BEFORE ROY NOBLE LEE, DAN LEE and PRATHER
ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:
Howard Hammond was found guilty in the Circuit Court of Lauderdale County, Honorable Lester Williamson, presiding, for the murder of Shirley Hammond, his wife, and was sentenced to serve a life term in the custody of the Mississippi Department of Corrections. He has appealed to this Court and assigns four (4) errors in the trial below.
Appellant and his wife went fishing on Saturday, December 4, 1982. They arrived at the fishing area about 2:40 in the afternoon. It consisted of several lakes and a creek, which was swollen due to rains during the day.
According to appellant, he and Mrs. Hammond had drunk several rum and cokes before arriving at the fishing spot, but were not drunk. He testified that they went to the creek bank and began rigging their fishing gear; that Mrs. Hammond had everything prepared for fishing except she had not baited her hook; that appellant started walking up the creek and had gone about 400 feet when he heard Mrs. Hammond make a noise, although it was not a cry for help; that he turned around and could not see her, ran back to where she had been standing and jumped into the water, but could not find her; that he finally gave up his search and called the sheriff's office and notified the sheriff about what happened. Dragging operations were begun and Mrs. Hammond's body was found in the creek on the following Monday, December 6.
An autopsy was performed on the body by Dr. Patrick Spraberry. He found numerous blows about the head and face of the body, but no marks elsewhere on it. Photographs in the record indicate the violence of the blows to the victim's head. It was the opinion of Dr. Spraberry that Mrs. Hammond died of "massive cerebral edema" resulting from a blow(s)
inflicted by a blunt instrument. He found no water in the lungs which indicated to him that she did not drown.
Life insurance agents for New York Life Insurance Company and Life of Georgia Insurance Company testified that Mrs. Hammond had two life insurance policies issued either in June, 1980, or 1981, with double indemnity death benefits for a total of $340,000, and that Life of Georgia Insurance Company had issued an insurance policy on the life of Mrs. Hammond in the sum of $50,000 with double indemnity benefits. Appellant was the beneficiary in those policies. On December 3, 1982, appellant telephoned Mr. Vincent, an agent for Life of Georgia, and inquired about the policy with that company to be sure the policy was still in effect. He asked Vincent whether the policy paid double for accidental death and who the beneficiary was in the policy.
James Troxal testified for the State that in February, 1982, he was operating a bar in Meridian and that appellant approached him one night and offered him $5,000 to kill his wife and make it look like an accident; that appellant said he needed the deed done because there was insurance involved; that Troxal refused the offer and Hammond left, but the next day he returned to the bar and told Troxal to forget what they had talked about. Doug Troxal, brother of James Troxal, testified that he heard the conversation between James Troxal and appellant. *fn1
George Williams, employee with the Department of Wildlife, participated in the dragging operations for the body of Mrs. Hammond. He testified that the fishing rod was recovered from the creek which appellant identified as belonging to Mrs. Hammond. They only found the butt section of the rod with a closed face spinning reel on it. The line was still inside the reel and had not been rigged for fishing.
THE LOWER COURT ERRED IN PERMITTING THE STATE TO INTRODUCE TESTIMONY OF A SOLICITATION ON THE PART OF APPELLANT TO PROCURE THE MURDER OF HIS WIFE AS SAID INCIDENT WAS TOO REMOTE IN TIME TO THE DEATH OF THE DECEASED TO BE OF PROBATIVE OR EVIDENTIARY VALUE.
Appellant objected to the testimony of the Troxals that he solicited James Troxal to kill Mrs. Hammond on account of the insurance. The basis for the objection was that the solicitation occurred ten (10) months prior to Mrs. Hammond's death and that it was remote, irrelevant and unduly
prejudicial. The Court has said that in determining whether or not a threat may be too remote to be admissible, the trial court exercises its discretion in deciding whether such evidence should be admitted. In Grooms v. Pace, 357 So. 2d 292 (Miss. 1978), discussing this question relating to threats, the Court said:
"We have held in several cases that threats made by an accused to kill the deceased uncommunicated to the deceased are admissible in evidence. These threats show malice, premeditation or criminal intent. Herron v. State, Miss., 287 So. 2d 759, cert. denied 417 U.S. 972, 94 S. Ct. 3179, 41 L.Ed.2d 1144 (1974); Ladner v. State, 197 So. 2d 257 (Miss. 1967); Lambert v. State, 171 Miss. 474, 158 So. 139 (1934); Myers v. State, 167 Miss. 76, 147 So. 308 (1933). We further have held that should the alleged threat be so remote as to be of no evidentiary value it should not be admissible. Myers v. State, supra. In Sharplin v. State, 330 So. 2d 591 (Miss. 1976), we held that the trial judge did not abuse his discretion in allowing evidence of a conditional threat made by the accused two months before the killing of the deceased. Whether or not a threat is too remote to be admissible is a question addressed ...