ON SUGGESTION OF ERROR. On suggestion of error to our decision of May 23, 1949, in this cause, counsel for the defendant reargues at length one of his original assignments of error to the effect that the trial court erred in overruling his objection to (Hn 9) *Page 135 testimony of the officers in regard to the defendant having told them and pointed out to them where certain money and other articles could be found, which had been taken from the place of business of the deceased where the homicide was committed. The argument is based on the ground that the defendant did not point out the money and other articles where he had concealed them until after he is alleged to have been whipped or beaten by the officers. But it should be noted that the record fails to disclose the introduction of any alleged confession by the defendant of his guilt of the crime charged. He claimed self defense, and the prosecution offered no testimony that he had ever made an admission to the contrary as to why he committed the homicide. The facts as to the identity of the person who had killed the deceased and as to who had carried the money and other articles from the scene of the crime and concealed them, and as to where they were concealed, were fully established by the defendant in a judicial confession made before the jury as a witness in his own behalf upon the trial of the case on its merits.
In Belote v. State, 36 Miss. 96, 72 Am. Dec. 163, where no confession made by the accused was permitted to go in evidence before the jury, but where the "testimony admitted went solely to the acts and conduct of the accused, in showing where the money was, and in producing and delivering it to the witness" the court announced the rule to be that "whatever diversity of opinion may exist on the question, whether confessions improperly obtained, and which are verified and corroborated by facts and circumstances afterwards found to be in accordance with the statement of facts made in the confession, are admissible in evidence on account of the corroboration, there can be no doubt but that acts of the accused done in consequence of the inadmissible confession, and tending to show his guilt, should be received in evidence."
In Garrard v. State, 50 Miss. 147, it was said that where a confession is induced by threats or by a promise or *Page 136 hope of favor, the same is inadmissible, but the court there said, "Although the entire confession cannot be received in evidence, the weight of modern authority is, that so much of the confession as relates strictly to the fact discovered by it may be given in evidence; for the reason, as before stated, of rejecting such confessions is the apprehension that the accused may have been induced to say what is false, but the fact discovered shows that so much of the confession as immediately relates to it, is true. It is, therefore, well settled upon reason, principle and authority, that it is competent to show that the witness was directed by the accused where to find the goods, and that they were found there accordingly."
In Warren v. State, 174 Miss. 63, 164 So. 234, 235, this Court held that, "Although a confession not voluntary may not be received in its entirety, nevertheless such particular parts of it as definitely direct to the place or places where property or other evidence may be found is admissible, when and if in pursuance thereof the property or evidence is accordingly afterwards found."
In Usrey v. State, 198 Miss. 17, 20 So.2d 847, 848, it was said that, "The vice of induced confessions, whether under pressure of threat or promise, is seen not so much in the method used as in the result. It is the improbability of its being true that vitiates it, even though the courts take frequent occasion properly to condemn forcible methods. 22 C.J.S., Criminal Law, Sec. 817, page 1426; 30 Am. Jur., Evidence, Sec. 483, p. 422."
The danger or vice which exists in the admission of an involuntary confession of the guilt of a crime, in that the confession may be untrue, is not involved in a case where the identity of the slayer is admitted by him on the witness stand and where he points out to the officers the place or places of concealment of money and other articles taken by him from the scene of the homicide, and where upon the trial of the case he takes the stand as a witness in his own behalf and admits as being true that he did take the money and articles from the scene and that *Page 137 he hid them at the place or places of concealment pointed out to the officers. The defendant cited the foregoing decisions of this court in this original brief herein and quoted from some of them extensively, but for the purpose of contending that there is both a state rule and a federal rule as to whether or not the accused shall be denied due process of law under the 14th Amendment to the Constitution of the United States. But it is our view that(Hn 10) it is as much the duty of state courts as it is of federal courts to protect the rights of a citizen under the federal constitution. We know of no federal rule that would require a reversal of a conviction because of the admission of testimony to the effect that an accused has pointed out the place of concealment of money and other articles belonging to one who has been slain and where the accused takes the stand as a witness during the trial and tells a jury under oath that he is the slayer, that he removed the money and other articles from the scene of his crime, and that he put them where they were concealed and pointed them out to the officers. Most assuredly it was not prejudicial to the defendant for the officers to tell the jury that the defendant had told them the same things that he swore to before the jury.
It is also argued again on suggestion of error that the defendant is at most guilty only of the crime of manslaughter in the event he is not entitled to be discharged under the rule announced by this Court in Weathersby v. State, 165 Miss. 207,147 So. 481, quoted from in our former opinion herein. The well settled rule announced in Weathersby v. State, supra, is not applicable here for reasons hereinafter stated.
(Hn 11) And a sufficient answer to the contention that the jury had no right to convict the defendant of murder is found in his own testimony before the jury as a witness in his behalf. He had first denied having been present when the homicide was committed. Then his version as a witness before the jury of how he killed his victim *Page 138 by hitting him once with an empty "7 Up" bottle and twice with an iron poker the size of his finger, the two latter blows being while he was lying on the floor underneath his victim, wholly fails to account for the fifty-seven cuts and bruises found on the body of the deceased, and one of which was a fatal cut over the heart.
Moreover, his theory either of self-defense or manslaughter, both of which were submitted to the jury under proper instructions, is wholly inconsistent with his denial to the officers at the beginning of their investigation that he was at the scene of the crime, and is inconsistent with the fact that he testified before the jury that immediately following the killing he took the pocketbook, a box containing the victim's money, and a coat, all of which he admitted carrying away with him, in his testimony before the jury. On the witness stand he also testified that his victim had two boxes, the one then before him at the trial as an exhibit to the testimony of the officers, and the other a green one — and that he did not exactly know which one of them he kept his money in, the proof showing that he had worked for the deceased and that he did not overlook to take the one in which the money was actually kept.
It was also for the determination of the jury as to whether or not the defendant's story was fantastic wherein he claimed that when he went to the place of business of the deceased on the occasion of the killing, he was asked, "Did I come back to work for him, and I told him I did", and that thereupon they agreed upon the amount of wages to be paid in addition to his board, and that when a balance alleged by defendant to be due for previous wages was mentioned by him, amounting to about $15.00, the deceased said: "Yes, I been trying to catch you, get hold of you, for trying to collect your money", and that thereupon the defendant was struck on the head with an empty wooden cold drink case, as the beginning of the fight.
The claim for prior wages due had been placed in the *Page 139 hands of an attorney about two weeks prior to the killing, and the attorney, who was a member of the state legislature, had advised the defendant, in substance, that the deceased had disputed the claim and "to wait" until he returned from the state Capitol where he was to be engaged again during the following week. Nevertheless the defendant testified that he went "back out there to get a settlement, to sort of agree with him . . ." etc. In fact he was walking from town out there not to apply for his job back, but to get a settlement, when he happened to catch a ride. It was therefore for the consideration of the jury as to whether or not his former employer, who was interested enough in his going back to work to make inquiry in that behalf upon the defendant's arrival and to agree with him to resume work at a certain monthly wage and board, would have immediately proceeded to try to beat the defendant to death because he mentioned the claim for previous wages; and whether or not the deceased would have agreed to the re-employment of defendant after the latter had placed the claim in the hands of an attorney for collection. The jury was warranted in believing from all the facts and circumstances that the defendant went "back out there to get a settlement" by fair means, if he could, and if not, by force and violence. Such a course of action would not be manslaughter, but murder.
We had heretofore carefully examined and fully considered the record and briefs before rendering our former opinion of affirmance of this conviction, and our decision was reached after a full discussion of the facts and the law at two conferences of the Judges. We have reviewed the same suggestion of error, as to all points reargued and are unable to find any reason for not adhering to the decision heretofore rendered. The suggestion of error is, therefore, overruled.
Suggestion of error overruled. *Page 140