
    Earl DANIELS v. STATE of Mississippi.
    No. 49271.
    Supreme Court of Mississippi.
    Jan. 26, 1977.
    
      Sullivan, Smith, Hunt & Vickery, Charles L. Sullivan, Luckett, Luckett, Luckett & Thompson, Walter W. Thompson, Clarks-dale, Andrew Baker, Charleston, for appellant.
    A. F. Summer, Atty. Gen., by Ben H. Walley and Karen Gilfoy, Asst. Attys. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.
   ROBERTSON, Justice, for the Court:

The Petition for Rehearing filed on behalf of appellant, Earl Daniels, is granted, and the opinion affirming the judgment against defendant Daniels, along with the two dissenting opinions, are withdrawn and the following opinion is substituted therefor:

Earl Daniels was indicted by the grand jury of the Circuit Court of Quitman County for the murder of Claude Jones on September 6, 1974. After a full trial, the jury returned a verdict of manslaughter, and the court sentenced Daniels to serve a term of ten years in the state penitentiary. Daniels appeals from the conviction and sentence. We reverse and remand for a new trial.

Prior to September 6, 1974, the date of the incident hereinafter related, defendant had rented a 160-acre tract of land from Mrs. Mable Gardner. Mrs. Gardner lived on the property in a house located about 250 feet east of a gravel road that runs north and south. Her house was reached by means of a gravel driveway. The defendant lived on a gravel road 428 feet north of the driveway leading to Mrs. Gardner’s home.

Prior to the date in question, Mrs. Gardner informed Daniels that she wanted to rent the farm on a cash basis rather than on a percentage basis. In the summer of 1974, she showed the place to prospective renters. On the morning of September 6, 1974, Daniels learned that Mrs. Gardner had leased the tract of land, for the coming year, to one Preston Bennett. Defendant went to see Mrs. Gardner and was angry that she had rented the land to someone else. He understood that Jones had advised Mrs. Gardner in connection with the Bennett lease, and stated to Mrs. Gardner at about 11:45 a.m.:

“That old sorry so and so down there has meddled in my business, and I’m going to get him if that’s the last thing I ever do.”

About 12:15 p.m., Daniels telephoned the Claude Jones residence. Jones’ wife answered the telephone and listened to the conversation on an extension while her husband talked to the defendant. Defendant told Jones, “I’m going to kill you if you cross me,” and then hung up.

Shortly before one o’clock, as Constable William B. Smith, defendant, and defendant’s brother, Boney, were talking around the dinner table, according to Smith, defendant said:

“A. Okay, he said, ‘Now, she better not cut that water off, because — ’ You know his water was supplied from her well. Earl says, ‘I’ll put a stick of dynamite in my line’, which if he blows up his water, it blows up hers too.”

About 2:30 p.m., Jones went to see Ben Caldwell, a former county prosecuting attorney, told him about Daniels’ threat, and sought his advice as to whether defendant should be placed under a peace bond. Jones then went to see Sheriff L. Q. Brunt and reported the threat to him. Both Caldwell and Brunt were allowed to testify as to their conversations with Jones, including the purported threats made by Daniels against Jones.

About 3:15 p.m., Jones was talking to Mrs. Gardner in her yard when Daniels drove up to a shed which he used in connection with feeding his cattle. Daniels looked in the direction of Mrs. Gardner and Jones for a few minutes, then left, and went back to his home without feeding his cattle.

Daniels testified that he did return to his home, prepared three steaks, put them on the outdoor grill to cook, told his son, Robert, to look after the steaks while he went to feed the cattle, and then started back to the cattle shed.

Mrs. Gardner testified that she saw Daniels driving south toward her driveway at the same time that Jones was driving out of her driveway toward the north-south gravel road. She saw Jones speed up and turn south on the gravel road in the direction of his home. Daniels followed Jones’ car past Mrs. Gardner’s driveway, and, according to Mrs. Gardner, defendant “whipped around him and cut in on him and hit Mr. Jones’ car.”

Daniels disputes Mrs. Gardner’s version. He testified that just before he reached Mrs. Gardner’s driveway this happened:

“But, I didn’t even see the car until I got to this — you know where — just before I made my turn, and just as I got to this, well, here he comes at me, and he was, he was traveling at a high speed. So, I just come right on down the road here, and he come, come out of here and stopped.
“Q. All right, sir, now, as he came up here, you, instead of turning in, you went on down this way?
“A. Yes, sir.
“Q. Did you stop down that road, sir?
“A. Yes, sir.
“Q. At the time you stopped your vehicle, was the vehicle of Mr. Jones behind you or in front of you or to the side of you?
“A. It was behind me.
“Q. At that point, Hook, had there been any impact or contact between your vehicle at that time and the Jones’ vehicle?
“A. No, sir.
“Q. What happened after you stopped, and then you saw the car of Mr. Jones stopped back behind you?
“A. He got out of his car with his pistol.
“Q. Did you say or do anything?
“A. I begged him not to shoot me.
“Q. Can you tell us what you said if you remember?
“A. I don’t remember exactly, except I know I said, ‘Mr. Jones, don’t do that’, or ‘Don’t you shoot me’.
“Q. What were you doing then, were you getting out of your truck or sitting in your truck, or what were you doing?
“A. Well, I could have had the door open, or something, I don’t know at just at that particular time.
“Q. What do you remember after that?
“A. Nothing.”

The physical facts indicate that Jones’ car stopped at a point 128 feet south of the Gardner driveway, and defendant’s pickup truck, a short distance south of the Jones car. Jones’ pistol was a .32 caliber Colt automatic holding nine cartridges. Eight .32-caliber cartridge hulls were found in the roadway between the front of Jones’ car and the rear of Daniels’ pickup truck, and one .32-caliber cartridge hull was found in the bed of the defendant’s pickup truck. It is apparent that Jones fired first and emptied his .32-caliber automatic. Two bullets fired by Jones struck the defendant. One entered the back of Daniels’ left leg and exited on the front of his leg; the other entered his stomach to the right and somewhat higher than his umbilicus.

Jones’ body was found 29V2 feet south of the place where defendant’s truck had stopped. Jones had been shot one time, the bullet entering the right armpit and exiting from the left armpit. A .25-caliber automatic pistol was found in Daniels’ truck with three live rounds still in it. Three .25-caliber hulls were found on the ground near the passenger’s side of defendant’s pickup truck. Three bullet holes were found in the interior of the door on the driver’s side of defendant’s truck; one bullet had exited from the exterior side of the door.

Robert Daniels, defendant’s 16-year-old son, testified that he looked up the road when he heard the shooting and saw his father shut the door to the truck and back up toward Mrs. Gardner’s driveway. He then stated:

“A. When he backed up, he scraped the front, or he scraped some part of the car, I remember it that, I don’t know what part it was, but it shook a little bit and uh—
“Q. —the car shook?
“A. Yes, sir, and then he backed into the driveway.
“Q. Which driveway was that?
“A. The one that goes out to Mrs. Gardner’s house.
“Q. And, then what did he do?
“A. Just came straight home.”

The ambulance attendants found defendant lying down in his front yard and took him to the hospital where he was immediately treated for his wounds. He remained in the hospital about 10 days.

Dr. Rubisoff, who received and treated Daniels at the hospital, testified:

“Q. Based on your clinical observation, did I understand you to say to the jury that the man didn’t know why he was at the hospital?
“A. Well, I can’t give you his exact words at this time, but my impression and my best recollection, provided I don’t have amnesia, is that the patient was sort of in a funk, he was sort of dazed. He wasn’t in gross — by that time he was not in gross physical shock, in other words, he had a fairly good blood pressure, pulse and so forth, but he looked rather confused, and I chose not to give him any details, . . . .”

Appellant admits that a jury issue was created by the conflicting testimony, but vigorously contends that he did not receive a fair trial because of prejudicial hearsay testimony admitted into evidence.

The trial court correctly excluded the testimony of Constable Smith as to Daniels’ saying that if Mrs. Gardner cut off the water to his home that he would “put a stick of dynamite in my line”. This remark was not a threat against anybody, and was in effect a retaliatory action that Daniels would take if Mrs. Gardner cut his water off.

Testimony was elicited from Sheriff Brunt as to Jones’ small size and Daniels’ huge size. This testimony should not have been admitted. There was no physical combat or contact between Jones and Daniels. The deadliness or the accuracy of a pistol does not depend upon the physical size of the one who pulls the trigger. A 150-pound man, or woman for that matter, can be just as accurate with a pistol as a 230-pound man.

The testimony of former county prosecuting attorney, Honorable Ben Caldwell, and the testimony of Sheriff Brunt as to Jones complaining to them of threats on his life by Earl Daniels should not have been admitted into evidence. It was hearsay testimony and was not part of the res gestae, as contended by the state.

Even if all the testimony of threats against Jones by Daniels and of Daniels running Jones off of the road, and that Jones was very much afraid of Daniels, were taken as true, still the action of Jones, in advancing upon Daniels as he sat in his truck and emptying his 9-shot .32-caliber Colt automatic pistol at Daniels and seriously wounding him, was not justified.

Even with the admission of this prejudicial testimony it took the jury nine hours to reach a verdict; this clearly indicated that it was a close and difficult ease to them. They were undoubtedly influenced by the improperly admitted evidence, and the admission of this prejudicial testimony constituted fatal error.

We reverse the judgment against Daniels and remand this case for a new trial.

REVERSED AND REMANDED.

PATTERSON and INZER, P. JJ., and SMITH, SUGG, BROOM and LEE, JJ., concur.

GILLESPIE, C. J., and WALKER, J., dissent.

SMITH, Justice, specially

concurring:

I concur in the reversal of Daniels’ conviction and in the reasons stated by Justice Robertson. However, in my humble judgment, there is no evidence in the record capable of supporting any reasonable conclusion other than that Jones was the aggressor from beginning to end in the encounter which resulted in his death and had made and was making a murderous attack upon Daniels at a time when he, Jones, was in no imminent danger, either real or apparent, of suffering death or great bodily harm at the hands of Daniels. Under principles long and well established in homicide cases in the jurisprudence of this State, Daniels is entitled to be discharged. Moreover, if Daniels should be retried and again convicted it is impossible to imagine that justice would not demand that the conviction again be reversed as against the overwhelming weight of the evidence.

PATTERSON and INZER, P. JJ., join in this opinion.

GILLESPIE, Chief Justice,

dissenting:

I dissent as to the two evidence questions decided by the majority.

I.

I think the testimony of Sheriff Brunt and former County Attorney Caldwell, that the deceased reported a threat on his life and inquired about placing the defendant under a peace bond and whether he could arm himself, is admissible to show the state of mind of Jones.

Generally, hearsay problems do not arise in cases where the defendant seeks to show that the victim had previously threatened him. Communicated threats made by the victim to the defendant are commonly admitted to show the effect the threat has on the state of mind of the defendant. When the defendant relies on self-defense, his state of mind is relevant in an inquiry of whether or not he acted reasonably. Eaton v. State, 200 Miss. 729, 28 So.2d 230 (1946). When offered for such purpose, its value, simply, is not dependent on whether or not the statement is true.

Where, however, testimony is elicited from a witness who was told by the homicide victim that the defendant had previously threatened him, a serious hearsay question arises, depending upon the purpose for which such testimony is offered. If the State were permitted to introduce such testimony to prove that a threat was made which would have the tendency to prove by inference that the defendant carried out his threat or to prove by inference the identity of the criminal agency, then the state of mind exception would be allowed to swallow the hearsay rule. See Commonwealth v. DelValle, 351 Mass. 489, 221 N.E.2d 922 (1966); Shepard v. United States, 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196 (1933); Contra People v. Merkouris, 52 Cal.2d 672, 344 P.2d 1 (1959) (Overruled by West’s Ann.Cal.Evid. Code § 1250[b]). If, however, the reported threats are offered to show merely the deceased’s state of mind, then that testimony is not objectionable hearsay. Such testimony is particularly relevant to an inquiry when it is needed to explain subsequent conduct by the decedent. See People v. Atchley, 53 Cal.2d 160, 346 P.2d 764 (1959); People v. Finch, 213 Cal.App.2d 752, 29 Cal.Rptr. 420 (1963); 6 Wigmore, Evidence § 1714, at 91, n. 1 (Chadbourn Rev.1976).

In the instant case, independent evidence establishing that a threat was made had been admitted prior to the testimony of Brunt and Caldwell. Mrs. Jones testified that she heard the defendant threaten her husband. Her testimony is direct proof that a threat was made by Daniels against Jones. Mrs. Gardner also testified that Daniels made a threat in her presence to kill Jones. Although the effect of the testimony by Brunt and Caldwell may bolster that of Mrs. Jones and Mrs. Gardner, that effect is merely incidental to the real purpose of their testimony, i. e., to show that Jones was in a state of mortal fear. Also, since there is no question as to whether or not Daniels fired the fatal shot, it is apparent that the testimony by Brunt and Caldwell was not used to infer the identity of the slayer.

It would have been appropriate under these circumstances for the jury to have been instructed to consider the testimony of Brunt and Caldwell only for the purpose of showing the deceased’s state of mind. However, the defense counsel did not request such an instruction, and I cannot say that the trial judge erred in not taking it upon himself to so instruct the jury. In 29 Am.Jur.2d Evidence §§ 262, 263, at 310-312 (1967), it is stated:

Evidence may be clearly incompetent for one purpose but be entirely proper for another purpose; such evidence is admissible for the latter purpose even though the jury may erroneously use it for other purposes, unless the risk of confusion by the jury is so great as to upset the balance of advantage of receiving it.
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Evidence which is incompetent as to one issue or party, but admissible as to another, cannot properly be considered for its bearing on the former issue or party. Such evidence should be offered by a party and received by the court only for the specific purpose for which it is competent. The court should limit its application by proper instructions, at least when requested to do so or when objection is made to the introduction of the evidence. There is authority to the effect that the opponent of the evidence must ask for the instruction, otherwise he will be held to have waived it as unnecessary for his protection.
Where evidence admissible only for a specific purpose is admitted generally and no request is made to have its effect limited, it is before the jury as evidence generally, and is a proper matter for comment by the trial judge. Evidence introduced without limitation of purpose is in for all purposes.

The fact that threats were made had been overwhelmingly proven by other evidence prior to the testimony of Brunt and Caldwell. There was no question over whether Daniels fired the shot that killed Jones. It is abundantly clear that any prejudicial sting that could have arisen from the Brunt-Caldwell testimony was negated by the previously proven facts. Certainly the risk of confusion on the part of the jury was minimal in nature. Daniels’ attorney made only a general objection to the Brunt-Caldwell testimony. From the briefs filed it is apparent, however, that his attorney did not feel that such testimony was within the permissible bounds of the res gestae exception to the hearsay rule. While I agree that such testimony would not have been admissible under res gestae, it was admissible to show the deceased’s state of mind. It is the duty of the attorney representing his client to make specific objections. If evidence should be limited for a specific purpose, it is the attorney’s duty to make such a request to the trial judge, otherwise it will be deemed waived.

II.

Smith testified that at about noon on the day of the fatal encounter, he had a conversation with the defendant. At that time the defendant knew that Mrs. Gardner had rented her land to another and during the conversation, defendant said, “Now she [Mrs. Gardner] better not cut that water off because I’ll put a stick of dynamite in my line which if it blows up my water, it blows up hers too.” An objection was made and the court heard the parties in chambers, after which the court stated to the jury, “Ladies and gentlemen of the jury, you will completely disregard the statement made by this witness about dynamiting the well of Mrs. Gardner. You are to completely disregard it. The statements will not enter into your verdict one way or the other — the motion for a mistrial is overruled.”

I am of the opinion that this evidence was admissible notwithstanding the State’s position on this question. And, in any event, the case should not be reversed because the court sustained the objection and carefully admonished the jury to disregard the statement of the witness. Obviously, if the testimony was admissible and the trial court erred in excluding it, no error was committed in overruling the motion for a new trial.

The rule given in 6 Wigmore, Evidence § 1732, at 158 (Chadbourn Rev.1976) is that “[statements before the act, asserting malice or hatred, are always received against an accused; except so far as the time of feeling is so remote as to make it irrelevant. . ” In 1 Wigmore, Evidence § 106 (3rd ed. Supp.1975), the cases involving generic threats are collected. The rule gathered from the following cases is that nonspecific threats, acts, conducts, and words of a party accused are admissible in all cases where they tend to show either a motive for the commission of the crime, or evince malice toward the party afterwards killed.

In Lambert v. State, 171 Miss. 474, 158 So. 139 (1934), this Court quoted the following statement from Johnson v. State, 85 Miss. 572, 37 So. 926 (1904):

“It is an elementary principle that the acts, conduct, and words of a party accused are admissible in all cases where they tend to show either a motive for the commission of the crime or evince malice towards the party afterwards killed.” 171 Miss. at 480, 158 So. at 141.

In Sandifer v. State, 192 So. 342 (Miss.1939), the Court held that in a murder prosecution, evidence of statements by the defendant three or four hours before the homicide that he was going to kill somebody was admissible as tending to show that the killing was with malice aforethought.

In Massey v. State, 19 So.2d 476 (Miss.1944), the Court said:

There is a well established exception to the general rule and this case comes within it. On the trial of an indictment a previous crime threatened or committed by defendant can be proved “(a) where it is connected with the one charged in the indictment, and sheds light upon the motive of defendant or (b) where it forms part of a chain of facts so intimately connected that the whole must be heard in order to interpret its several parts.” (Citations omitted). 19 So.2d at 476-477.

The authorities of other states are to similar effect. In Caddell v. State, 129 Ala. 57, 30 So. 76 (1901), the Court stated:

Mere threats, when directed to a particular person, are not evidence of malice or evil purpose towards another, nor can threats which are merely general be considered as menacing any particular person; but the threat in question was neither so restricted nor general. It comprehended those who might interfere with defendant’s relations with Mrs. Gardner; and if there was evidence indicating that defendant believed the deceased so interfered, and that he instigated her death, the threat was competent to be shown, and the question of whether the threat applied to her was for the jury. Ford v. State, 71 Ala. 385; Jordan v. State, 79 Ala. 9; Redd v. State, 68 Ala. 492. The threat against whoever might interfere with defendant and Mrs. Gardner, and likewise acts of undue intimacy between him and her, were admissible, as tending to show his infatuation for that woman, and consequently as disclosing a motive for inciting the crime. Johnson v. State, 94 Ala. 35, 10 So. 667. And as further evidence of motive, induced by an actual interference, it was proper to prove the prosecution for adultery, by introducing the affidavit and warrant in that case. Evidence of motive, whether proceeding from malice or other cause, is always admissible for the prosecution, as making a conspiracy probable. 30 So. at 78-79.

In Commonwealth v. Glover, 446 Pa. 492, 286 A.2d 349 (1972), the Court admitted testimony of threats against others than the person killed and stated as follows:

The evidence was properly admitted to demonstrate the existence of ill feeling and motive on the part of Glover directed against Miss McKinnon and her friends. It is well settled that “[ejvidence to prove motive, or intent, or plan, or design, or ill will, or malice is always admissible.” (Citations omitted).
The state of mind that will permit the admission of an unrelated crime is the state of mind at the time of the commission of the offense as shown by the acts or words of the defendant so close in time to the alleged offense as to have bearing upon his state of mind at that time. (Citations omitted).
While proof of ill will and prior acts of hostility in the context of a homicide usually demonstrate the state of mind of a defendant to the victim himself, under the circumstances of this case, the evidence of bad feelings towards Miss McKinnon and Milner was relevant to the Robinson homicide. 286 A.2d at 351.

In discussing an earlier ease, the Pennsylvania Court said:

The instant situation is not unlike that dealt with in Commonwealth v. Minoff, 363 Pa. 287, 69 A.2d 145 (1949), which involved a bitter quarrel between two disputing factions of a church congregation. The hostile acts and threats of violence of the defendant in that case against one member of the opposing faction was held admissible as evidence at his trial for the homicide of two other members of the same division. “Here, the evidence of the prior threats was admissible to show the quo animo of the defendant under like mental stimulus toward certain persons with respect to a particular subject.” Id. at 295, 69 A.2d at 149. In the case at bar, threats to Miss McKinnon and her male friends were most relevant to demonstrate Glover’s quo animo to other male friends of his former paramour, particularly since Mil-ner was present to act as the “mental stimulus” that precipitated the rage. 286 A.2d at 352.

And, in State v. Meidle, 202 S.W.2d 79 (Mo.1947), the Court admitted non-specific threats in a murder case, holding that the veiled threats of the defendant toward those who might trespass upon his land were relevant and admissible to prove the existence and design of the state of mind from which defendant’s acts of shooting proceeded and supports the inference of defendant’s criminal purpose or intent in firing the fatal shot.

Applying these principles to the ease at bar, I think the testimony of witness Smith was admissible under the circumstances. In this case, the controversy arose out of Mrs. Gardner’s leasing of the property to Bennett. There is no question that the defendant was angry at Jones and Mrs. Gardner, and that he had threatened Jones because of what Mrs. Gardner had done upon Jones’ advice. The testimony of the threats against Mrs. Gardner show the state of mind of the defendant which involved the same mental stimulus that generated the anger toward Jones. The jury should not have been denied the right to take this into consideration as revealing the defendant’s state of mind in determining who was aggressor in the fatal encounter. It is all intimately woven together.

WALKER, J., joins in this dissent.  