I concur in the view that the appellant was entitled to the instruction that in no event could the jury convict him of a greater offense than the crime of manslaughter, but I prefer to base my conclusion on the ground that the actual facts in the case did not warrant a conviction of murder, without regard to whether the arrest was legal or illegal.
The proof on behalf of the State disclosed that while the witness, Vaughn, was phoning for an officer to come, and the defendant was being forcibly detained outside of the garment factory office by the deceased, he heard one shot fired and then later four more shots; that upon *Page 185 leaving the phone and going to investigate, he saw the deceased falling; and that when he first saw the deceased after the shooting, the defendant was then nearly 200 yards away, running. On behalf of the defense, the proof disclosed that the deceased was standing guard over the defendant while the witness, Vaughn, went to phone the officers; that the defendant then commenced backing off to make his escape; that the deceased then shot first at him and that the defendant then commenced shooting in return as he fled.
There were no eye-witnesses to the actual shooting. The defendant's story that the deceased shot at him first as he tried to escape is not only reasonable, but is corroborated by the state witness, Vaughn, as to the manner in which the shots were fired and by the fact that the deceased was falling when the witness first saw the defendant some distance away, running. Moreover, the deceased was holding a pistol in his hand for the purpose of preventing an escape when the witness left him and the defendant alone on the outside of the office to go in and use the phone.
An alleged confession as to how the shooting occurred was taken down in shorthand by a local stenographer at the request of the district attorney, in the presence of several persons; and the questions and answers contained in the transcribed and signed statement were placed before the jury by the State in the examination of a Mr. Caldwell, one of the witnesses who was present when the statement was taken. He was asked on cross-examination the following question, "And that covered his statement?," and, he answered, "Yes, sir, entirely."
The signed statement discloses, and the witnesses so testified, that the defendant did not undertake to give his own version of how the shooting occurred but mainly was told what did and did not occur, and merely answered "Yes, sir" and "No, sir." When the stenographer had completed the transcript of her notes, the statement disclosed that the defendant had been asked the question: *Page 186 "At the time that you shot him, you state that he was the first to fire at you?" He answered, "Yes, sir." The statement contained no other question or answer in conflict with that question and answer. However, before it was signed by the defendant, one of the witnesses present says that he discovered an error in it, and the statement was corrected so as to have the defendant saying that he shot first at the deceased. The stenographer, as a witness on the trial did not admit that there was an error committed in transcribing her notes in that particular, and neither did her shorthand notes show that the defendant had said that he shot first at the deceased. Of the several witnesses present, none of the others testified that the stenographer had made such an error.
The State also offered testimony to show that on this same occasion the defendant stated that he had made up his mind to shoot and kill the deceased and get away. But, neither the transcribed statement nor the stenographer's notes disclosed that he made this statement. Only two of the several witnesses present so testified, and one of them was fair enough to admit that he was in error, as shown by the following question and answer: "Now, you testified in your direct examination a few minutes ago, Mr. Caldwell, that this man said he had made up his mind to kill him, and he backed off and killed him, does he state that in that confession?" Answer: "No, sir, he didn't state that. I got mixed up in what I heard from other reports."
It is true, as held in the case of Tyler v. State, 159 Miss. 223,131 So. 417, that the State was not limited to the written confession. It was competent for the State to prove any additional statements not covered by the writing, as well as the same confession made orally at different times, if such were made, but I do not understand that this rule would permit the State to take down and transcribe the questions and answers where the accused has agreed to make a statement, and which purports to cover his entire statement, and to then offer *Page 187 testimony to prove from the memory of witnesses that he made a different statement to that shown by the stenographer's notes and as then reduced to writing and signed. At least, such proof is, in my opinion, too unsubstantial to sustain this verdict.
I am of the opinion that the confession as sought to be established against the accused was contrary to the great weight of the evidence and formed no proper basis for a conviction of murder and the infliction of the death penalty in this case, whether the written part of the confession was formally introduced or not, since the existence of the alleged error in the transcript was not testified to by the several other witnesses present, nor by the stenographer, and was denied by the accused. Then too, the statement as to who fired the first shot, as taken down in shorthand and originally transcribed, was consistent with the physical facts as they transpired at the scene of the shooting, as testified to on the trial by the witnesses for the State, Godfrey and Vaughn, and also by the accused.
For the reasons hereinbefore stated, I do not think that there was any such substantial proof that the killing was done with malice aforethought as would justify upholding a verdict of murder, even if the arrest had been legal. Upon this ground alone, I am content to rest my concurrence in the conclusion reached, and agree that the issue should have been limited to manslaughter.