Opinion
No. 36439.
May 5, 1947. Suggestion of Error Overruled June 2, 1947.
1. HOMICIDE.
In prosecution for murder, conflicts in testimony made an issue for jury.
2. CRIMINAL LAW.
Proof of a crime distinct from the one charged is inadmissible.
3. CRIMINAL LAW.
In prosecution for murder of deceased, evidence that immediately after shooting deceased, the defendant also shot deceased's wife, though not fatally, was properly admitted where proof showed animosity between defendant on the one hand and the deceased and his wife on the other.
4. CRIMINAL LAW.
The sequence in which offenses are committed is immaterial in determining whether in prosecution for one offense proof of the other offense is admissible, since it is the integration of the two offenses of like purpose in response to similar provocation that makes it impractical to draw a line at any particular act.
5. HOMICIDE.
Evidence sustained conviction of manslaughter.
APPEAL from the circuit court of Alcorn county. HON. THOS. H. JOHNSTON, J.
Ely B. Mitchell, of Corinth, for appellant.
Generally, evidence of other crimes than the one for which accused is being tried is inadmissible.
Willoughby v. State, 154 Miss. 653, 122 So. 757, 63 A.L.R. 1319; Dabney v. State, 82 Miss. 252, 33 So. 973; Baygents v. State, 144 Miss. 442, 110 So. 114; McLin v. State, 150 Miss. 159 116 So. 533; Floyd v. State, 166 Miss. 15, 148 So. 226; Gunter v. State, 180 Miss. 769, 178 So. 472; Kehoe v. State, 194 Miss. 339, 12 So.2d 149; Bangren v. State, 198 Miss. 359, 22 So.2d 360; Coker v. State, 200 Miss. 535, 27 So.2d 898; Augustine v. State, 201 Miss. 277, 28 So.2d 243, 246; Shaffner v. Commonwealth, 13 Am. Rep. 649; State v. Gossett (S.C.), 16 A L.R. 1299; Code of 1942, Secs. 2011, 2013, 2215, 2218; 8 R.C.L. 67, Sec. 20, p. 198, Sec. 194; 10 R.C.L. 939, Sec. 107-109; 14 Am. Jur. 853, Secs. 129, 130; 20 Am. Jur. 287, Sec. 309.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
The general rule as adopted by our own Court is that evidence of other crimes than the one for which the accused is being tried is inadmissible. However, there are exceptions to this rule. To make one criminal act evidence of another, a connection between them must have existed in the mind of the actor, linking them together for some purpose he intended to accomplish; or it must be necessary to identify the person of the actor by a connection which shows that he who committed the one must have done the other.
Wiloughby v. State, 154 Miss. 653, 122 So. 757, 63 A.L.R. 1319; Dabney v. State, 82 Miss. 252, 33 So. 973; Holmes v. State, 151 Miss. 702, 118 So. 431; Guest v. State, 158 Miss. 588, 130 So. 908; Hathaway v. State, (Miss.), 13 So.2d 819; Russell v. State, 185 Miss. 464, 185 So. 90; Aldridge v. State, 180 Miss. 452, 177 So. 765.
See also Fisher v. State, 145 Miss. 116, 110 So. 361; Floyd v. State, 166 Miss. 15, 148 So. 226; Garrett v. State, 187 Miss. 441, 193 So. 452; Code of 1942, p. 737, Sec. 708.
Appellant was charged with murder and convicted of manslaughter. The assignments of error are comprised within the contention that evidence was shown of a separate crime from that alleged.
The testimony relevant to our discussion is that appellant shot deceased with a shotgun which was thrust through a screen door. Immediately thereafter he turned and shot deceased's wife, though not fatally. In both instances there was testimony to establish justification. Since we find that the conflicts in testimony made an issue for the jury, we shall not further comment upon the facts.
It is elemental that proof of a crime, distinct from the one charged, will not be allowed. Augustine v. State, 201 Miss. 277, 28 So.2d 243. We examine, therefore, only whether the shooting of the wife was a disconnected and irrevelant act. The record reveals animosity between appellant on the one hand, and the deceased and his wife on the other. It was manifested in verbal skirmishes in which barbed and brutish epithets were hurled. The victim's wife counseled summary dispatch of appellant. They shared a single roof, compelling a propinquity which generated friction and overheated temper.
The two crimes were inseparable components of the completed incident. Had appellant been put to trial for shooting the wife, the killing of the husband would have been an inevitable and relevant disclosure of the res gestae. The sequence is not material; it is their integration into the incident, interwoven with similar provocation and purpose, which makes it impractical to draw a curtain at the end of any particular act behind which the jury may not peer. Mackie v. State, 138 Miss. 740, 103 So. 379; Wilson v. State, 201 Miss. 627, 30 So.2d 62.
The error assigned with reference to testimony regarding blood stains upon the floor and screen door serves to illustrate the basis for the foregoing conclusions. It is contended that since both spouses were wounded, it was error to draw the incident of the latter shooting into view by injecting doubt as to whose blood had caused the stains. It is the commingling of the blood of the two stricken almost simultaneously, which, defying identification, symbolizes the fusing of all the incidents of the tragic drama into an integrated entity.
The jury were warranted in concluding that while the homicide was not premeditated murder, the act of appellant, who at most was threatened only with a missile in the hands of deceased, in repelling this threat with a shotgun, used unnecessary force and unwarrantably ignored the simple and saving expedient of closing the door through the crack of which he had thrust the gun, and behind which he could have sought refuge and maintained security for all concerned without losing face.
Affirmed.