Summary
In Adams v. State, 175 Miss. 868, 874, 167 So. 59, 60, this Court said: "By an instruction for the state the court took away from the consideration of the jury a verdict of manslaughter.
Summary of this case from Newell v. StateOpinion
No. 32041.
April 6, 1936. Suggestion of Error Overruled April 20, 1936.
1. HOMICIDE.
Instruction, taking manslaughter verdict away from jury's consideration in murder trial, held not error under evidence, which did not tend to show that killing was in heat of passion and without malice.
2. HOMICIDE.
Manslaughter instruction should be refused, where evidence shows either murder or justifiable homicide.
3. CRIMINAL LAW.
Instruction in murder trial that if jury believed from evidence beyond reasonable doubt that defendant and his brother, acting in concert, shot at deceased with intent to kill him and he was killed by bullets from pistol in hands of either of them, defendant should be found guilty held not erroneous as on weight of evidence and peremptorily charging that defendant and his brother were jointly engaged in shooting.
4. HOMICIDE.
Instruction to find defendant guilty of murder, if deceased was killed by bullets discharged by pistol in hands of either defendant or his brother while shooting at deceased "and acting in concert, each with a knowledge of the other" held not erroneous because of quoted words, in view of state's evidence that defendant was joint actor with his brother in homicide; no proof of prior conspiracy being necessary.
5. CRIMINAL LAW.
Refusal of instruction that if there was reasonable doubt, arising from evidence or lack thereof, as to whether defendant in murder trial did shooting, jury should find him not guilty, "regardless of every other fact and circumstance in the case," held not error, in view of evidence that he was joint actor with another in homicide.
6. HOMICIDE.
Instruction in murder trial that killing of human being without authority of law, with deliberate design to effect death of person killed or any human being, is murder held proper as embodying statutory definition of murder.
7. CRIMINAL LAW.
Separation of juror from other jurors for two or three minutes after leaving jury room toilet with deputy sheriff until he rejoined other jurors at lunch held not ground for granting defendant new trial after conviction of murder; there being no showing of opportunity for any one to tamper with such juror nor of harm to or opportunity to harm defendant's rights.
8. HOMICIDE.
Evidence held sufficient to support conviction of murder.
APPEAL from circuit court of Simpson county. HON. EDGAR M. LANE, Judge.
J.W. Strong and Frank T. Williams, both of Mendenhall, and Martin Berry, of New Hebron, for appellant.
The court below erred in overruling peremptory instruction for manslaughter thereby locking the jury up to instructions for murder or nothing.
We submit that defendant did not have to submit again, under the situation in this case, any instruction, other than the peremptory asked for, submitting manslaughter.
Tatum v. State, 142 Miss. 110, 107 So. 418.
We submit that it was not upon appellant to again ask for a manslaughter instruction at all, and especially so in view of the recent decision of our court in Grant v. State, 160 So. 600, where the whole phase of these theories was discussed and the court reverted to the holding in the Johnson and Allen cases, in neither of which was there any manslaughter instruction asked for by either the state or defendant.
Johnson v. State, 75 Miss. 635; Allen v. State, 139 Miss. 605, 104 So. 353; Tatum case, 142 Miss. 110, 107 So. 418; Grady v. State, 144 Miss. 778, 110 So. 225; Myers v. State, 167 Miss. 76, 147 So. 308; Grant v. State, 160 So. 600.
Whenever the life of a human being is in the balances, it is but just to him that the law governing the case made against him be properly stated to the jury.
Strickland v. State, 81 Miss. 134, 32 So. 921.
The court erred in granting the following instruction: "The court instructs the jury for the state that if you believe from the evidence in this case beyond a reasonable doubt that the defendant, Cliff Adams, and his brother, Johnnie Adams, were at the same time engaged in shooting at the deceased, as testified to, and acting in concert, each with a knowledge of the other, with intent to kill and murder the deceased in manner and form as charged in the indictment, and that as a result of said shooting participated in by the defendant and his said brother, the deceased was killed by bullets discharged by a pistol in the hands of either the defendant or his brother, then you should find the defendant guilty as charged regardless of whether you believe the fatal shot was fired by the defendant or his brother, Johnnie Adams."
We maintain that this instruction was plainly on the weight of the evidence and in violation of Section 586 of the Code and the decisions of our court. It assumes as true the fact that both Cliff Adams and Johnnie Adams were shooting at deceased. (French v. Gale, 63 Miss. 386.) It does not let in for consideration by the jury any basis for defendant's theory or his evidence.
The instruction ignores defendant's version of the shooting and gives the jury no chance to pass upon his defense at all and falls within the condemnation of the rule in Leverette v. State, 112 Miss. 394, 73 So. 273, holding that it was prejudicial error to ignore defendant's version of the shooting and of what occurred at the time.
The peremptory charge that both John Adams and Cliff Adams were shooting is further emphasized. The instruction should have carried some such words as "if the jury believe that both did participate in the shooting."
Cunningham v. State, 87 Miss. 417, 39 So. 531.
The instruction in the case at bar is all the more erroneous than the one in the Cunningham case, for the reason that in the Cunningham case the defendant admitted firing his gun in an effort to prevent the commission of an assault and battery.
Gordon v. State, 95 Miss. 543, 49 So. 609; Fore v. State, 75 Miss. 727; Tidwell v. State, 84 Miss. 475.
The verdict is contrary to the law and the evidence and is against the overwhelming weight of the evidence and the trial court erred in refusing to hold that the crime, if any, was no higher in degree than manslaughter.
Clarke v. State, 112 Miss. 201, 74 So. 127; Dye v. State, 127 Miss. 492, 90 So. 180; Guest v. State, 96 Miss. 871; May v. State, 89 Miss. 291, 42 So. 164; Johnson v. State, 75 Miss. 635, 23 So. 579; Hunter v. State, 74 Miss. 515; Jackson v. State, 79 Miss. 42; Lofton v. State, 79 Miss. 723; Woods v. State, 81 Miss. 165; Thames v. State, 82 Miss. 667.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
It is said that the instructions for the state shut the jury up to a consideration of murder or nothing and excluded the possibility of a manslaughter verdict. The instruction on the forms of verdict which the jury might return in the case was in the following words: "The court instructs the jury for the state that `In the event they find the defendant guilty in this case, that they may return one of the following verdicts, to-wit.'" And then follows the three verdicts which the jury might return, where it found a defendant guilty of murder, that is, they could provide for the death sentence, or they could fix his punishment at life imprisonment, or that they could disagree as to the punishment and the court would sentence him to life imprisonment.
In Grant v. State, 172 Miss. 309, 160 So. 600, the court reviewed the cases dealing with this question and overruled its previous decision in the case of Tatum v. State, 142 Miss. 110, 107 So. 418; the phraseology of the instruction in the case at bar is precisely the same as that construed by the court in the Grant case.
This type of instruction is only erroneous where, under the evidence, a manslaughter verdict would be proper.
This court has heretofore held that the trial court should refuse a requested manslaughter instruction where the testimony shows either murder or a justifiable homicide.
Ricks v. State, 151 So. 572; Winchester v. State, 163 Miss. 462, 142 So. 454; Bridges v. State, 154 Miss. 489, 122 So. 533; Dixon v. State, 164 Miss. 540, 143 So. 855; 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. 578; Ealy v. State, 128 Miss. 715, 91 So. 417.
As to the other instruction complained of, the clause "if you believe from the evidence beyond a reasonable doubt" modifies the balance of the provisions in the instruction, so that the instruction does not charge on the weight of the evidence and does not peremptorily charge that Cliff Adams and Johnnie Adams were jointly engaged in this shooting. This is one of the elements of the instruction which the jury is required to believe from the evidence beyond a reasonable doubt.
Golding v. State, 144 Miss. 298, 109 So. 731, we submit, is directly applicable to and on all-fours with the instruction here complained of.
Under the state's proof, Cliff Adams was a joint actor in this homicide with his brother and no proof of prior conspiracy was necessary to show his liability.
Starks v. State, 113 Miss. 266, 74 So. 123; Anderson v. State, 171 Miss. 41, 156 So. 645.
Appellant and his brother, Johnnie Adams, were jointly indicted in the circuit court of Simpson county for the murder of Alonzo McIntosh. Johnnie Adams was never apprehended; appellant was therefore tried separately, resulting in a verdict and judgment of guilty, and a sentence to the penitentiary for life.
The killing took place about two o'clock Sunday morning, April 14, 1935, at the home of Albert Daughtry. There were many people present; the occasion was a "frolic" with drinking, crap shooting, fiddling, dancing, and fish frying going on. Everybody was drinking and many were drunk. Alonzo McIntosh was shot to death either by appellant or appellant's brother, Johnnie Adams, or both.
The evidence for the state, if true, established these facts: Fifteen or twenty minutes before the homicide Alonzo McIntosh and Johnnie Adams had an altercation in the house; apparently it was not serious. Later appellant and Johnnie Adams left the house and were standing on the outside, appellant at the foot of the steps and Johnnie Adams on the porch. Alonzo McIntosh threw a bottle out of the door, which struck some one on the outside, but not appellant nor his brother. Whether he was simply throwing an empty bottle outside to get rid of it or throwing it at some one is not shown. Immediately after this occurrence both appellant and his brother began shooting at McIntosh; six shots were fired at him and three took effect; he died in a few minutes after being shot.
Appellant testified that he had nothing to do with the shooting; that when the first shots were fired he left the scene. Several witnesses testified on behalf of appellant that they could not tell whether any of the shots were fired by him.
By an instruction for the state the court took away from the consideration of the jury a verdict of manslaughter. This action of the court is assigned and argued as error. 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. 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.
The giving of the following instruction is assigned and argued as error:
"The court instructs the jury for the state that if you believe from the evidence in this case beyond a reasonable doubt that the defendant, Cliff Adams, and his brother, Johnnie Adams, were at the same time engaged in shooting at the deceased, as testified to, and acting in concert, each with a knowledge of the other, with intent to kill and murder the deceased in manner and form as charged in the indictment, and that as a result of said shooting participated in by the defendant and his said brother, the deceased was killed by bullets discharged by a pistol in the hands of either the defendant or his brother, then you should find the defendant guilty as charged regardless of whether you believe the fatal shot was fired by the defendant or his brother, Johnnie Adams."
The argument is that the instruction is on the weight of the evidence, that it peremptorily charged that the appellant and his brother were jointly engaged in the shooting. The criticism is without merit. The language in the instruction, "If you believe from the evidence in this case beyond a reasonable doubt," modifies all that follows. Another criticism of the instruction is that it used the words, "and acting in concert, each with a knowledge of the other." Under the state's evidence, appellant was a joint actor in the homicide with his brother, therefore no proof of prior conspiracy was necessary. Sparks v. State, 113 Miss. 266, 74 So. 123; Anderson v. State, 171 Miss. 41, 156 So. 645. It follows that the court did not err in refusing appellant's requested instruction that if there was a reasonable doubt in the case arising from the evidence or lack of evidence as to whether appellant did the shooting, then the jury should find the defendant not guilty "regardless of every other fact and circumstance in the case."
Appellant complains of the following instruction for the state: "The court instructs the jury for the state that the killing of a human being, without authority of law, by any means or in any manner, shall be murder, when done with the deliberate design to effect the death of the person killed or of any human being." The instruction embodied the statutory definition of murder and was approved by this court in Atkinson v. State, 137 Miss. 42, 101 So. 490, and Brown v. State, 173 Miss. 542, 158 So. 339.
On appellant's motion for a new trial it was shown that after the trial had begun the jury were taken to lunch at the noon hour, and that one of the jurors, T.B. May, went in the toilet off from the jury room, and while there the others were taken out and the door was locked. A court attendant heard May knocking on the door and unlocked it, he came out, and a deputy sheriff took charge of him and escorted him to where the other jurors were having lunch. From the time the door was unlocked until the juror rejoined the group at lunch only two or three minutes had intervened. There was no showing of an opportunity for any one to tamper with the juror, rather to the contrary. It was not shown that appellant's rights were harmed, or that there had been an opportunity to harm them. Sanders v. State, 150 Miss. 296, 116 So. 433.
There is no merit in the argument that the verdict was against the overwhelming weight of the evidence; there was ample evidence to support it.
Affirmed.