Wiltcher v. State

1. Criminal Law. Homicide. Dying declarations. Admissibility. Conduct of judge. Coercion of jury. The jury, when it retires to consider its verdict, should be left absolutely free from any and all outside influences so that it may consider the case submitted to them with perfect freedom. 2. Same. Where the jury retired to consider of their verdict between seven thirty and eight o’clock Friday evening and on the following ’Saturday evening sent a note to the judge, through the bailiff,, “asking permission to take a walk on Sunday morning and evening,” and saying that they were hopelessly hung, and the judge sent them word by the bailiff that “he would receive a verdict, if it was. brought in by nine o’clock, but if not, he was going to Hazlehurst and would not be back until Monday morning,” and that he would not receive a verdict on Sunday, and further gave the jury permission to take a walk on Sunday morning and evening; and the jury reached a verdict about nine o’clock Saturday night. Held, that the message of the judge was not an improper communication to the jury and had no tendency to coerce them into a verdict. 3. Dxing Declaration. Admissibility. Homicide. Where the dying man when told a few minutes after he had been shot that a doctor had been sent for said, “the doctor can’t dome any good, I won’t be here long,” and then made a statement as to how he was killed, which was in substance the same as the statement he made to another witness some twelve hours later; and the testimony showed that the dying man grew weaker and weaker until he died and never at any time expressed any hope of recovery. Held, that the admission in evidence of the last declaration was not error. 4. Homicide. Admission of evidence. Harmless error. In a murder case, the admission of evidence that decedent’s wife, shown to have been a conspirator with accused, had told witness, at a time before the conspiracy was formed, that she, the wife, was going to have her husband killed, and testimony of a witness that, while she and another, conspirator with accused, were going to decedent’s house the night that he was killed, such conspirator stated to witness, some ten or fifteen minutes before the fatal shot was fired, and when the conspirator was not more than ten or twenty yards from the spot where decedent was killed, that he, the conspirator, was going to kill decedent, and that, if he did-not, accused and another would kill such conspirator that night or early the next morning, though erroneous, was harmless error, where the indictment charging accused with murder was legally returned, and he -was tried by an impartial jury, and the evidence established his guilt, inasmuch as the improper evidence did not deprive accused of a substantial right, and could not possibly have-changed the verdict.

Appeal from the circuit court of Yazoo county. Hon. D. M. Miller, Judge. Lee "Wiltcher was convicted of murder and appeals. The facts are fully stated in the opinion of the court. It was manifest error, and highly prejudicial to appellant to permit the witness, Bettie Price, to testify over objection that one month before the murder of deceased, that Mrs.- Wiltcher told her that she was going to have her husband killed, and failing in this, she would kill him herself. The court will notice from the transcript that objection was repeatedly made to this testimony because it appeared from the witness’ own statement that it was three weeks or a month before the murder. The only evidence connecting appellant with any conspiracy, and in fact the only reference to that effect, was the testimony of Will Price, who said that the only times Lee Wiltcher ever offered to have his brother killed was on Saturday preceding the Saturday night of the murder (one week exactly) and on Friday, the day preceding the homicide, and of Tom Brokeman, that appellant talked to him on Wednesday before the killing, yet the court permitted this witness to detail conversations she had with Mrs. Wiltcher, weeks before there is any claim even,.by the state, that appellant was her co-conspirator. The effect was to get to the jury conversations, showing Mrs. Wiltcher ’s purpose and desire and reason to have her husband killed, out of the hearing of appellant, and without his knowledge. The prosecuting attorney realizing the incompetence of the declaration, stated to the court that he would show that the old lady was off on the dates,” a promise he did not even offer to keep. The court, realizing that the evidence was improper, as the record then stood, said: “The court will consider the matter and rule later. ’ ’ Immediately, the record shows, the jury was brought back, and all this incompetent testimony given before them, the court finally being generous enough to give appellant the benefit of an exception. We can conceive of no testimony, in a case like this, that could be more damaging. That this testimony was incompetent under all the authorities is too plain. “Acts and declarations done and made before the formation of the conspiracy are not ■admissible against the co-conspirator unless brought home to them, or made in their presence.” Ency. of Evidence, vol. 3, p. 430; 34 N. W. 720; 9 So. Rep. 847; 34 Am. Rep. 746; 61 S. W. 735; 54 S. W. 211; 94 111. 299;, 12 N. E. 865. In order to make evidence admissible on the theory that, there was a conspiracy between the defendant and others, jointly indicted, it is necessary that it should be shown that the conspiracy was pending at the time of the statement, if made out of the presence of the co-conspirator.. Langford v. State, 30 So. Rep. 503. The identical question is decided, and held to be rever-. sible error in the case of Gillum v. State, 62 Miss. 548. During the examination of Rosa Moore, or Rosa Price, the court, over the objection of the defendant’s attorneys, permitted her to testify as follows: “Q. What did he say, if anything, about what he was going up there for? (meaning Will Price). “A. He told me to go up there with him, that he' wanted to borrow some money from Mr. John Wiltcher, and after we got nearly to the house, he said, ‘I am going-to kill Mr. Wiltcher,’ and I begged him not to and said, ‘I would not do it,’ and he said, ‘If I don’t kill him, cousin Rosa, Mr. Lee and Miss Lula are going to kill me to-night or early in the morning.’ He goes on and I steps in the shop and sticks my fingers in my ears to keep from hearing it. ’ ’ This conversation between the witness and Will Price, as shown by her testimony, occurred ten or fifteen minutes before the shooting. As stated in the argument of the facts in this brief, this is the only corroboration, or the only effort at corroboration, of the witness Will Price to the effect that Lee Wiltcher was present on the night of the homicide. The damaging effect of this testimony is manifest. The average juror, strange to say, regards a statement, whether self serving or not, out of court, corroborative of the testimony of the witness upon the stand, as strong testimony. The court permitted this testimony on the theory that it was competent as the act or declaration of a co-conspirator, the alleged conspiracy having been shown by the testimony of Will Price. My view of this testimony is that it is not the. declaration of a co-conspirator “in furtherance of and in execution of the unlawful design.” Unless it was such declaration, it was clearly incompetent because made in the absence of the appellant, and in no way ratified or approved by him. Our court, in this case of Gillum v. The State, 62 Miss. 547, uses the following language: “After a conspiracy has been established by evidence aliunde, the declaration and acts of each conspirator in the furtherance of the common design are admissible against all, but it is necessary that such acts and declarations- be shown to have been made or done in the prosecution of the common purpose. They are admissible as parts of the res gestae, and declarations or admissions which are not themselves acts, and do not illustrate or interpret contemporaneous acts, do not partake of the nature of the res gestae, and are inadmissible against any others save those by whom they are made. 1 Philips on Evidence, 698. The threats and declarations of Thomas and Harry Grillum, which were proved against the defendant, were none of them made while the parties were engaged in any attempt to kill or injure the deceased.” It could not seriously be considered that this consideration by Will Price of his reason for the assasination, in any way illustrated or interpreted any contemporaneous act connected with the execution of the conspiracy. Of course, if at the same time he was upon the scene and John Wiltcher was being called out of his house, he had made any statement, this, of course, would have been part of the res gestae of the crime contemporaneous with its execution, and illustrative of his act in killing the deceased. But for him to state fifteen minutes before anything is done in execution of the alleged unlawful design, in a confession, was no more competent than if he had confessed it two days before, because it did not illustrate or interpret any contemporaneous act in furtherance of any in execution of the unlawful design. In the case of Metcalf v. Conner, 12 Am. Dec. 340, this very question is discussed, the court there saying: “Any declarations by one of the party at the time of the committing the unlawful act, are no doubt not only •evidence against himself, but as being a part of the resgestae and tending to determine the quality of the act, are also evidence against the rest of the party, who are equally as responsible as if they had themselves done the ■act. But what one of the party may have been heard to say at any other time as to the share which others had in the transaction, or as to the object of the conspiracy, cannot be admitted as evidence to affect them, for it has been solemnly decided that a confession is evidence only against the person himself who makes the confession, and not against others.” In the case of the State v. Tice, 48 Pac. Bep. 367, the court admitted proof of what one of the alleged conspirators not on trial narrated to the witness concerning what the witness designated he “supposed was the history of this instrument” (it being the trial for the forging of a •will). The court held that it was reversible error, and ■said, “It was a subsequent narration of the transaction, and could not be considered as a part of the res gestae or as declarations concurrent in time with the commission of the unlawful act. ’ ’ Citing with approval the case of Metcalf v. Conner. The court held that this was error. ‘‘ On the separate trial of one charged with aiding another in a murder, the acts done by that other and conversations had with him in the absence of defendant are incompetent as evidence of the defendant’s guilt.” This was a trial upon the charge of murder where the appellant and his uncle were charged to have entered into a conspiracy to cause the death of a party. Certain statements of the co-conspirator not on trial in the absence of the defendant, and which were merely narrative of the purpose or intention of the co-conspirator relative to the death of the deceased, were admitted in evidence. The court discussed the question here involved and reversed this case because of the admission of this evidence, holding that it was not in furtherance of or in execution of the unlawful design at the time the incriminating statements were made, but were in the nature of confessions or narrations. Osmun v. Winters, 46 Pac. Eep. 780;. Sheppard v. Yocum, 10 Ore. 417; see, also, State v. Fredericks, 85 Mo. 145; State v. Duncan, 64 Miss. 263. -Philips on Evidence, vol. 1, par. 205, lays down a rule as follows: “Where several persons are proved to combine together for any illegal purpose, any act done by one of the party in pursuance of the original concerted plan and with reference to the common object is in contemplation of the law, the act of the whole party. It follows therefore that any writings or verbal expressions, being acts themselves or illustrating and explaining other acts, and so being part of the res ges$ae, and which are brought home to one conspirator, are evidence against the other conspirators, provided it sufficiently appears-that they were used in furtherance of the common design.” And the author afterwards, at page 208 of the same volume, adds: “But where words or writings are not acts in themselves, nor part of the res gestae, but a mere relator’s narration of some part of the transaction, or as to the share which other persons have had in the execution of the common design, the evidence is not within the principle above mentioned. It altogether depends upon the credit of the narrator who was not before the court, and it could not therefore be received. ’ ’ The case of Sample v. The People, 13 N. E. 536, decided by the supreme court of Illinois in 1887, is directly in point on the proposition here involved. The action of the court in admitting the alleged dying declaration of John Wiltcher, through the testimony of Dr. Frissell, was so manifestly incompetent and so clearly improper, that we hardly know how to argue the proposition. This court has held so many times that a dying declaration is not competent unless there is clearly made preliminary proof that when the declarant made it, he made it with the solemn belief in his mind that he was going to die, and that this condition of his mind takes the place of the solemnity of an oath. Of course this state of mind by the declarant can only be shown by his conduct, by his expressions of belief of impending death, or by suggestion to him by others that he was going to die, and the belief by him, as evidenced by word or deed, of his belief of that fact. The position of this court upon the question of the competency of the dying declaration is stated in the following decisions: Oivens v. State, 59 Miss. 547; Ellis v. State, 65 Miss. 48; Helm v. State, 67 Miss. 562; Simmons v. State, 61 Miss. 243; Bell v. State, 72 Miss. 510; Lipscomb v. State, 75 Miss. 559. The fourteenth assignment of error we regard as the crowning injustice done this appellant on his trial for his life, and that too directly at the hands of the trial judge, who should have held evenly balanced the scales of justice and left the jury free and untrammeled in its deliberation. Testimony taken upon the motion for a new trial shows that the jury in this case retired about seven thirty o’clock on Friday evening, and that the jury stood, after a number of hours of deliberation, four for acquittal and eight for conviction; that the jury had sent a note to the trial judge, sometime on Saturday evening late, in which they stated to the trial judge that they were hopelessly hung and could not agree upon a verdict. This note was given to the judge by one of the sworn bailiffs, Mr. Ferguson. Upon receipts of this note an astonishing and shocking thing occurred, as shown by the following question and answer: “A. What statement did Judge Miller send back to the jury room?” “A. He said if they reached a verdict before nine o’clock, he would receive it. He said he would not receive a verdict on Sunday. He said he would receive a verdict, if it was brought in by nine o’clock, but if not, he would go on to Hazlehurst and would not be back till Monday morning. ’ ’ From this it appears that a jury well divided and hopelessly hung on the question of the guilt or innocence of a man being tried for his life, who appealed to the trial judge to discharge them- or permit them to take exercise on the next day, being Sunday, instead of discharging this jury, the trial judge sent “back to the jury room” the declaration that if they reached a verdict by nine o ’clock that night, he would receive it, otherwise, he would keep them there until the next week, Monday. The transcript shows that promptly, or practically, at nine o’clock, this jury which had reported that it was hopelessly hung, four of them being for acquittal, find a verdict, and that a compromise verdict upon life imprisonment. Can it possibly be said that this young man, under such circumstances as these received a fair trial? The state does not attempt to clear up the question, of whether or not the jury returned the verdict because of the message sent by the trial judge,' but elects to leave the record undisputed that the jury, at the hour fixed by the trial judge, brought in its verdict as a result of this coercion. This court has held that where such influence as this is brought to bear upon the jury, that it is presumed that the defendant was prejudiced and that this influenced improperly the jury. This court in the very late case of Shorn v. The State, 79 Miss. 577, in a case not so strong as the one at bar, speaking through Justice Calhoun in strong terms condemned an incident something like the one presented here, and reversed the case. Concluding, we submit to the court that the transcript in this case shows that this appellant went before the jury burdened with the serious charge of murder, and positively staggering under the load of the accusation that he had assassinated his own brother in order that he might marry that brother’s wife, so that any serious error of law must of necessity be regarded as reversible. The facts, when sifted, and the incompetent evidence eliminated, show that the question of the guilt of this appellant is a close one, particularly when the court will recall the perjury that the defense has exposed in the trial of this case, coupled with the feeling against this appellant as shown by the necessity of a change of venue, and the evidence in the transcript shows that an armed mob of thirty on Sunday morning visited the very witnesses who have appeared against this appellant in his trial. Regardless of this, however, even if his guilt is believed to exist by this court, and to appear from the evidence, it cannot he questioned, hut that he has been denied rights guaranteed to him by the laws of this state, and injustices have been done him in his trial which have clearly operated against him. If the common enemy of man was on trial under our laws for his action in regard to “The fruit .... Of that forbidden tree, whose mortal taste Brought death into the world, and all our woe, With loss of Eden,” he should he tried by the rules and customs of our courts. He should not he made the victim of unfairness, and coercion. It is said that it was manifest error, highly predudicial to the defendant, to permit the witness, Betty Price, to testify, over the objection of appellant, that a month before the murder of deceased Mrs. Wiltcher told her that she was going to have her husband killed, and failing in this would kill him herself. It is unfortunate that this evidence was admitted without first determining the time when this statement was made by Mrs. Wiltcher to the witness Betty Price. The record does not show, I think, as is stated by counsel for appellant, that this statement was made hy Mrs. Wiltcher to the witness, Betty Price. The record does not show, I think, as is stated by counsel for appellant, that this statement was made one month before the murder. So far as the time when the statement was made is concerned, I have no comment to make, but simply state the facts as shown by the record, as correctly as I can, for the information of the court. It is true, as is stated by counsel for appellant, that the statement made by one conspirator before the conspiracy is formed, should not bind his co-conspirators, and this rule has a sound basis. It seems to me, however, that this testimony of Mrs. Wiltcher’s statement to the witness might very well be held competent as showing the state of Mrs. Wiltcher’s mind, as one of the circumstances tending to show that a conspiracy was formed. The theory of the state was that by reason of his criminal intimacy with deceased’s wife, Mrs. Lulu Wiltcher, defendant had a motive for the murder of the •deceased; and, further, the theory was that by reason ■of that same criminal intimacy, Mrs. Lulu Wiltcher had a motive for the murder of her husband; and, further, that both having the same motive, and the same desire that John Wiltcher should be put out of the way, they ■conspired together to have him killed. A conspiracy between the defendant and Mrs. Lulu Wiltcher could not be formed without a motive and desire on the part of Mrs. Lulu Wiltcher to have her husband put to death. In the condition of her mind, then, any motive which she might have had to murder her husband was certainly, so far as the logic of the matter is concerned, competent to he proven as one of the circumstances tending to establish the conspiracy. And, since she and the defendant had the same motive to murder her husband, and the same desire for his death, according to the theory of the state, it is more probable that if she entered into a conspiracy at all to murder her husband, it would he with the defendant rather than with some one else having no such motive. The statement, if made before the conspiracy was formed, was inadmissible as proof of a circumstance tending to prove that the conspiracy resulted in the death of her husband, hut evidence may he competent for one purpose and incompetent for another. It is admissible, if it is competent for any purpose. Would not proof of the declaration by Mrs. Wiltcher be admissible as a circumstance tending to establish the conspiracy? Blain v. State, 33 Tex. Crim. 236, 26 S. W. 63; United States v. Logan, 45 Fed. 872. The distinction is between a statement made by one of the conspirators before the conspiracy is formed, offered to prove the commission of the crime as a result of a conspiracy; and offered as a circumstance tending to prove the conspiracy itself, and not a crime growing out of the conspiracy. It.is argued by counsel for appellant that it was error to permit Eosa Price, or Eosa Moore, to testify, over objection, that when she and Will Price were going to John Wiltcher’s house the night he was killed, Will Price said to her when they arrived at the shop: “I am going to kill Mr. Wiltcher,” and “If I do not kill him, Cousin Eosa, Mr. Lee and Miss Lulu are going to kill me to-night or early in the morning.’.’ Counsel say: “This conversation between the witness and Will Price, as shown by her testimony, occurred ten or fifteen minutes before the shooting. ’ ’ The shop where she stopped was fifteen or twenty yards from the front gate at John Wiltcher’s house, and she did say that the statement of Will Price, to which she testified, was made about ten or fifteen minutes before the gun fired. Counsel for appellant say that this declaration was incompetent because it was not made “in furtherance of an execution of an unlawful design.”' They argue, further, that it was no-part of the res gestae of the conspiracy. Bes gestae is such a vague and indefinite term and signifies such a variety of unrelated doctrines, that I do. not think we can obtain any enlightenment by considering it in that view. 3 Wigmore on Evidence, secs. 1795, 1796, 1797. It is argued that it was error to admit the dying-declaration John Wiltcher made to Dr. Frisell. This statement was made after the declaration made to Will Henderson. Henderson arrived at John Wiltcher’s house and saw him about ten minutes after he heard the gun fire, and Dr. Frisell did not get there until three o ’clock A. M., and left about nine A. M. The dying man stated to Henderson after Henderson told him that he had telephoned for Dr. Frisell: “The doctor can’t do me any good; I won’t be here long,” and then made a statement to Henderson as to how he was killed. He did not die until about eleven o’clock the next day. If he knew when." Henderson got there that he was dying, then it certainly is not likely that he had any reason to believe otherwise when he made the statement to Dr. Frisell. The last assignment of error argued by counsel for appellant is the action of the court in sending a message to the jury, after they had retired to consider of their verdict, that if they reached a verdict by nine o’clock that night he would receive it, but otherwise he would not, but go to Hazlehurst and would not be back until Monday morning. The burden of proof upon this allegation made upon the motion for a new trial was upon defendant below. The only proof taken to sustain the motion was the testimony of Mr. Ferguson, who was one of the bailiffs in charge of the jury.' Omitting the preliminary questions and answers, his testimony was that the jury brought in a verdict “in the neighborhood of nine o’clock Saturday night,” and that he reported it to Col. Harding, but that Judge Miller had gone home to Hazlehurst. I think all the Mississippi authorities upon this question were cited in the briefs filed in the case of Tolly May v. State, which case was argued on the 2nd or 3rd instant. See Alexander v. State, 22 So. (Miss.) 871; Polk v. Jacobs, 26 Miss, 121-134; Vicksburg Bank v. Moss, 64 Miss. 644. In Show v. State, 79 Miss. 577, the court gave as a reason for holding that such an error was fatal, “there is no evidence that the misconduct of the sheriff worked no injury.” It appears from the record in the case at bar that before the judge sent the message to the jury they were in exactly the same frame of mind, with precisely the same thought they would remain locked up until Monday, which it was claimed it was error for the judge to induce by the message.