Brown v. State

Ca-liioon, J.,

delivered the opinion of the court.

We said, when this case was before us on a former appeal (85 Miss., 511; 37 South. Rep., 957), and we repeat again: “The record in this case makes it perfectly plain that the justice of the case required, after the state had been permitted to prove that such difficulty had occurred, that the defendant should be allowed to show the details of the difficulty in order to demonstrate who was the aggressor in the difficulty resulting in the killing.” It is true that on the trial, the proceedings of which are presented in the present record, the state did not itself prove that the previous difficulty had occurred; but the defendant cannot by such tactics bo deprived of his legal rights. The testimony as to the previous recent difficulty between the appellant and the deceased was not made competent alone by the fact that the state had shown affirmatively the fact of the difficulty, but by reason of that principle of law, well settled in this state, that .wherever there is doubt, confusion, dispute or conflict as to the origin of the difficulty, or as to who was the aggressorin the difficulty which resulted in the death, and when such fact is the pivotal one in the case, testimony of uncommunicated threats, and the nature and character of previous difficulties, wantonly provoked by the deceased, is always admissible, provided the testimony shows some overt act on the part of the deceased at the time of the fatal encounter. As said by this court in the Guice case, 60 Miss., 723: “It is settled law in this state that proof such as was here offered (i. e., of previous difficulties between appellant and deceased in which deceased had. been the aggressor) is always admissible in evidence) where anything that can fairly be construed as an overt act towards the immediate commission of a dangerous assault can be shown to have been done by the person slain, and that if there by even a doubt as to whether such act was done, evidence such as was here offered should be received.” See, also, Holly’s Case, 55 Miss., 424; Kendrick’s Case, 55 Miss., 436; Spivy’s Case, 58 Miss., 862; Newcomb’s Case, 37 Miss., 400; Johnson’s Case, 66 Miss., 189 (s.c., 5 South. Rep., 95). This is settled‘law in this state, and we do not understand how the trial court could have erred in following the plain statement made in the opinion upon the former trial. We would reverse the case upon this ground alone, even if it were the sole error in the record. Courts should not attempt to whittle away the rights of defendants upon trial for their lives. Every ruling should resolve any doubt in favor of the accused.

But this is by no means the only error in the present record. It was error in the court to attempt to control the counsel for appellant in the order in which he should introduce his testimony. Nor was it fair to the appellant that, upon the cross-examination of the most important witness for the state, counsel for the defendant should have been called upon to disclose in advance the purpose for which he desired to prove the whereabouts of the two negro women — Selina Harvey and Bertha Sing — just before the homicide. The right of cross-examination is not to be limited by the trial judge. Nor can it be conditioned upon counsel advising the court, opposing counsel and the adverse witness, in advance, his intention or the end sought to be arrived at by the cross-examination. It is common knowledge among practitioners, that the truth can often be wrung from the lips of a corrupt or unfriendly witness only by concealing the real object of the interrogatory.

It was error for the court to refuse to permit the defendant’s counsel to prove the whereabouts at the time of the homicide of the negro women about whom and at whose house the previous difficulty between the deceased and appellant was alleged to have occurred only a short time before the killing. This testimony, showing their presence at the negro dance hall where the killing occurred, taken in connection with the previous difficulty occurring at their house, should have been submitted to the consideration of the jury.

So, also, it was error in the trial court to restrict the defendant in proving, or to abridge his right to prove, the conditions of turbulence, violence and rioting -in the town where the killing occurred immediately after the homicide. If admissible for no other purpose, it was clearly so at least to show the reason wffiich might reasonably have induced the defendant to have sought safety in flight. Of course the conduct of the mob upon the night of the homicide, so far as relates to their acts towards others, was not in all its details admissible; but it was clearly competent for the defendant to show the intense excitement existing at the time, and from this it might well be that the jury would reasonably have attributed his flight to a cause other than Lis guilt. It is the duty of this court to see that no man shall suffer the extreme penalty of the law.unless the record plainly shows that he has had a perfectly fair and impartial trial and been convicted according to due form of law; and this duty we shall unshrinkingly discharge.

Reversed and remanded.