The appellants, Ed Brown, Henry Shields, and Yank Ellington, were convicted of murder in the circuit court of Kemper county and were sentenced to be hanged, and from this conviction and sentence this appeal was prosecuted.
Raymond Stewart lived alone in a small farm house in Kemper county. On Friday, March 30, 1934, neighbors of the said Stewart discovered him lying unconscious in a side room of his house. In this room there was a pile of cotton seed near the body, and there was an open tool chest with blood on it in this room or an adjoining hall. Blood was also sprinkled on certain parts of the wall, and there was a large stick and parts of a lamp chimney and the bowl of a lamp, covered with blood, lying on the floor. Stewart died before a doctor arrived, and upon investigation it was found that his body had been brutally beaten and bruised. There was a severe wound on the shoulder which the doctor testified could have been made with an ordinary axe or a heavy club; his collar bone was broken; his shoulder joint burst in two places; one arm was broken in several places; the skin was off his right cheek; the skull was fractured four or five times and punctured behind one ear; there was a bad cut in front of the left ear and the bones in the top of his head were crushed into small pieces. There was a perceptive odor of kerosene in the room, and a lamp wick with both ends charred and burned. A chisel and a large stick, called a "wagon standard," which were found in the room, were blood-stained. At the time the murderous assault on Mr. Stewart was committed, from which he died on March 30, 1934, the circuit court of Kemper county was in session, and the appellants were *Page 553 indicted for the murder on April 4, 1934, and were placed on trial on April 6, 1934.
At the trial there was testimony to the effect that shortly after the homicide an investigation was made at the home of Henry Shields, one of the appellants, and a jumper with gray hairs and blood on the back of it was found in a bin of clothes, and partially concealed in a woodpile in the yard, there was found an axe with blood on it.
The sheriff of Kemper county was offered as a witness to testify as to confessions made in his presence by each of the appellants on Monday night following the death of the deceased on Friday. When these confessions were first offered in evidence, counsel for the appellants suggested that a preliminary examination as to their competency be conducted in the absence of the jury. Thereupon the jury was excluded, and the witness was fully examined by counsel for the state and the defendants. The witness testified that he assured each of the defendants that he would protect them from harm from outside sources, that no threats of violence were made against them, no force or intimidation used, and no hope or promise of reward or inducements of any kind held out to them; that they were repeatedly admonished to tell only the truth; and that the statements were freely and voluntarily made. The appellants cross-examined this witness but offered no evidence to contradict his testimony that the confessions were free and voluntary. On this cross-examination it was developed that the sheriff had heard rumors that the appellants had been previously whipped and had confessed, and it was further developed that Henry Shields, one of the appellants, was limping when he came into the room where the confession was made, and stated that he could not sit down for the reason that he had been strapped pretty hard. The sheriff further testified that he asked the appellants if they knew that under the law they might be hanged if *Page 554 they were found guilty, and they replied that they knew that fact.
Upon this testimony the trial judge ruled that the confessions were freely and voluntarily made and were admissible, and thereupon the witness testified that each of the appellants first confessed to him separately, and that they repeated the confessions in the presence of each other and in the presence of himself, the sheriff of Lauderdale county, Eugene Stevens, a Meridian minister, and several deputy sheriffs.
With the exception of a dispute between them as to who first entered the room where the deceased was sleeping and who struck the first blow, and some minor details, the statements of the three appellants, as detailed by this witness, were substantially the same. The confession of Henry Shields was substantially as follows: That he met the appellants Brown and Ellington in the afternoon before the killing, and they informed him that they were going to kill Mr. Stewart for the purpose of securing certain money which they claimed he owed them; that each offered him twelve dollars to assist them, and he accepted the proposition; that it was agreed that they would meet at the home of Brown about midnight following, which they did; that they then discussed the proposed killing and agreed upon a plan, and then went to the house of Mr. Stewart; that he and Ellington went to the west end of the house and entered through a door leading directly into the room where Stewart was sleeping, while Brown entered at the back of the house and waited with an axe which he secured from a tool box; that Ellington entered the room first and struck Mr. Stewart the first blow with a stick; that Stewart jumped up and made his way into the hall while they lighted a lamp and followed; that Ellington struck Stewart again in the hall, and in the scuffle broke the lamp chimney; and that Ed Brown then struck him with an axe, knocking him to the floor. He further stated that Ed Brown had the key to a safe in the house, and that after Stewart *Page 555 was knocked down in the hall Brown opened the safe and searched it for money, but found none; that he and Ellington carried Mr. Stewart into the cotton-seed room and placed him on the seed; that Ed Brown then poured the oil from the lamp on the seed around the body and threw the lighted lamp wick down in an effort to burn him and the house, and they then left the premises. Shields denied throughout that he struck the deceased at all.
As detailed by the witness, Brown's statement of what occurred up to the time they entered the house was the same as that of Shields. Brown stated that he secured a foot axe from the tool chest and waited in the hall until Mr. Stewart came out of the bedroom; that Shields then hit him with an axe and he (Brown) hit him with the foot axe and knocked him down; that Shields and Ellington then carried the body into the seed room, and Shields poured the oil on the seed and attempted to set them on fire. He further stated that he threw the foot axe in a cistern or well in the yard, but this axe was not found. Both Brown and Ellington stated that Shields carried an axe to the house and into the deceased's bedroom, and both stated that he struck the deceased with the axe in the hall, while Ellington stated that Shields struck the first blow with the axe when they entered the room where the deceased was sleeping. Ellington denied striking the deceased in the bedroom, but stated that he did strike him one or two blows with a chisel after he got out near the tool chest in the hall. Both Ellington and Shields stated that Brown was a tenant on Mr. Stewart's farm, worked around the house and fed the live stock, and frequently carried a bunch of keys belonging to Mr. Stewart. Their statements covered other details in reference to an exchange of jumpers and incidental matters, which we will not here set forth. The sheriff of Lauderdale county and Eugene Stevens, a minister, also testified as to the confessions of appellants, and their version of the circumstances under which the *Page 556 confessions were made, and the statements of each of the appellants were substantially the same as that of Sheriff Adcock.
With the admission of these confessions the state closed its case, and thereupon each of the appellants took the stand and testified to facts tending to establish an alibi, and also offered their wives and one other person as witnesses to establish the alibi. They admitted that they made the confessions which had been offered in evidence, but testified that prior to the time they confessed to the two sheriffs in the Lauderdale county jail they had been seriously whipped and otherwise mistreated by other parties, and had thereby been induced to confess to these parties, who warned them that they must thereafter continue to tell the same story, and that they made the subsequent confessions on account of fear of further violence. They explained their ability to construct their story, and tell the part each one took, upon the ground that they followed questions and suggestions of the parties who forced the confessions from them. They admitted that Sheriff Adcock and his associates treated them kindly and promised to protect them from harm, and that the sheriff told them they did not have to talk, and that if they made any statement they should tell only the truth about it. Two of them also admitted that during the progress of the trial, and just a short while before they took the witness stand, they had voluntarily told Sheriff Adcock that the confessions they had made to him on the previous Monday night were true.
After the three defendants had each testified, the state requested permission to reopen its case and introduce a finger print expert who had not been available at the time the state's evidence in chief had been presented. Over the objections of appellants the court permitted this witness to testify, but offered the appellants a reasonable time to secure evidence in rebuttal. They offered no such evidence and made no requests to postpone or delay the trial until such evidence could be obtained. *Page 557 This witness testified that he had developed certain finger prints which were on the bowl of the lamp found near the body of the deceased, and had compared them with the appellant Brown's finger prints and they were the same.
In rebuttal three witnesses were offered for the purpose of contradicting the appellants, who had testified that when they made their first statements about the killing, many of the answers given by them were suggested by parties present; and in the course of the examination of these witnesses, it was developed that before the appellants made the first statements they had been whipped. They also testified to various statements made by the appellants when they first confessed, which were inadmissible, but upon motion of the appellants all the testimony of these witnesses were excluded, except that to the effect that they made no sugestions to appellants as to the statements to be made by them, or the answers to be given to questions asked them, and upon the suggestion of counsel for appellants the court directed the jury to disregard all the testimony of these witnesses except that part with reference to suggestions made to the appellants. No other request in reference to the testimony of these witnesses was made of the court.
The principal assignment of error urged by appellants is that the confessions were inadmissible and should have been excluded by the court. As herein previously stated, when the confessions of the appellants were first offered, the court conducted a preliminary examination to determine their competency and admissibility. At this examination the appellants cross-examined the state witness but offered no evidence whatever to contradict the witness or otherwise show that the confessions were not free and voluntary. Upon the evidence offered the court held, and we think correctly, that the confessions were shown to have been freely and voluntarily given. In the introduction of their proof, on the merits, and in *Page 558 the introduction of the state's rebuttal evidence, there was testimony which strongly tended to show that the confessions were made under the influence of fear induced by threats and violence; but no motion was made to exclude the confessions. After the court ruled that the confessions were admissible, it was never thereafter called upon to pass upon their competency, and as held in the case of Loftin v. State, 150 Miss. 228, 116 So. 435, 438, wherein identically the same circumstances and situation were presented, "the court committed no error in not excluding them, in the absence of a request so to do." In the Loftin Case, supra, the court quoted, considered, and approved the rule announced in Ellis v. State, 65 Miss. 44, 3 So. 188, 7 Am. St. Rep. 634, that "after a confession has been admitted by the court, either party has a right to produce before the jury the same evidence which was submitted to the court when it was called upon to decide the question of competency, and all other facts and circumstances relevant to the confession, or affecting its weight or credit as evidence; and if it should be made to appear at this point, or any other, during the progress of the trial, that the confession was made under such circumstances as to render it incompetent as evidence, it should be excluded by the court." But it was expressly held that if a confession has been properly admitted in evidence after a preliminary examination as to its competency, no error is committed by a failure to exclude it, in the absence of a request so to do, although during the later progress of the trial it is made to appear that the confession was made under such circumstances as to render it incompetent as evidence. The Loftin case is applicable and controlling here, and in the absence of error on the part of the lower court in failing to exclude the confessions we cannot reverse upon that point.
The appellants next assign as error the action of the court in permitting the introduction of a finger print *Page 559 expert as a witness after the state had closed its case in chief, and the appellants had begun the introduction of their testimony. The record shows that the testimony of this expert was not available when the state closed its case, and it was admitted with the definite understanding that the appellants would be granted a reasonable time within which to obtain witnesses to meet the testimony to be offered by this witness. The appellants made no request to postpone or continue the trial until evidence bearing upon the finger prints could be obtained, if any were available. The reopening of a case to admit further testimony is a matter that is addressed to the sound discretion of the trial court, and its action in so doing will not be reviewed in the absence of a showing of abuse of that discretion. Baird v. State,146 Miss. 547, 112 So. 705; Morris v. State, 148 Miss. 680,114 So. 750.
The appellants next complain of the testimony of certain rebuttal witnesses which had reference to confessions made to them as a result of alleged whippings administered to the appellants. The court sustained appellant's motion to exclude this testimony and instructed the jury to disregard it. No motion for a new trial was made after the motion to exclude was sustained. The court granted every request made of it in reference to this testimony, and therefore it cannot be held to have committed error.
Appellants next complain that instructions No. 1 and 2 for the state do not correctly define "murder," for the reason that the words "with malice aforethought" are omitted therefrom. Both of these instructions define "murder" as being the killing of a human being, without authority of law, by any means or in any manner, when done with the deliberate design to effect death of the person killed. This definition of murder is in the exact language of the statutory definition found in section *Page 560 985, Code 1930, and is correct. Atkinson v. State, 137 Miss. 42, 101 So. 490.
Appellants next complain of the refusal of two instructions requested by them, Nos. 9 and 10. Instruction No. 9 was a cautionary instruction in reference to the effect of testimony concerning finger prints and dying declarations, and no error was committed in refusing it, first, for the reason that dying declarations were in no way involved, and second, the giving of cautionary instructions is a matter addressed to the discretion of the trial judge, and the refusal of such an instruction is not reversible error. Watkins v. State, 134 Miss. 211, 98 So. 537.
Instruction No. 10, which was refused by the court, was properly refused for the reason that it was a charge on the weight to be given the evidence. There is no merit in any of the other assignments of error.
The judgment of the court below will therefore be affirmed, and Friday, February 8, 1935, is set as the date for the execution of the sentence.
Affirmed.