Opinion
No. 31129.
April 23, 1934. Suggestion of Error Overruled May 21, 1934.
1. CRIMINAL LAW.
In murder prosecution, empty cartridge shell found at scene of fatal shooting, and which fitted pistol found in room where accused was arrested, held admissible.
2. CRIMINAL LAW.
In murder prosecution, introduction of pistol and evidence that it was found between mattresses of bed in room where accused was arrested held admissible, though officers searched room after taking accused outside the house; it not appearing that contents of room were changed between the arrest and the search.
3. CRIMINAL LAW.
In murder prosecution, evidence held to show that confession was voluntary and not coerced, rendering it admissible.
4. CRIMINAL LAW.
Instruction that if jury believed certain facts which constituted murder, verdict must be, "We, the jury, find the defendant guilty as charged," held not erroneous because prohibiting jury from fixing defendant's punishment at life imprisonment, when considered with another instruction that they could fix punishment at death or life imprisonment.
5. HOMICIDE.
Instruction, otherwise correct, that jury should not hesitate to convict because they are "unable" to say outside of evidence that accused might have been innocent of murder, held not prejudicial to accused.
6. HOMICIDE.
Instruction that, if jury believed accused was guilty of murder, the law will be as fully satisfied with punishment at life imprisonment as with death penalty, held properly refused.
ANDERSON, J., dissenting.
APPEAL from Circuit Court of Hinds County.
Ross R. Barnett and D.C. Enochs, both of Jackson, for appellant.
The objection to the first instruction here complained of is, that the court told the jury, if they found the defendant guilty, it was their sworn duty to inflict the death penalty.
To off-set the highly prejudicial effect of the first instruction for the state, the appellant sought, but was refused, the instruction that in the event the jury should find the defendant guilty, the law would be as fully satisfied with a penalty of life imprisonment as of death.
Mathison v. State, 87 Miss. 739, 770, 40 So. 801-812; Spain v. State, 59 Miss. 19.
By the third instruction for the state the court instructed the jury that "if you find the defendant guilty as charged you may return either one of the following verdicts," the first of which is the one the court instructed the jury, by the instruction complained of, it was their sworn duty to return, which in the third instruction of the court for the state the jury was advised carried the death penalty. This instruction is error.
The appellant denies he made any confession. But we submit, if he did, it could not have been free and voluntary.
Ammons case, 80 Miss. 592, 32 So. 9.
This court has held repeatedly that it is error to give instructions where there is no evidence on which to base them, or where they are inapplicable to the facts.
Hogan v. State, 46 Miss. 274; Co-operative Association v. McConnico, 53 Miss. 233; Kinnarie v. Gregory, 55 Miss. 612; Adams v. Power, 48 Miss. 450; Phillips v. Cooper, 50 Miss. 722.
And this, although they are correct in the abstract.
Parker v. State, 55 Miss. 414; Bowman v. Roberts, 58 Miss. 126; Railroad Co. v. Minor, 69 Miss. 710.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
The state procured an instruction which told the jury that if they believed certain facts beyond all reasonable doubt, that their verdict would be: "We, the jury, find the defendant guilty as charged." This was not error.
Mackie v. State, 138 Miss. 740, 103 So. 379.
Instruction number two known as the "hunting for doubts" instruction was not erroneous.
It is the same as the one considered in Powers v. State, 151 So. 730.
It is not correct to say that the state is indifferent as to which of the two verdicts may be given. It has denounced the penalty of death against murder; it permits the jury to say that another penalty shall be substituted for that prescribed by law as the appropriate one.
Borowitz v. State, 115 Miss. 47, 75 So. 761.
Appellant is not in position to complain of an unlawful search.
Cofer v. State, 158 Miss. 493, 130 So. 511; Polk v. State, 142 So. 480; Lee v. City of Oxford, 134 Miss. 647, 99 So. 509; Barton v. State, 165 Miss. 355, 143 So. 861; Millette v. State, 148 So. 788; Monette v. Toney, 119 Miss. 846, 81 So. 593; Love v. State, 142 Miss. 602, 107 So. 667; Reynolds v. State, 136 Miss. 329, 101 So. 485; Carter v. State, 145 So. 739.
Argued orally by Ross R. Barnett and D.C. Enochs, for appellant, and by W.D. Conn, Jr., for appellee.
This is an appeal from a death sentence on a conviction of murder.
The deceased, Raftakes, was a small retail merchant doing business in the city of Jackson. On November 19, 1933, while he, his wife, Mary Raftakes, his daughter, and Pearl White, a nurse, were in Raftakes' place of business, according to the evidence, the appellant entered therein; Mary and the nurse then left the building, and according to the evidence of Mrs. Raftakes, the appellant asked the deceased to change a dollar for him. The deceased went to his cash drawer, in which there was forty-five dollars, and opened it, whereupon the appellant drew a pistol, shot Raftakes, took the money from the cash drawer, and departed. Mary and the nurse, who were only a short distance away, heard the shot, returned immediately to the store of Raftakes, arrived while the appellant was still there, saw Raftakes on the floor and the appellant with the pistol in his hand taking the money. Other witnesses saw the appellant leave the building. When the police officers arrived on the scene some time after the homicide, they found an empty pistol cartridge on a counter near where the deceased was killed. Thereafter, on the same day, they arrested the appellant in the city of Jackson, in a room in a dwelling house occupied by the appellant and another. When the appellant was arrested he was taken outside the house, and three of the officers then went back to the room without the appellant, searched it, and found an automatic pistol between the mattresses of the bed therein, which appeared to have been recently fired, and which the empty cartridge found at the place of the homicide fitted. The chief of police testified that some time before the trial of the case was begun, he went into the courtroom, and the appellant, who was there, called him, saying he wanted to talk to him. Whereupon, he carried the appellant to a room adjoining the courtroom, who, among other things, then said to him, without any inducement whatever being held out to him so to do, that he was showing Raftakes the pistol and "it went off and killed him;" that he took the money, but did not know why he did so; and that he hid the pistol between the mattresses in the room where he was arrested.
The appellant denied making any confession to the chief of police, and his evidence, if true, established an alibi.
The assignment of errors complains of the introduction in evidence of the empty cartridge, the pistol and where found, the confession, and in the granting of two instructions for the state, and the refusal of the one instruction requested by the appellant.
The empty cartridge shell was clearly admissible in evidence.
We will not pause to inquire into the validity of the contention of the attorney-general that the objection to the introduction of the pistol, and the evidence of where it was found, was not seasonably made, for the evidence was admissible, even though we should hold that the objection thereto was seasonably made. The search was made immediately after, and as an incident to, a lawful arrest. That the appellant was not in the room when the search was made is of no consequence, for its does not appear that the contents of the room were, or might have been, changed in the interval between the appellant's arrest and the search. Cf. Millette v. State (Miss.), 148 So. 788.
The ground of the objection to the confession is that it was coerced. In support of this, evidence was introduced to the effect that the appellant was confined for two or three days in an unventilated, unlighted, unfurnished room, bare of furniture, six by ten feet in size, in a steam-heated building for the purpose of sweating a confession out of him. Had the confession resulted from this confinement, Ammons v. State, 80 Miss. 592, 32 So. 9, 18 L.R.A. (N.S.) 768, 92 Am. St. Rep. 607, would be of interest, but it is clear, from the evidence, that it was not coerced at all, but was, in every respect, free and voluntary.
One of the instructions for the state complained of charged the jury correctly that if they believed certain facts from the evidence, which, if true, constituted murder, "then it will be the sworn duty of the jury to return the following verdict, `We, the jury, find the defendant guilty as charged.'" The complaint is that by this instruction, the jury were prohibited from fixing the appellant's punishment at life imprisonment.
Another instruction for the state, however, charged the jury as follows:
"That if you find the defendant guilty as charged you may return either of the following verdicts,
"1. `We, the jury, find the defendant guilty as charged,' in which event it will be the duty of the court to sentence the defendant to be hanged; or
"2. `We, the jury, find the defendant guilty as charged and fix his punishment at life imprisonment in the state penitentiary,' in which event it will be the duty of the court to so sentence him, or
"3. `We, the jury, find the defendant guilty as charged, but cannot agree upon his punishment,' in which event it will be the duty of the court to sentence the defendant to the state penitentiary for life."
In Mathison v. State, 87 Miss. 739, 40 So. 801, 812, the first of these instructions, though accompanied by the second, was held erroneous; but the court said: "We might not reverse for this error alone; but we point out the fact that it is error, that it may be avoided in future trials."
In Mackie v. State, 138 Miss. 740, 103 So. 379, the two instructions, when read together, were held to correctly announce the law.
The other instruction is one that is frequently given, and reads as follows: "The court instructs the jury for the state that in trying this case you should not hunt for doubts with the view of finding any excuse or apology for your verdict, nor should you indulge in such doubts as are merely conjectural, but the doubts which ought to make you pause and hesitate must be reasonable doubts and they must arise out of the evidence or from the want of evidence in this case. You are not required, under the law of this state, to know that the defendant is guilty of the crime charged against him before you can convict, and you should not hesitate to convict him because you are unable to say, outside of the evidence, that he might have been innocent, but, after considering all of the evidence in the case, if you believe beyond a reasonable doubt, from the evidence, that he is guilty, then you should not hesitate to find that he is guilty and discharge your duty under your oaths and under the law, and say so by your verdict."
This court, while sometimes criticizing the instruction, has uniformly declined to reverse because of it. Smith v. State, 103 Miss. 356, 60 So. 330; Jones v. State, 130 Miss. 703, 94 So. 851; Harris v. State, 135 Miss. 171, 99 So. 754; Floyd v. State, 166 Miss. 15, 148 So. 226, 232; and Powers v. State (Miss.), 151 So. 730. The appellant points out one variation in this instruction from the usual form, and that is these words, "You are unable to say outside the evidence," the usual form being, "You are able to say outside the evidence." The use of the word "unable" was, most probably, an inadvertence, and could have no prejudicial effect on the appellant.
By the other instruction the appellant sought to have the jury charged that: "if you should believe the defendant guilty, from the evidence, beyond a reasonable doubt, then the court further instructs you that the law will be as fully satisfied with the fixing of the punishment at imprisonment in the penitentiary for the life of the defendant as with the fixing of the punishment at the death of the defendant." This instruction was rightfully refused.
Affirmed. Sentence to be executed on Thursday, May 31, 1934.
Anderson, J., dissenting.