigants and the public against the unnecessary use of the time of the courts." In the case at bar, the court limited each side to forty minutes, including the reading of instructions. The trial of the case began at nine o'clock in the morning, and by ten minutes past four in the afternoon the testimony had been concluded. Six witnesses appeared for the State and eleven witnesses appeared for the defense. Of the eleven witnesses for the defense, five were offered to show the alleged bad character of the prosecuting witness. Objection to the testimony of these witnesses was sustained by the court. The issue was a simple issue, that is, whether or not appellant fired at a time when he was in real or apparent danger at the hands of Helen Irby. In other words, his defense was self-defense. In view of the small number of witnesses and the simple issue involved, we are unable to say that the court abused its power in the limitation which it placed upon the argument of counsel. Further than that, it is manifest that the action of the court in limiting the argument was of no prejudicial effect, since the testimony in the case as to the appellant's guilt is overwhelming.

(Hn 7) It is further seriously contended by the appellant that the jury was exposed to prejudicial influence during its deliberation and that, therefore, the verdict of the jury should be set aside. This assignment is found in the tenth ground of appellant's motion for a new trial and alleges substantially the following: The case was submitted to the jury between five and five-thirty o'clock in the afternoon of February 15, and around eight o'clock the jury reported that they were unable to arrive at a verdict, and the court instructed the bailiff to take the jury to supper and lock them up over night in the jury dormitory. The next morning, the judge arrived in the courtroom about nine o'clock. No verdict had then been returned. The judge announced that he wanted to see the district attorney, the county attorney and the deputy sheriff in his office, which was immediately through a door to the rear of the judge's bench. The judge accompanied by these officials went into his office and closed the door. His office adjoined the room in which the jury was deliberating. Airconditioning was in the process of being installed in the courthouse and a small hole about ten by fourteen inches in dimensions had been made at the top of the wall near the ceiling. The opening went all the way through the wall. Appellant's motion alleged that he did not know what took place in the conference between the judge and the other officials but that he was informed that the subject of discussion was a retrial of this case in the event the jury disagreed. It was not set forth in the motion that the conversation had by the officials was in tones audible to the jury, or that the jury heard the discussion, or that they could have heard the discussion. It is not set forth in the allegations of the motion that such discussion prejudicially affected the jury, but only that the jury may have heard the conversation and may have been prejudicially affected thereby. The appellant moved the court to be permitted to introduce evidence in support of the allegations of the motion. The court declined to hear proof in support of the motion, and we think committed no error in so doing. Accepting as true the allegations of the motion, they showed nothing more than a mere possibility that the jury heard what was said in the conference and, if so, a mere possibility that the jury could have been prejudically influenced thereby. The mere possibility that the jury may have heard what was said, and if they did, they may have been prejudicially influenced thereby, is insufficient to vitiate the verdict. (Hn 8) In the case of Sanders v. State, 150 Miss. 296, 116 So. 433, the Court said: "The possibility that a jury has been exposed to outside influence is not sufficient to vitiate their verdict." To the same effect is the case of Turner v. State, 176 Miss. 862, 170 So. 642. We therefore find that this contention of the appellant is not well founded. To hold otherwise would be to grant this appellant a new trial on the merest technicality. Common sense dictates that even if the jury had heard what was said it would not have influenced the jury to return a verdict against the appellant, but would have had the effect of causing the jury to persist in their disagreement, thus bringing about an early discharge of the jury. While well-reasoned, established legal precedents and fundamental principles should never be sacrificed, it is not required that the law shall shut its eyes to the elements of common sense. Too often mere technicalities which could have had no prejudicial effect upon the outcome of the trial and which violate no fundamental right of the accused are invoked to obtain a new trial for those whose guilt is manifest. We are accordingly of the opinion that the trial court committed no error in refusing to permit the appellant to offer proof in support of the allegations of the motion.

We have carefully considered the other assignments of error not herein specifically discussed and we are of the opinion that the same present no reversible error. The judgment of the court below is accordingly affirmed.

Affirmed.

Roberds, P.J., and Hall, Ethridge and Gillespie, JJ., concur.

Use AI to get other relevant cases.
Try AI Pro free for 7 days Upgrade to AI Pro

Comments

TILLMAN v. STATE
(Nov 7, 1955)