Opinion
No. 35912.
January 14, 1946.
HOMICIDE.
Where defendant was convicted of manslaughter in accord with manslaughter instruction granted jury at state's request, and evidence would have justified a conviction of murder, the instruction on manslaughter even if not authorized by evidence, did not constitute reversible error.
APPEAL from the circuit court of Warren county, HON. R.B. ANDERSON, Judge.
Culkin, Laughlin Thames, of Vicksburg, for appellant.
Under the evidence there was no element of manslaughter in the case. It did not tend to show that the killing was in the heat of passion and without malice; in other words, it was a case of murder or nothing. A manslaughter instruction should be refused where the evidence shows either murder or a justifiable homicide.
Adams v. State, 175 Miss. 868, 167 So. 59; Ricks v. State (Miss.), 151 So. 572; Dixon v. State, 164 Miss. 540, 143 So. 855; Winchester v. State, 163 Miss. 462, 142 So. 454; Bridges v. State, 154 Miss. 489, 122 So. 533; Brister v. State, 143 Miss. 689, 109 So. 728; Leavell v. State, 129 Miss. 579, 92 So. 630; Jones v. State, 129 Miss. 457, 92 So. 586; Ealy v. State, 128 Miss. 715, 91 So. 417; Rester v. State, 110 Miss. 689, 70 So. 881.
See also Hannah v. State, 87 Miss. 375, 39 So. 855; White v. State, 142 Miss. 484, 107 So. 755; Virgil v. State, 63 Miss. 317; Walker v. State, 123 Miss. 517, 86 So. 337; Hudson v. State, 185 Miss. 677, 188 So. 561; Dillon v. State, 196 Miss. 625, 18 So.2d 454.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
The giving of a manslaughter instruction was not prejudicial to the defendant and he could not complain of the giving of the instruction and a conviction of manslaughter.
Rolls v. State, 52 Miss. 391; Houston v. State, 105 Miss. 413, 62 So. 421; Triplett v. State, 159 Miss. 365, 132 So. 448; Bustin v. State, 184 Miss. 1, 185 So. 259; Sullivan v. State (Miss.), 192 So. 441; Graham v. State, 195 Miss. 291, 15 So.2d 478; Jones v. State, 144 Miss. 52, 109 So. 265, 71 L.Ed. 817; Calicoat v. State, 131 Miss. 169, 95 So. 318.
The appellant was tried on an indictment for murder, and convicted of manslaughter in accord with a manslaughter instruction granted the jury at the request of the state. Counsel for the appellant admit that the evidence would have justified a conviction of murder but say that no element of manslaughter appears therein, and, consequently, the instruction on manslaughter should not have been given, and for that reason the judgment of the court below should be reversed.
Reliance is placed by counsel for the appellant on the case of Rester v. State, 110 Miss. 689, 70 So. 881, which, if it were still in effect, would justify counsels' position, but they overlook the fact that that case was overruled in Calicoat v. State, 131 Miss. 169, 95 So. 318; that it was there held that the defendant in such a case has no cause of complaint at the granting to the state of a manslaughter instruction, and that that case has been many times followed and approved, among the cases so doing are: Stevenson v. State, 136 Miss. 22, 100 So. 525; White v. State, 142 Miss. 484; 107 So. 755; Goss v. State, 144 Miss. 420, 110 So. 208; Alexander v. State, 145 Miss. 675, 110 So. 367. Barnett v. State, 146 Miss. 893, 112 So. 586; Everett v. State, 147 Miss. 570, 113 So. 186; Blalock v. State, 148 Miss. 1, 113 So. 627; Taylor v. State, 148 Miss. 713, 114 So. 823; Carter v. State, 152 Miss. 43, 118 So. 369; Blevins v. State, 169 Miss. 868, 154 So. 269; Bradford v. State (Miss.), 161 So. 138; Moore v. State (Miss.), 194 So. 921; Hand v. State, 190 Miss. 314, 200 So. 258; Graham v. State, 195 Miss. 291, 15 So.2d 478.
Affirmed.