Summary
In Bangren the question of scope of remand was decided by an evenly divided court and, as noted by Justice McGehee, he was therefore unable to incorporate the same as a part of the controlling opinion written by him.
Summary of this case from Wells v. StateOpinion
No. 35495.
April 24, 1944.
1. HOMICIDE.
In murder prosecution, whether defendant used more force than reasonably appeared to be necesary for purpose of ejecting deceased from defendant's home or whether defendant killed deceased in what reasonably appeared to be in necessary self-defense was for jury.
2. HOMICIDE.
In murder prosecution where evidence indicated that shooting occurred while defendant was attempting to eject deceased from home of defendant, failure of trial court to limit issue for jury to question of manslaughter or justifiable homicide was error (Code 1942, sec. 2225).
3. HOMICIDE.
A person may be guilty only of manslaughter or justifiable homicide when slaying another even though accused is angry and is bearing ill will toward his adversary at time of killing, if act is done while resisting an attempt of adversary to do an unlawful act, or after such attempt has failed, if the anger or ill will is engendered by particular circumstances of the unlawful act then being attempted or the commission of which had been thwarted, and was nonexistent prior thereto.
4. HOMICIDE.
Malice aforethought is a necessary element of murder but malice must precede the unlawful act which is being attempted or committed by the person killed, where the killing is done in resisting an attempt to do an unlawful act.
5. HOMICIDE.
Even if defendant had extended an invitation for deceased to visit defendant's home, defendant had right to revoke the invitation and to thereafter deal with deceased as a willful trespasser for purpose of determining degree of offense committed by defendant who shot deceased while attempting to eject him from home of defendant.
6. HOMICIDE.
The fact that the law was being violated in home of defendant did not deprive her of right to defend or protect it from unwarranted intrusions or trespasses.
APPEAL from the circuit court of Alcorn county, HON. THOS. H. JOHNSTON, Judge.
Fred B. Smith, of Ripley, and G.C. Moreland, of Corinth, for appellant.
The court erred in refusing the instruction requested by the appellant that she be found not guilty. The appellant requested, and the court refused, the following instruction: "The court instructs the jury to find the defendant not guilty," and the refusal of this instruction is assigned as error. The question involved relative to the refusal of this instruction is whether or not, in view of the situation as it then existed, and in the light of what had already taken place, the appellant, as a reasonable person had a right to reasonably assume that the deceased, in his drunken condition, and evidencing anger, would commit a felonious assault on her, or any other person in her dwelling, at the time he jerked open the door, over her protest, and after being ordered to leave. If she, as a reasonable person, had a right to reasonably so assume, then the killing of the deceased was justifiable.
Code of 1930, Sec. 988.
There is no law more firmly established, or which has been more continuously recognized, than the right of a person to protect and defend his dwelling against the unlawful and felonious assaults of another even to the extent of taking human life.
Williams v. State, 127 Miss. 851, 90 So. 705; 26 Am. Jur., Secs. 166, 167.
It will be said that this home of the appellant was a house of prostitution, and that the deceased, along with other men, was invited to come there. Granting that the proof does show such to be the case, it was the home of the appellant and she had in nowise forfeited her right to defend her habitation. There is no evidence that the deceased had ever been invited to come there; if there was an implied invitation it had been cancelled, and regardless of the general invitation that may have existed, the appellant had a right to cancel same at any time. Even a store keeper, or hotel keeper, or other person dealing with the general public, who extends to the public by advertisement or otherwise an invitation to visit his place of business, has a right under the law to cancel this invitation, and after it is cancelled, if the party come again he is a trespasser.
Brookside-Pratt Mining Co. v. Booth, 211 Ala. 268, 100 So. 241; 2 R.C.L. 557, Sec. 36, p. 559, Sec. 37; 5 C.J. 632, Sec. 27.
See also Ayers v. State, 60 Miss. 709; Maury v. State, 68 Miss. 605, 9 So. 445; Long v. State, 52 Miss. 23; Patty v. State, 126 Miss. 94, 88 So. 498.
The court erred in refusing the instruction requested by the appellant, that she could not be found guilty of murder. The fact that the homicide was committed in preventing an unlawful entry into a dwelling may, where the circumstances are not such as to justify the act, reduce the degree of the crime to manslaughter.
Bowen v. State, 164 Miss. 225, 144 So. 230; Williams v. State, 120 Miss. 604, 82 So. 319, 122 Miss. 151, 84 So. 8; Jones v. State, 170 Miss. 581, 155 So. 430; Code of 1930, Secs. 995, 1168; 26 Am. Jur., Sec. 170; 26 C.J. 803, 804; 63 C.J. 1075; 25 A.L.R. 508; 32 A.L.R. 1541; 34 A.L.R. 1488.
The appellant was in her own home, and even if it was a house of prostitution, it was her home, her castle, and she had the right to defend it.
Russell v. State, 61 Fla. 50, 54 So. 360; State v. Kennade, 121 Mo. 405, 26 S.W. 347.
We do not believe under all the circumstances that the appellant was guilty of any crime in shooting the deceased, but certainly under the laws of this state she could have been guilty of no greater crime than that of manslaughter. Should this court determine that the case should not be reversed and dismissed, then we earnestly urge that it should be reversed for the failure to give the instruction limiting same to manslaughter and remanded to the end that another jury, not swayed by the passion and prejudice that usually exists immediately after such occurrences, may bring to bear a cooler and calmer judgment, in the determination of the guilt or innocence of the appellant of the crime of manslaughter.
Greek L. Rice, Attorney-General, by George H. Ethridge, Assistant Attorney-General, for appellee.
The question presented for decision is, first, whether the proof was sufficient to sustain a conviction of murder, and, second, whether or not the court should have limited the jury to consider only the question as to whether the defendant was guilty of manslaughter.
It is a well settled practice, recognized in law, that the jury may accept part of the evidence or testimony of particular witnesses and reject part of particular witnesses, or the jury may wholly disbelieve a witness where there are circumstances in warranting the jury to believe that the witness was not truthful, and that the jury may take part of one witness's testimony and another part of another witness's testimony and make up their verdict from consideration of the various parts of the testimony which impresses the jury as being true and it may reject the evidence insofar as the jury reasonably disbelieves it. The jury need not discredit a witness's testimony where it is believable because other parts of the evidence may show the witness was mistaken or untruthful. It must be admitted that the evidence in this case comes from witnesses of questionable character throughout, some of them were prostitutes and others were patrons or customers of prostitutes, while still others lived in a community that seems to have been devoted largely to immoral practices or conditions, and witnesses who lived in such an atmosphere were not of the highest type of credibility.
The law has never recognized mere blows by hand or foot as of itself sufficient danger of life or limb to warrant the use of a deadly weapon or to take life. In other words, the law does not recognize the right to kill merely to prevent a blow with the hand or foot but it is only when great physical disparity exists and circumstances show a deadly purpose to kill by one of superior strength that the weaker one may take life to prevent death or great bodily injury. There is nothing in the record so far as I can see that warrants the jury in believing, or the appellant herself in believing, that great bodily harm, which means loss of limb or life, would result to her from anything the deceased was then doing. There is no evidence that he threatened to take her life or to kill her and, in fact, no evidence of any threatening word that could be reasonably construed as undertaking to kill or inflict great bodily injury; at most, it was only a simple assault and battery, but I submit the proof in the case warranted the jury in disbelieving altogether the defendant's theory of what the deceased did, because it is not borne out by any fact or circumstance which the jury would be bound to accept. I do not deem it necessary to go into an elaborate discussion of the law on homicide. Section 2215, Code of 1930, defines murder, and the evidence is sufficient if believed by the jury, if it did believe, to warrant a conviction of murder.
It was clear that appellant designed when she fired the shot to kill the deceased. There is testimony, which if believed, of fairly disinterested witnesses that said she had so threatened if the appellant returned to the house and that she so applied to him fighting words calculated to make him return to the house. Justifiable homicide is defined by Section 2218, Code of 1942, Section 988, Code of 1930, and it is not applicable to the facts of this case because the evidence does not bring the case within any of the classes of this statute. There is no evidence that the deceased was attempting to unlawfully kill the appellant or commit any felony upon him. Nor is there any evidence in the case that warrants the belief that he was attempting to commit any felony upon the house in which appellant was then staying. Nor is there any evidence that there was any reasonable grounds to apprehend that he designed to commit a felony upon the appellant or do her some personal injury and there was iminent danger of such design being accomplished. Nor did the deceased commit any felony which would warrant the appellant in trying to apprehend him and there was no evidence that she was trying to arrest him for any conduct that had taken place at this place. The law has never tolerated the taking of life merely to avenge insult, nor does it authorize the taking of life to prevent an assault not amounting to danger of life or limb. These sections of the Code are fully annotated with the decisions discussing the various phases of the law on murder, and the justification for homicide. Section 2219, Code of 1942, deals with excusable homicides and none of its provisions are applicable to the present case and should be set aside.
The question then presents itself as to whether the jury should have been limited to manslaughter or not guilty, under Section 2220, Code of 1942. I submit that this section was not applicable to the facts developed in this case. The section provides that the killing of a human being without malice, by the act, procurement or culpable negligence of another, while such other is engaged in the perpetration of any felony, except rape, burglary, arson, or robbery, or while such other is attempting to commit any felony besides such as are above enumerated and excepted, shall be manslaughter. I do not think the evidence brings this section into operation in this case, but even if it did, the jury was instructed by the state as to the law of manslaughter. Under this section the killing must be while such other is engaged in committing a felony of certain types, or while such attempt is being made to commit any felony, besides such as are enumerated in the section and excepted. As stated, there was nothing in the evidence to show that the deceased was attempting to commit any felony.
Neither should the state have been limited to manslaughter under Section 2221, Code of 1942, Section 991, Code of 1930. This section is intended to make certain types of killing that were murder at the common law manslaughter in this state. No such acts were being committed when the deceased was slain. This section, therefore, is not applicable. However, if it were applicable under any conceivable construction of the evidence, the complainant could not complain because she did not secure an instruction stating therein the particular hypothesis which would bring the case under this section. The jury was instructed as to what constituted manslaughter by the state and it then devolved upon the defendant to present any particular hypothesis in the evidence which would make the killing manslaughter rather than murder and I submit that the proof does not present such hypothesis in this case.
The evidence here is not a case where the killing was in defense of the home within the meaning of that word in the law. The defendant adopted the theory of self-defense and the court instructed the jury that the defense in this case is self-defense. Having planted her rights in the trial court on the right of self-defense and getting the court to instruct the jury that that was the defense the jury should consider the appellant cannot shift her grounds in this court but must stand or fall upon the justice made in the court below when she procured the court to tell the jury that it was the defense in her case. Furthermore, I submit that the defendant's place was not a home surrounded by the sanctity of the law and protected as a home under the law. It seems to me too clear for argument that there is no right of defending such a place by force and arms and by violence and death.
Code of 1942, Secs. 1060, 1061, 1062, 1063, 1066, 1067, 1071, Code of 1930, Secs. 2868, 2869, 2870, 2871, 2874, 2875, 2879.
Argued orally by Fred B. Smith, for appellant.
The appellant was convicted of the crime of murder, was sentenced to life imprisonment in the state penitentiary, and has prosecuted this appeal.
After a visit to the room of Marlene McKee, a sixteen year old girl, at the home of the appellant, Vernice Mae Bangren, in the City of Corinth, where young girls were permitted to come and have dates with men, one Gerald Wardlaw, a married man, was shot and killed by the said occupant of the house while she was attempting to eject him therefrom. Shortly prior to the shooting, the said Wardlaw had forcibly taken the sum of $3 from Marlene McKee immediately after having paid the same to her; thereupon an argument ensued in which the appellant also became involved and which resulted in Marlene McKee calling Wardlaw a "cheap son of a bitch" as he stood in the road or street in front of the house flourishing this money in his hand. The appellant then stated to Wardlaw, "Since you have got your money how about you going on, I don't like your kind around here." Nevertheless, he then re-entered the house and stated to the appellant that Marlene had better say that she was sorry for what she had said, whereupon the appellant required her to apologize to him and then commanded that he get out of the house and not come back any more. He replied that it was the first time that anyone had tried to tell him what to do or order him around, and that he had come back to tell her what to do. He then left, however, but presently returned, and, over the protest of the appellant, came into the front room where she and others were sitting.
Marlene McKee testified as a witness for the state that in the meantime the appellant had stated that if he came back she was going to kill the "damn son of a bitch." However, as he was again entering her home, the appellant made no attempt at that time to carry out this alleged threat, but thinking that he had perhaps left some of his supply of whiskey in the house, from which they all had been drinking, she made inquiry in that behalf, found that he had done so, caused the residue of whiskey to be delivered to him and again commanded that he leave the premises. One word then brought on another, and whereupon the appellant contends that Wardlaw started unbuttoning his shirt and that she said to him "you wouldn't pull off your shirt to hit a girl," and that he said "no," and "started drawing back;" that she knocked his lick off and reached in a chest of drawers, obtained her pistol so as to compel him to leave the house, and that he jerked her out onto the porch, where she shot him.
There is but little conflict in the testimony, since the state witness Marlene McKee had left the room before the shooting occurred and thereafter only heard the shooting and the appellant doing some cursing, except the conflict in regard to the threat which this witness said was made by the appellant about her intention to kill Wardlaw if he came back into the house the second time, one other witness for the state having repeatedly testified that the statement of the appellant to the effect that "I will kill the son of a bitch" was made immediately after the shots were fired and before he fell to the ground out in the road, and some of the witnesses not having heard such alleged threat at all.
Under the foregoing state of facts, it is contended on behalf of the appellant that since she had requested Wardlaw to leave her home and not return, and that he thereafter returned and refused again to leave after having been further told to do so, the appellant had a right under the law to use such force as may have reasonably appeared to be necessary to eject him from her home, and was therefore entitled to a directed verdict in her favor. But we are of the opinion that it was a question for the jury to determine whether or not she used more force than reasonably appeared to be necessary for that purpose, or whether on the other hand she killed Wardlaw in what reasonably appeared to be in her necessary self-defense, she having sought to justify the homicide on both of these grounds. However, we think that the trial court was in error in not limiting the issue for the jury to the question of manslaughter or justifiable homicide. While malice aforethought is a necessary element in the crime of murder, it does not always follow therefrom that the existence of actual malice at the time of the slaying would necessarily have the effect of rendering a particular homicide a case of murder. A person may be guilty only of manslaughter or justifiable homicide when slaying another even though the accused is mad and is bearing ill will toward his adversary at the time of the killing, if the act is done while resisting an attempt of the latter "to do any unlawful act, or after such attempt shall have failed," if such anger or ill will is engendered by the particular circumstances of the unlawful act then being attempted, or the commission of which is then thwarted, and is nonexistent prior thereto. Each case must depend upon its own facts and circumstances. To constitute murder, the malice must precede the unlawful act which is being attempted or committed by the person killed, where the killing is done in resisting his attempt to do an unlawful act. Williams v. State, 122 Miss. 151, 84 So. 8.
It is stated generally in 26 Am. Jur. 271, Section 170, that: "The fact that the homicide is committed in preventing an unlawful entry into a dwelling may, where the circumstances are not such as to justify the act, reduce the degree of the crime of manslaughter." In the case at bar, even though it may be said that the appellant had extended an invitation for Wardlaw and other men to visit her home, she would nevertheless have the right to revoke such invitation, as she had done so far as he was concerned, under the facts hereinbefore disclosed, and to thereafter deal with him as a wilful trespasser.
We are unable to agree that because the law was being violated in the habitation of the appellant, she should be denied the right to defend or protect it from unwarranted intrusions or trespasses as a home. She had lived there practically all of her life, and though her sins may be as scarlet, the law permits her to have a place of abode from which she may exclude all persons not wanted therein, unless they have entered under lawful right granted by the sovereign itself. Moreover, the latter are not authorized to remain therein except for a lawful purpose after being invited to leave.
Section 2225, Vol. 2 Miss. Code of 1942 (Section 995, Code of 1930), provides that: "Every person who shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any unlawful act, or after such attempt shall have failed, shall be guilty of manslaughter." Here, the said Wardlaw was shot and killed while committing an unlawful act — a wilful and forbidden trespass — and while resisting an attempt of the appellant to eject him from her home. The appellant did not shoot him pursuant to her alleged threat that if he came back to the house she would kill him, but because of what transpired after he reentered the house. Suspecting that perhaps he had returned to get some whiskey which he had left in the house, as heretofore stated, she inquired as to whether such was the case, and upon learning that it was, she caused the whiskey to be turned over to him and again requested that he leave, stating that she didn't want to have any trouble with him, and showing that she had no malicious intent to do him any harm pursuant to such alleged threat, merely because he had come back to the house. And the killing occurred either in the heat of passion because of the fact that he thereafter jerked her out onto the porch while she was endeavoring by a display of her pistol to compel him to leave, or at a time when she claims to have deemed the shooting necessary to her own defense.
We are of the opinion that under the principles announced in the cases of Long v. State, 52 Miss. 23; Williams v. State, supra; Bowen v. State, 164 Miss. 225, 144 So. 230, wherein the court was applying the foregoing statute, the issue of whether or not the appellant was guilty of murder should not have been submitted to the jury but the issue to be determined should have been limited to the crime of manslaughter as requested. To permit the jury to convict of murder under the facts of this case was equivalent to ignoring the right of the appellant to eject Wardlaw from her home, using such force as reasonably appeared to be necessary for that purpose, and also the duty of the jury to convict her of manslaughter, and that crime alone, if they believed that more force was used than reasonably appeared to be necessary, unless it should be true that the jury was warranted in finding from the evidence that the killing was done in what may have reasonably appeared to be her necessary self-defense.
The case must therefore be reversed and remanded for a new trial in accordance with the foregoing views. Reversed and remanded.
SPECIALLY CONCURRING OPINION.
I concur in the reversal of the case upon the asserted grounds but not upon its remand except for sentence. The jury rejected the plea of self-defense and resolved the issue of justification adversely to appellant. She was therefore found guilty of unjustifiable homicide which is either murder or manslaughter. The verdict is for murder, which, under the facts of the case, includes manslaughter. Hughey v. State (Miss.), 106 So. 361. Had the jury found a verdict for manslaughter, we should have allowed it to stand. There seems to be no reason, therefore, why our assent to a conviction for the lesser offense should not stand, and the cause be remanded for sentence only. Oliver v. State, 5 How. 14, 6 Miss. 14; Ex parte Burden, 92 Miss. 14, 45 So. 1, 131 Am. St. Rep. 511; Martin v. City of Laurel, 106 Miss. 357, 63 So. 670; Smithey v. State, 93 Miss. 257, 46 So. 410; Jones v. State, 147 Miss. 85, 113 So. 191. This procedure is uniformly followed in some states. Reynolds v. State, 186 Ark. 223, 53 S.W.2d 224; Brooks v. State, 141 Ark. 57, 216 S.W. 705. Under our statute when there is a valid conviction, an error in fixing the punishment entitles a defendant only to a reversal as to the degree of punishment. 2 Miss. Code 1942, Section 2609. Defendant is in no position to complain since the judgment here is favorable to her. Compare Calicoat v. State, 131 Miss. 169, 95 So. 318. See also Grillis v. State (Miss.), 17 So.2d 525.
It may be that the course here advocated should not be followed in all reversals of convictions of murder, for the only alternative in some cases may be acquittal. But when as here, there was a deliberate homicide not justified as either inadvertent or in the heat of passion, and when jury have found defendant guilty not only of manslaughter but of murder, it should be affirmed as to that degree implicit in the jury's verdict.
A defendant's privilege against former jeopardy should not be enlarged to require the prosecution to be subjected to a similar hazard. To allow appellant a new trial means that she is entitled to have a second jury ratify the present conviction, with the added privilege of seeking an acquittal upon a plea of self-defense which has already been rejected. Upon the record, we have in effect said that she was guilty of manslaughter but must be again convicted before being punished.
I am authorized to state that Justice Griffith concurs in the foregoing views.
CONCURRING OPINION.
I concur in the foregoing views but since they have not received the assent of a majority of the Justices, I was unable to incorporate the same as a part of the controlling opinion written by me herein.