Wiltcher v. State

McLain, C. Appellant, Lee Wiltcher, along with Lulu Wiltcher and Will Price, was indicted in the circuit court of Yazoo county for the murder of one John Wiltcher. Will Price pleaded guilty to the charge, and was sentenced to the penitentiary for life. Lee Wiltcher and Lulu Wiltcher secured a change of venue from Yazoo county to the First district of Hinds county, and at the March term, 1910, of said court, a severance .was granted, and Lee Wiltcher was tried, convicted, and sentenced to the penitentiary for life, and from that judgment he appeals to this court. — 388 — At the outset we will say that, so far as the facts iu this case are concerned, the jury was fully warranted in finding defendant guilty as charged, Therefore we will not go into the details of the testimony, except to say that John Wiltcher, the deceased, was about forty-five years of age, and was the husband of Lulu Wiltcher, who was about thirty-five years of age, and that Lee Wiltcher was a brother to John Wiltcher, being about twenty-one years old. All three parties were white people. The theory of the state was that Lee Wiltcher and Mrs. Wiltcher were on terms of undue intimacy. They desired to get John Wiltcher out of the way. They conspired together to have him killed, and did hire Will Price, a negro, to do the actual shooting, though' the evidence shows that both Lee Wiltcher and Mrs. Wiltcher were present, aiding and abetting, at the time John Wiltcher was shot down. The counsel for appellant assigns as gross error the action of the court in sending a certain message to the jury, after they had retired to consider of their verdict. He characterizes it “as the crowning injustice done this appellant on his trial for his life, and that, too, directly at the hands of the trial judge, who should have held evenly balanced the scales of justice, and left the jury free and untrammeled in its deliberation. ’ ’ Heretofore, in passing upon the principle advocated by appellant, this court, in equally as vigorous language, has said on this question that the jury, when it retires to consider of its verdict, should be left absolutely free from any and all outside influences. When it retires, it is supposed to be alone and in seclusion, so to speak, there to consider the case submitted to them with perfect freedom, and there to deliberate undisturbed by any .outward influences. This principle has been emphasized recently by this court in the case of Tollie May v. State, 54 South, 70. Other cases, in a more or less degree controlling of the question here presented, are as follows: Green v. — 389 — State, 53 South. 415; Shaw v, State, 79 Miss. 577, 31 South. 209; Brown v. State, 69 Miss. 398, 10 South. 579; Tarkington v. State, 72 Miss. 731, 17 South. 768; Senior & Sons v. Brogan, 66 Miss. 178, 6 South. 649; Barnett v. Eaton, 62 Miss. 768. Upon this contested point we will first let the record speak for itself. The only evidence on this point was given by Mr. Ferguson. Upon motion for a new trial, Mr. Ferguson, being duly sworn, testified as follows: “Q. What are your initials, Mr. Ferguson? A. A. J. Q. You were one of the sworn bailiffs in the charge of the jury? A. Yes, sir. Q. Who was the other bailiff? A. Mr. Roberts. Q. What time did the jury arrive at a verdict? A. I can’t say exactly. It was some time in the neighborhood of 9 o’clock Saturday night. Q. Whom did you report that fact to? A. We reported it to Col. Harding [the sheriff]. Q. You did that with a view of getting Judge Miller to come hack up here? A. Yes, sir. Q. Where was Judge Miller at that time? A. I suppose he was home, in Hazelhurst. Q. Did you deliver him any note from the jury? A. Yes, sir. J. Do you know what was in the note? A. I think it was asking permission to take a walk Sunday morning and evening. Q. Do you remember what statement they made in the note with reference to finding a verdict? A. As well as I remember, they said that they were hopelessly hung. Q. Have you any idea how they stood then? A. Going to supper, Saturday night, I understood there was four for acquittal, four for a life sentence, and four for hanging. Q.' And you say they reached a verdict about 9 o’clock Saturday night? A. Yes sir. Q. What statement did Judge Miller send hack to the jury room? A. He said, if they reached a verdict before 9 o’clock he would receive it. He said he wouldn’t receive a verdict on Sunday.” Cross-examination: “Q. Did Judge Miller say they might take a walk? A. Yes, sir. Q. What was it — 390 — Judge Miller said when you took him the note? A. He said he would receive a verdict if it was brought in about 9 o’clock, but, if not, he would go to Hazelhurst, and would not be back until Monday morning. Q. When they reached a verdict, you reported to them that Judge Miller had'gone to ■ Hazelhurst? A. Yes, sir.” It was agreed that the jury retired between 7:30 and 8 o’clock Friday night, after the argument had been closed. It was agreed that the note that was sent to Judge Miller from the jury be filed as an exhibit to this motion, if it can be found. From this testimony it clearly appears that the jury retired to consider of their verdict between 7:30 and 8 o’clock p. m. Friday evening, and that on the following Saturday evening they sent a note to the judge, through the bailiff, ‘ ‘ asking permission to take a walk on Sunday morning and evening,” and it further stated “they were hopelessly hung.” Judge Miller sent them word by the bailiff that “he would receive a verdict if it was brought in by 9 o’clock, but, if not, he was going to Hazelhurst, and would not be back until Monday morning, ’ ’ and that “he would not receive a verdict on Sunday.” Bear in mind that he further stated that permission would be granted them to take a walk on Sunday morning and evening. It is vigorously pressed that this was an improper communication to the' jury, and that its tendency was to coerce the jury into a verdict. When this testimony is fairly considered, we think it falls far short of showing that it could have been prejudicial to the interest of defendant. We think the judge acted strictly within his judicial rights, and that what he did was not improper. The action of the judge on this occasion is not violative of any of the principles laid down in the numerous decisions above quoted. In this action of the court, we see no error. It is strongly contended that the second and third instructions granted the state were erroneous and mis — 391 — leading. We have carefully examined these two instructions, along with all the other instructions in the case, and we are thoroughly satisfied that they, taken as a whole, fairly presented the law of the case to the jury. Counsel for appellant, with great zeal and earnestness, contends that it was error to admit the dying declaration of John Wiltcher, made to Dr. Frizzell, to the effect that, “when he walked toward the gate at the time he was shot down, he saw two men standing at the gate.” Dr. Frizzell stated that, when he was called to see the deceased, it was 4 or 5 o’clock in the morning, and that he found the deceased was mortally wounded, and that he was suffering very much, and that it was his opinion that he must soon die. However, he stated that the deceased did not say to him, or to any one in his presence, that he thought or believed that he was going to die. The court permitted the doctor to relate what the deceased said to him. Abstractly considered, this would not be admissible; but appellant overlooks the fact, when deceased was shot down about 9 o’clock that night, that a Mr. Henderson, a near neighbor, heard the gun fire and-the cries of'distress, and ran over to Wiltcher’s house immediately, and there saw him, which was about ten minutes after he heard the gun fire. The dying man stated to Henderson, after-Henderson told him that he had telephoned for Dr. Frizzell, “The doctor can’t do me any good; I won’t be here long,” and then made a statement to Henderson as to how he was killed, which was, in substance, the same thing he told Dr. Frizzel some hours afterwards. The' deceased died about 11 o’clock next day. If the deceased knew, when Henderson got there, that he was dying, then it is certainly not likely that he had any reason to believe otherwise when he made the statement to Dr. Frizzell, some seven or eight hours afterwards, when the testimony and his physical condition show that he grew weaker and weaker — 392 — from the hour he was shot to the moment of his death. It is not suggested in the record anywhere that the deceased, at any time during his illness, had or expressed any hope of recovery. Taking this in the light of the nature and extent of his wound, his physical state, his evident danger, his conduct, the occurrence of death soon thereafter, and all other circumstances connected therewith, we are of the opinion that the trial judge committed no error in admitting as evidence the dying declaration of the deceased as related by Dr. Frizzell. It is said that is was manifest error, highly prejudicial to the defendant, to permit the witness Betty Price to testify, over the objection of appellant, that a month before the murder of deceased Mrs. Wiltcher told her that “she was going to have her husband killed.” It is true, as stated by appellant, that the statement made by one conspirator before the conspiracy is formed should not bind his co-conspirators. The testimony in this case leaves it in doubt whether the time this statement was made by Mrs. Wiltcher was before or after the conspiracy was formed; but we rather think that the evidence tends to show more strongly that it was before the conspiracy was formed. It is further contended that it was error to permit Eosa Price to testify, over the objection of appellant, that when she and Will Price were going to John Wiltcher’s house, the night he was killed, Will Price said to her, when they arrived at the shop: “I am going to kill Mr. Wiltcher. If I don’t kill him, Cousin Eosa, Mr. Lee and Miss Lulu are going to kill me to-night or early in the morning.” The record shows that this statement was made some ten or fifteen minutes before the gun fired that killed John Wiltcher, and at a time when Price was not more than twenty or thirty yards from the spot where Wilteher was killed. It was error in the court in admitting that portion of the testimony of Bettie Price and Eosa Price as above pointed out; but, taking into consideration the nature of — 393 — their testimony, it is manifest, from the character of all the proof as contained in the whole record, that it was error without injury, harmless error. The indictment charging him with murder was legally founded and returned. He was tried by a fair and impartial jury, composed of his peers. The evidence established- his guilt. Indeed, there is nothing in the record suggesting a well-founded doubt upon this question. With the record showing all this, we are unwilling to reverse the case upon a mistaken judgment of the trial judge as to the admissibility of certain testimony, which it is manifest did not deprive the defendant of a substantial right, and could not possibly change the verdict of the jury. After a careful and thorough review of the entire record, we fail to discover any error which will warrant us in setting aside this verdict. We think the sentence imposed thereon by the court should be inflicted. The evidence shows that he was guilty of a most foul assassination, inspired by as base a motive as ever entered the human heart. Human life is sweet to all. It is a most precious and sacred thing; indeed, it is our all. The one who destroys it, without justification, should be made to feel the iron grasp of the strong arm of the law, by inflicting the punishment prescribed by it. “Laws are made to be enforced. Punishments are prescribed to be inflicted. If men do not respect the law, they must at least be made to fear it, and to know that, while justice may move with a leaden tread, it crushes with an iron heel. ’ ’ Affirmed. Per Curiam. The above opinion is adopted as the opinion of the court, and, for reasons therein indicated by the Commissioner, the case' is affirmed.