Leverett v. State

Pottek, J, delivered the opinion of the court. The appellant in this case was indicted by the grand jury of Perry county on a charge of murdering one Ed. Bradley. He was tried once in Perry county, which resulted in a mistrial. A motion for a change of venue was made, and the venue changed to Forrest county. The first time the ■case was tried in Forrest county, there was a hung jury, and a mistrial entered, and upon a third trial of the case, being the second trial in Forrest county, the defendant was convicted and sentenced to the penitentiary for life. The appellant admitted at the trial that he had killed Bradley, but claimed that he acted in self-defense. This case must be reversd. The errors committed in the court below begin with the court’s examination of the jurors on voir dire. We quote partially from the examination of one of the jufors by the court on his voir dire examination, which questions counsel agree are the same as those propounded to all the jurors by the court in qualifying the jury: “By the Court: Q. Do you believe in law enforcement? “Juror: A. Yes. Q. Are you in sympathy with law breaking of any kind — do you believe in enforcing all the criminal laws of the state? A. Yes. Q. You realize that this is what protects you? A. Yes. Q. Are you in favor of helping to enforce all laws as a citizens? A. Yes. Q Do you feel like it is your duty as a citizen to enforce the laws? A. Yes. Q. Do you understand, when you are taken on the jury, it is your duty to convict people because you are in sympathy with law enforcement do you? A. No. Q. Now, — 404 — in this case Mr. Leverett is charged with murdering Ed. Bradley over here at Richton, Miss. If yon are taken as a juror to try Leverett, will you go into the jury box and sit. there and listen carefully to the testimony that the witnesses give you from the stand, and consider that carefully, and then take the written instructions that' the court gives you; that is, the law in the case. The court will give you certain written instructions that will be applicable to the ease, and all the law there is in the case. There will not be any law applicable to the case except the written instructions that I give you. ^Will you accept that as the law of the case? A. Yes. Q. Now if you are taken as a juror to try this case, will you try it on sentiment? Are you one of these fellows that pay attention to every insinuation or suspicion, or have they got to show you the facts before you will act? A. The facts. Q. Suppose that after you have heard.all the evidence in the case you are not satisfied that the defendant is guilty — you have a reasonable-doubt of that — will you give the defendant the benefit of the doubt? A. Yes, Q. But if you are satisfied that he is guilty of murder beyond a reasonable doubt, have you the moral courage to vote him guilty? Have you got the nerve to do your duty? A. Yes, sir. Q. Would you do it? A. Yes, sir. Q. If the evidence in this case satisfied your mind beyond a reasonable doubt and to a moral certainty that T. IT. Leverett murdered Ed. Bradley, as charged in the indictment, would you find him guilty? A. Yes, sir. Q. You would do that now, would you? A. Yes. Q. You feel like you have the moral courage to do it, do you? A. Yes. Q. If you go on the jury and sit there to try the case, after you have heard all the evidence in the case, in the state’s lawyers, Mr. Hall, Mr. Talley, or Mr. Cassedy, or Mr. Currie, or Mr. Davis would get up there and try to inject something in there, insinuation, would you pay any attention to that? A. No. Q. You would go by the law and the evidence; you would say: ‘Gentlemen, you have not shown me that; that is not in the record.’ Would you do that? A. Yes. Q. You are going to try the — 405 — case by the law that the court gives yon, and by the evidence that yon hear from the stand? A. Yes. • Q. From these two thing’s yon promised me upon .your sacred word of honor and your oath that yon will try it? A. Yes.” There was objection to the questions propounded by the court, upon the g-round that the court indicated to the proposed jurors what finding they ought to make on the evidence afterwards to be introduced by the defendant in the trial of the case. The defendant in this case claimed that the controversy between himself and the deceased arose on account of the discovery of illicit relations between the wife of the defendant and the deceased, Bradley. On the defendant’s theory of the case, the testimony with reference to the improper relations above mentioned was admissible because the decedent had made certain threats, growing out of this controversy, against the defendant, and because the circumstances of the parties were explanatory of the condition of the mind of deceased at the time of the homicide, and tended to show what the deceased probably' would have done, under the circumstances, and it is insisted that such facts and circumstances are corroborative of defendant’s statement that he shot the decedent in self-defense, and that when the court referred in his examination of the jurors to ‘ ‘ sentiment being injected into the record,” the question went directly to the weight the jurors should give to the evidence to be introduced. The court, undoubtedly, anticipated that evidence would be introduced showing the illicit relations between the decedent and appellant’s wife, and was attempting to forestall any attempt on the part of appellant to plead the so-called “unwritten law.” The evidence, however, offered by the appellant, with reference to the illicit relations between his wife and the ■decedent, and the controversy and threats growing out of same, was a material part of his case, and served a legitimate purpose as corroborative of the appellant’s version of the affair in so far only, of course, as it shed light on who was the aggressor. Evidently the judge, in question — 406 — ing the jurors about whether or not they would be controlled by ‘ ‘ sentiment, ’ ’ anticipated this very testimony j and,, by bis questions, greatly disparaged this evidence. The effect of such questions on the minds of the jurors was as-effective as if the judge bad said, in so many words: “The self-defense story in this case is ‘trumped-up.” The defendant is trying by this means to plead the ‘unwritten law. ’ ” The whole trend of the voir dire examination was to influence the proposed jurors against the defendant, and to-strongly impress them with the idea that their duty was-to convict. Each juror was given to understand that' he would be a man of very little moral courage unless he found a verdict of guilty in this ocase. Such examination was-erroneous, and very prejudicial to the defendant. The testimony of Dr. W. W. Weathersby was to the-effect that he met Bradley, the deceased, at Brookhaven, and that Bradley told him he was on a hunt for a woman, and asked him if he knew the Dunns (Mrs. Leverett having been a Dunn before her marriage), and was told that he did; and Weathersby testified that Bradley told him that the woman he was hunting for was a married woman, and remarked that there would be trouble if her husband, who-was at Columbia, found out about their relations, and: that he would either have to kill the husband or the husband would kill him. This evidence was admissible, and the court erred in excluding it. Though uncommunicated, the conversation related to the feeling Bradley had for Lever-ett, and was threatening. Likewise, the testimony of Mrs. Leverett, with reference'to a conversation with Bradley over the telephone,, which conversation was communicated to Leverett, was-admissible for the same reason. Harris v. State, 72 Miss. 99, 16 So. 360; Holly v. State, 55 Miss. 424. ^ The testimony of S. W. Wilkerson, who carried Bradley from Columbia to McComb City on the day he is said to' have gone to Brookhaven, should not have been excluded, because it was corroborative of the testimony of Mrs-.. — 407 — Leverett and Dr. Weathersby, to the extent of showing Bradley was in Brookhaven at the time indicated by their testimony. The testimony of Mrs. Leverett and Dr. Weathersby was vital to defendant’s case, as corroborative of his own evidence that he acted in self-defense. There was also error in excluding the testimony of Mrs. Leverett that she had written the letter found by Leverett in Bradley’s pocket at Columbia. The introduction of this evidence had a tendency to prove the corroborative circumstances of the defense genuine. It was error to permit the introduction of evidence that a man in a Palm Beach suit of clothes, such as defendant wore at the time, was seen, the night before the killing, looking up into the mill where Bradley was working, without further identification. The fact that a person had on Palm Beach clothes or white clothes in the summer time, when many people wear such clothes, is insufficient, to show that a person who had on such clothes was a particular person. The appellant assigns as error the giving of instructions 5 and 9 for the state, upon the ground that these instructions single out a part of the testimony as important and material, and calls the jury’s special attention thereto; and it is urged that these two instructions are on the weight of the evidence, and should not have been given. The instructions are as follows: “(5) The court instructs the jury for the state that, even though you believe from the evidence that Leverett found in and removed from the pocket of Bradley a letter and then read the same, and that the same is the letter introduced in this case, still the finding and reading of this letter is no excuse, justification, nor defense for the taking of the life of Ed. Bradley, if you believe from the testimony beyond a reasonable doubt that Leverett took the life of Bradley, and you should not, under your oaths as jurors, consider the letter as an excuse, justification, or defense.” — 408 — “(9) The court further instructs the jury for the state that, even though you believe from the evidence Leverett’s wife wrote the letter introduced in this cause, and which Leverett claims he got out of Bradley’s pocket at Columbia, still such conduct in writing the same on the part of Leverett’s wife does not, in law, justify, excuse, nor make a legal and lawful defense for the taking of Ed. Bradley’s life by Leverett, the defendant, and you should not so consider the same, if you believe from the testimony beyond a reasonable doubt Leverett killed Ed. Bradley.” We think the above instructions bear directly on the weight the jury should give the evidence with reference to the letter found in Bradley’s pocket, and the jury were, in effect, told not to consider this evidence, although, as a matter of fact the evidence under consideration was important and material evidence as corroborative of the defendant’s claim of self-defense. The giving of instruction No. 8 for the state is assigned hy the appellant as error. This instruction reads as follows : ‘ ‘ The court further instructs the jury for the state that if you believe from the testimony beyond a reasonable doubt that the fatal shot fired by the defendant was fired after the deceased, Bradley, had wheeled or turned his back to the defendant, and while the defendant was in no real or apparent danger at the hands of Bradley, then under the law there is no excuse for, or justification of, the defendant for the same, if you believe from the testimony beyond a reasonable doubt that he fired it willfully, feloniously, and of his malice aforethought to kill and murder Ed. Bradley. ’ ’ This instruction, in effect, instructs the jury to find the defendant guilty even though he fired the first shot in self-defense, if the deceased was killed by the subsequent shots after he had turned his back. The testimony for appellant showed that the shots were fired in rapid succession, and that, on account of the smoke and excitement, the defendant did not know the position of the deceased when he shot. — 409 — the last three shots. This instruction entirely ignored the defendant’s version of the shooting, and what occnred at the time, and his testimony that the shots were fired in' rapid succession, and that in the excitement and smoke he did not know what position the deceased was in at the time he- fired the shots subsequent to the first. The giving of this instruction was manifest error. Instructions 6 and 7 are as follows: “ (6) The court further instructs the jury for the state that the only excuse or justification offered by the defendant for the killing'of Ed. Bradley is self-defense. “ (7) The court further instructs tthe jury for the state that the defendant offers self-defense for the killing of Ed. Bradley, and under the law in this case you should not consider any defense other than that offered and supported by the testimony in this case. ’ ’ While possibly not erroneous, by emphasizing the un-controverted fact that appellant’s defense in this case was self-defense, the above instructions reflected by innuendo on defendant’s testimony with reference to the trouble out of which this controversy grew. Why stress, with two instructions, the fact that the defense in this case is self-defense, when no other defense is suggested, except upon the presumption that the jury might otherwise give more credence to the testimony with reference to the original cause of the trouble than the trial judge thought it should give to such testimony1? In addition, these instructions seem, in a measure, to shift the burden of proof from the state to the defendant. Instruction No. 1, requested by the appellant, and refused, is as follows: ‘ ‘ The court instructs the jury for the defendant that, if you believe from the evidence that on a day prior to the killing defendant found a letter from his wife to the deceased, Bradley, and that the defendant and deceased, Bradley, got into a difficulty on account of same, if y©u believe when defendant and deceased, Bradley, separated Bradley said to the defendant: ‘You be God damned sure — 410 — you are ready the next time we meet; I ’ll never give you this chance again’ — or words to that effect, then you may take this into, consideration in determining who was the aggressor in the difficulty at Riehton. ’ ’ This instruction is correct, and should not have been refused. It was perfectly competent for the jury to take into consideration, in determining who was the aggressor in the difficulty at Riehton, the threats previously made by Bradley to the defendant. Instruction No. 3, asked for by the defendant, and refused, is as follows: “The court instructs the jury for the defendant that the law is that a man assaulted, or about to he assaulted, with a deadly weapon is not required by the law to wait until his adversary is on equal terms with him, hut may rightfully anticipate his action and kill him, when to strike in anticipation reasonably appeared to he necessary to self-defense; and, unless the jury are satisfied to a .moral certainty and beyond every reasonable doubt that the deceased, at the time of the killing, was not attempting to draw or use a pistol, then they must find the defendant not guilty. ’ ’ We think this instruction is applicable to the case, plainly states the law, and should have been given; no other instruction of like purport having been given. For the errors above set out, this case is reversed and remanded. jReversed and remanded.