Summary
In Bridges v. State, 197 Miss. 527, 19 So.2d 738, error was predicated on the failure of the instructions for the State to define the term "murder" used therein.
Summary of this case from Bone v. StateOpinion
No. 35671.
November 13, 1944. Suggestion of Error Overruled December 22, 1945.
1. CRIMINAL LAW.
When the entire case is before the jury it need not be charged upon a presumption.
2. HOMICIDE.
In prosecution for assault with intent to murder, instruction that malice is implied from nature of weapon used and that use of deadly weapon in a difficulty and not necessarily in self-defense is evidence of malice was erroneous since there was no need for charge on a presumption that weapon used was deadly was found peremptorily by the court, and charge failed to characterize use of the weapon as deliberate.
3. HOMICIDE.
In prosecution for assault with intent to murder, error in instructing on malice was not prejudicial where evidence was overwhelming that assault was wholly unjustified.
4. CRIMINAL LAW.
Accused charged with assault with intent to murder could not complain of alleged error in failure of instructions for the state to define the term "murder" used therein where accused's instructions followed the language used by the state and some of such instructions defined murder in language of the statute.
5. HOMICIDE.
In prosecution for assault with intent to murder, court did not err in striking out the words "in attempt" from accused's requested instruction ". . . the defendant acted feloniously without authority of law from his deliberate design and with his malice aforethought in attempt to kill and murder . . ."
APPEAL from the circuit court of Jefferson Davis county, HON. J.C. SHIVERS, Judge.
Martin Farr, of Prentiss, for appellant.
Where the evidence fully discloses the circumstances, an instruction that the law presumes malice from the use of a deadly weapon is erroneous.
Walker v. State, 146 Miss. 510, 112 So. 673; Lamar v. State, 63 Miss. 265; Smith v. State, 161 Miss. 430, 137 So. 96; Cumberland v. State, 110 Miss. 521, 70 So. 695; Winchester v. State, 163 Miss. 462, 142 So. 454.
Instructions should embody some hypothesis constituting the offense or elements thereof, directly and positively.
Gates v. State, 160 Miss. 479, 135 So. 189.
The state offered no instruction defining the crime of murder. That the jury was instructed to find the defendant guilty of assault with intent to kill and murder, if the jury believed he intended to kill and murder, gives no guide to the jury as to what constitutes murder. It tells them nothing as to the basic elements of malice aforethought, deliberate design and premeditation. One in the heat of passion, suddenly provoked, may strike or shoot with the deliberate intent at the moment to kill and yet there may be no murder; and yet this man's case was decided by a jury that had no guide before it, no chart or compass.
See Kearney v. State, 68 Miss. 233, 8 So. 292; Hunter v. State, 74 Miss. 515, 21 So. 305; Jackson v. State, 79 Miss. 42, 30 So. 39; Woods v. State, 81 Miss. 164, 32 So. 998; Lofton v. State, 79 Miss. 723, 31 So. 420; Harper v. State, 83 Miss. 402, 35 So. 572; Eaverson v. State, 73 Miss. 810, 19 So. 715.
We call the Court's attention to the refusal of our instruction: "The Court instructs the jury that you cannot find the defendant guilty of any crime higher than that of assault." It is submitted that this refusal was error. We call the court's attention to the fact that no battery was charged in the indictment. The trial court and the district-attorney were confused, it seems, as to the law of simple assault, aggravated assault and assault generally.
Ross v. State, 158 Miss. 827, 131 So. 367; Blaine v. State, 196 Miss. 603, 17 So.2d 549; Mann v. State, 80 Miss. 398, 31 So. 786; Gipson v. State, 38 Miss. 295, 2 Mor. St. Cas. 1345; Staten v. State, 30 Miss. 619; Brimhall v. State, 31 Ariz. 523, 255 P. 165, 53 A.L.R. 231; Williams v. State, 92 Fla. 980, 110 So. 124, 53 A.L.R. 250; 1 Wharton's Crim. Law 1096, citing People v. Benson, 321 Ill. 605, 152 N.E. 514, 46 A.L.R. 1056; 1 Bishop's New Criminal Law, Sec. 795; 4 Am. Jur. Sec. 34.
Paul Farr, of the defense, in his argument, asked the jury, if they found the defendant guilty of anything, to convict him of simple assault. The district attorney, in his closing argument stated: "Paul Farr, counsel for the defendant, asked you to, if you convicted defendant of anything, convict him of simple assault. If you convict the defendant of simple assault, he will be acquitted and Paul Farr knows it." Exception was made to this and the court states in the bill of exceptions that it was "his opinion the district attorney was correct in stating that a verdict of simple assault would be equivalent to a verdict of acquittal." It is most respectfully submitted that both the learned trial judge and the district attorney are in grievous error and such error was very costly to the defendant. In other words, the lower court held that there was no such crime as simple assault. These learned gentlemen seem to be confused as to simple assault, assault, aggravated assault, compound assault, etc. Our statute simply calls it assault, but that embraces simple assault, aggravated assault, compound assault, all depending on the circumstances, as known to the common law.
Under an indictment for an assault with intent to kill, the defendant may be convicted of a simple assault.
Gipson v. State, supra.
A defendant on trial for a felony is entitled to have the law distinctly and precisely stated. If this is not done, it is error.
Staten v. State, supra.
We submit that under these instructions and the positive statement of the district attorney that if they found for simple assault there would be an acquittal, with the sanction of the court, the jury could do nothing else but find the defendant guilty as charged. Not only did the appellant have to carry the burden of the instructions telling them that malice was presumed from the use (not deliberate use) of a deadly weapon when all the facts were in evidence, not only without guide or compass as to what is or is not murder, but in addition to all that, here is a situation where the district attorney, with the sanction of the court, tells the jury, "if you convict this man of simple assault, he will be acquitted."
Greek L. Rice, Attorney General, by R.O. Arrington, Assistant Attorney General, for appellee.
Appellants' first assignment of error is that the court erred in giving the state the following instruction: "The court instructs the jury for the State that malice is implied by law from the nature and character of the weapon used and that the use of the deadly weapon in a difficulty and not necessarily in self defense is in law evidence of malice." This assignment is well taken as our Court has held that where evidence fully discloses circumstances surrounding the alleged assault to kill, an instruction that the law presumes malice from use of deadly weapon is erroneous. Batiste v. State, 165 Miss. 161, 147 So. 318, and the authorities cited by the appellant. However, in the case at bar, this instruction is not reversible error for the reason that the evidence on the part of the state was substantial and overwhelming and, taken with the admissions of the appellant and his brother, who testified to substantially the same facts as did the state's witnesses, with the exception of the cause of the difficulty, clearly establishes the guilt of the appellant.
Harris v. State, 175 Miss. 1, 166 So. 392; Smith v. State, (Miss.), 6 So.2d 134.
The next assignment of error is that the court erred in granting the state an instruction that the jury did not have to know the defendant was guilty before they could convict him. This was not error.
Allgood v. State, 173 Miss. 27, 161 So. 756; Sauer v. State, 166 Miss. 507, 144 So. 225.
The next assignment of error is that the state offered no instruction defining the crime of murder. The state was granted an instruction defining the offense and as charged in the indictment, which contains all of the essential elements of the crime. This is all that is required.
Martin v. State, 163 Miss. 454, 142 So. 15; Code of 1942, Sec. 2011; 4 Am. Jur. 186, Sec. 120.
The next assignment is that the court erred in refusing the appellant the following instruction: "The court instructs the jury that you cannot find the defendant guilty of any crime higher than that of assault." The court committed no error in refusing this instruction as the evidence conclusively shows that the appellant did everything in his power at the time to kill Carl Bridges and if it had not been for timely interference on the part of Barnes holding his brother, Johnny Jack Bridges, and the able defense put up by Carl Bridges in using the ax handle and knocking appellant down and in knocking the knife out of his hand, he would have, more than likely, been killed or suffered great bodily injury.
The next assignment is that error was committed by the court in not sustaining the objection of counsel to the argument of the district attorney which is fully disclosed in the bill of exceptions. It appears from the bill of exceptions that the court made no ruling but merely stated out of the hearing of the jury that it was his opinion that the district attorney was correct in stating that a verdict of simple assault would be equivalent to a verdict of acquittal. It is obvious that a verdict of simple assault would have been an acquittal of the greater crime, the assault with intent to kill and murder, and I submit that this was not error on the part of the district attorney as it was invited by counsel for defendant and the state's attorney had a perfect right to answer it, which he did. Where the improper remarks of the district attorney to the jury on the trial of a criminal case cannot be said to have contributed to the defendant's conviction, the case on appeal will not be reversed on that account.
Jacobs v. State, 103 Miss. 622, 60 So. 723.
The next assignment is that the court erred in refusing other instructions for the defendant, especially the following: "The court instructs the jury that the indictment against the defendant in this case does not charge that the defendant struck Carl Bridges with anything and you are held and bound by the indictment in this case in that regard." Also argued in connection with this instruction is that the court erred in overruling the motion of defendant to strike from the record any and all testimony offered by the state tending to show that there was any battery passing from the defendants, or either of them, towards Carl Bridges for the reason that no battery is charged in the indictment. On this motion the court ruled as follows: "The State has a right to show all the facts, and the instructions of the court will tell the jury what they are to pass on." The main objection appears to be that the evidence was inadmissible for the reason that the indictment did not charge a battery. Our Court has held that it is not necessary under Section 2011, Code of 1942, to charge a battery in the indictment and the charge of an assault with intent to kill and murder is sufficient.
Miller v. State, 53 Miss. 403.
The defendant was not charged in this case with an assault and battery with intent to kill and murder but only with an assault with intent to kill and murder and this is sufficient to sustain the conviction without a battery.
Montgomery v. State, 85 Miss. 330, 37 So. 835; Sauer v. State, supra.
Argued orally by George Martin, for appellant, and by R.O. Arrington, for appellee.
Appellant was convicted of an assault with intent to murder. We need not recount the testimony since it completely justifies the verdict.
The following instruction was given for the state: "The court instructs the jury for the State that malice is implied by law from the nature and character of the weapon used and that the use of the deadly weapon in a difficulty and not necessarily in self defense is in law evidence of malice."
The errors in this instruction are seen at a glance. When the entire case is before the jury there is no need nor right to charge them upon a presumption. Walker v. State, 146 Miss. 510, 112 So. 673; New Orleans G.N.R. Co. v. Walden, 160 Miss. 102, 133 So. 241; Winchester v. State, 163 Miss. 462, 471, 142 So. 454; A.L.I. Model Code of Evidence, Rule 704, Comment (b). Moreover, the instruction is not that the jury may infer malice but that malice is in law implied. The fact that the weapon used is deadly is found peremptorily by the court. And above all the failure to characterize the use of the weapon as "deliberate" is fatal. Winchester v. State, supra.
In a case where guilt is less patent such error would require reversal. However, the evidence is overwhelming that the assault was unprovoked and wholly unjustified and no impartial jury with capacity to think and courage to act could reasonably find otherwise. The record itself discloses that the assault was made with a deadly weapon with a deliberate and expressed intent to kill and murder. Sullivan v. State, 92 Miss. 828, 46 So. 248; Wesley v. State, 37 Miss. 327, 75 Am. Dec. 62.
Error is predicated of the failure of the instructions for the state to define the term "murder" used therein. The need for explanation of technical legal terms is discussed in Martin v. State, 163 Miss. 454, 142 So. 15 (which makes pertinent the strong dissent in Canterbury v. State, 90 Miss. 279, 301, 43 So. 467). If such omission be error, which we do not decide, it is not available to appellant whose instructions follow the language used by the state and some of which define murder in the language of the statute. An instruction sought by appellant completely defined the offense and was allowed by the court after striking out the words "in attempt" in the following context ". . . the defendant acted feloniously without authority of law from his deliberate design and with his malice aforethought in attempt to kill and murder . . ." The amendment did not impair the instruction and appellant ought to have used it as corrected and given. Canterbury v. State, supra.
Other alleged errors have been examined and found either to be without merit or not properly reserved.
Affirmed.