Opinion
No. 38854.
November 2, 1953.
1. Homicide — murder — evidence sustained conviction.
Evidence sustained conviction of murder.
2. Criminal procedure — trial — instructions — inference from use of deadly weapon — not prejudicial.
The giving of two incorrect instructions for State relating to an inference of malice from use of deadly weapon did not result in prejudice to defendant when considered along with numerous instructions granted defendant. Rule 11, Rules Supreme Court.
3. Criminal procedure — trial — evidence — alleged prior threats by deceased — testimony in rebuttal.
In murder prosecution, where defendant and her husband testified with reference to alleged prior threats by deceased, it was not error in permitting rebuttal testimony offered by State to impeach such testimony with reference to alleged prior threats by deceased.
Headnotes as approved by Ethridge, J.
APPEAL from the circuit court of Pearl River County; SEBE DALE, Judge.
Morse Morse, Poplarville, for appellant.
I. The Court should not have submitted by instruction the question of murder. At the most it could only be manslaughter. Bailey v. State, 202 Miss. 222, 31 So.2d 123; Bowen v. State, 164 Miss. 225, 144 So. 230; Dye v. State, 127 Miss. 492, 90 So. 180; Guest v. State, 96 Miss. 871, 52 So. 211; Williams v. State, 98 So. 242.
II. The Court erred in giving the instruction with reference to the presumption of a deadly weapon. When the facts and circumstances are disclosed the presumption of malice from the use of a deadly weapon in homicide is inapplicable, and the case is to be decided from the facts in evidence. Batise v. State, 165 Miss. 161, 147 So. 318; Busby v. State, 177 Miss. 68, 170 So. 140; Done v. State, 202 Miss. 418, 32 So.2d 206; Hawthorne v. State, 58 Miss. 778; Holmes v. State, 151 Miss. 702, 118 So. 431; Johnson v. State, 151 Miss. 702, 118 So. 431; Jones v. State, 178 Miss. 636, 174 So. 546; Lamar v. State, 63 Miss. 265; Smith v. State, 161 Miss. 430, 137 So. 96; Walker v. State, 146 Miss. 510, 112 So. 673.
III. The State should not have been permitted to attempt to impeach defendant on matters which were immaterial. Barnes v. State, 152 Miss. 250, 119 So. 172; Bell v. State, 38 So. 795; Cannon v. State, 57 Miss. 147; Dunk v. State, 84 Miss. 452, 36 So. 609; Gardner v. State, 145 Miss. 215, 110 So. 589; Jeffries v. State, 77 Miss. 757, 28 So. 948; Jones v. State, 180 Miss. 210, 177 So. 35; Kehoe v. State, 194 Miss. 339, 12 So.2d 149; Kennedy v. Aron, 179 Miss. 458, 176 So. 127; Lanham v. Wright, 164 Miss. 1, 142 So. 5; Patton v. State, 209 Miss. 138, 46 So.2d 90; Walker v. State, 151 Miss. 862, 119 So. 796; Whitt v. State, 210 Miss. 817, 50 So.2d 385; Williams v. State, 73 Miss. 820, 19 So. 826.
Joe T. Patterson, Asst. Attorney Gen., Jackson, for appellee.
I. The proof in the case at bar is highly conflicting and, therefore, appellant's guilt or innocence of the crime charged was properly submitted to the jury for their determination. White v. State, 49 So.2d 259.
II. To make a homicide justifiable on the grounds of self-defense, the danger to the slayer must be either actual, present, or urgent, or the slayer must have reasonable grounds to apprehend a design on the part of the deceased to kill him or to do him some great bodily harm, and, in addition to this, there was imminent danger of such design being accomplished; and hence mere fear, apprehension, or belief, however sincerely entertained by one person that another designs to take his life or do him some great bodily harm and yet this will not justify the former in taking the life of the latter party. A party may have an apprehension that his life is in danger, and believe the grounds of his apprehension just and reasonable, and yet he acts at his peril. He is not the final judge; the jury may determine the reasonableness of the ground upon which he acted. Jones v. State, 58 So.2d 655; Robinson v. State, 49 So.2d 413.
III. The instructions granted the State were properly granted. Hughes v. State, 207 Miss. 594, 42 So.2d 805.
IV. The rebuttal testimony on the part of the State was not an attempt to impeach the testimony of appellant on matters which were immaterial but went directly to the credibility not only of the appellant, but of her husband, as witnesses, and, therefore, was properly admitted by the trial court.
Appellant, Mary Jackson, was convicted in the Circuit Court of Pearl River County of the murder of Ozella Robertson, and was sentenced to life imprisonment in the state penitentiary. (Hn 1) Appellant argues that she could only have been guilty of manslaughter, but we cannot agree. The only two eyewitnesses other than appellant testified for the State, and if believed they made out a case of murder. The jury accepted this version. Moreover, appellant did not request an instruction limiting the jury to a finding of guilty of manslaughter. The issue of self-defense was amply submitted on the instructions.
(Hn 2) We do not approve the two instructions given the State with reference to an inference of malice from the use of a deadly weapon, but when they are considered along with the numerous instructions granted appellant, there was no prejudicial error in this respect. Supreme Court Rule 11 (1953); 2 Alexander, Miss. Jury Instructions (1953), Sections 4433-4435, 3148. (Hn 3) Nor was there any error in permitting the rebuttal testimony offered by the State, which was designed to impeach the testimony of appellant and her husband with reference to alleged prior threats by deceased.
Affirmed.
McGehee, C.J., and Hall, Holmes and Arrington, JJ., concur.