Opinion
No. 32271.
October 5, 1936.
1. HOMICIDE.
Where deceased as aggressor in flight struck defendant with stick, and defendant cut deceased with knife, evidence in murder prosecution that after deceased dropped stick defendant followed and continued to cut deceased when deceased was wholly unarmed held to justify conviction of manslaughter.
2. HOMICIDE.
Defendant who was tried for murder and convicted of manslaughter held not entitled to complain of instructions authorizing conviction of murder.
APPEAL from circuit court of Sharkey county. HON.E.L. BRIEN, Judge.
John B. Gee, of Midnight, for appellant.
At the conclusion of the testimony offered by the state, and after the state rested its case, the defendant moved the court to exclude the evidence offered by the state and to direct a verdict to acquit the defendant. That motion should have been sustained.
The state failed to prove murder as laid in the indictment; the state failed to prove manslaughter as an alternate to murder as provided by statute; the state failed to prove an action by the appellant other than a complete self-defense; the state failed to establish a motive.
It is testified to by both the state and defense witnesses that the deceased, Annie Bridges, was the aggressor, and that she attacked the appellant with a deadly weapon; that deceased had first invited the appellant out to do battle; that appellant had ignored her challenge and remained in the room in which she was at the time of such challenge for as much as fifteen minutes; that she finally went on the porch to see if her husband was coming, and that she was immediately, without having made any overt act towards deceased, attacked by the deceased with a deadly weapon.
We respectfully submit that in granting the several instructions offered by the state, which instructions were predicated on murder, proof appearing in the evidence were not warranted, and the learned circuit court erred in granting those instructions.
Houston v. State, 78 So. 182; Strahan v. State, 108 So. 502; Gaddis v. State, 110 So. 691; Wesley v. State, 120 So. 918; Watson v. State, 122 So. 189.
An instruction in the absence of evidence on which to predicate it is erroneous, and such instruction is fatal if by any means it might influence the jury.
Allen v. State, 66 Miss. 385; Prince v. State, 93 Miss. 263; 33 So. 289.
The appellant made out a clear cut case of self-defense, and her testimony is corroborated in every detail by both state and defense witnesses. There is no conflict of evidence. The statement of the appellant being uncontradicted that the defendant was in actual danger, it then became the duty of the court to discharge the defendant.
Gray v. State, 158 Miss. 266; Waters v. State, 122 So. 189; Strahan v. State, 108 So. 502; Gaddis v. State, 110 So. 691.
Webb M. Mize, Assistant Attorney-General, for the state.
The court has held in a long line of decisions that there is no reversible error in giving instructions on murder where appellant was only convicted of manslaughter.
Gregory v. State, 152 Miss. 133, 118 So. 906; Carter v. State, 99 Miss. 436, 54 So. 735; McCoy v. State, 91 Miss. 257, 44 So. 814.
Under section 996 of the Code of 1930 we think that appellant was correctly convicted of manslaughter.
Dalton v. State, 141 Miss. 841, 105 So. 784.
Appellant, Isabella Joyce, was indicted and tried on a charge of murder and was convicted of manslaughter, and from this conviction and the sentence imposed, this appeal was prosecuted.
Shortly before the fatal difficulty occurred, the appellant and the deceased were in adjoining rooms, from each of which a door opened onto a front porch extending entirely across the front of the two rooms. While these parties were in these separate rooms a controversy arose between them, and shortly thereafter they met on the front porch near the doors of the respective rooms of the house; a fight immediately began in which the evidence tends to show that the deceased was the aggressor. There is testimony for the state which tends to show that when the fight began the deceased was armed with a stick and the appellant with a knife; that the deceased struck the appellant two blows with the stick as they grappled with each other; that appellant cut the deceased on the arm and she dropped the stick, and that after the deceased dropped the stick the appellant backed her to the edge of the porch and there continued to strike and cut her with the knife. The deceased died shortly thereafter on the porch.
The appellant's testimony tends to show that she acted in self-defense throughout the difficulty, and on appeal she contends, first, that a peremptory instruction requested by her should have been granted; and, second, that the court erred in granting instructions authorizing the jury to convict her of murder.
Upon the state's evidence to the effect that the appellant followed the deceased after she had dropped the stick, and continued to cut her when she was wholly unarmed, we think the conviction of manslaughter was justified, and that no error was committed in refusing the peremptory instruction.
The appellant cannot complain of the giving of instructions authorizing a conviction of murder, since she was acquitted of murder and is, therefore, presumed not to have been prejudiced by such instructions. Gregory v. State, 152 Miss. 133, 118 So. 906; Carter v. State, 99 Miss. 435, 54 So. 734; McCoy v. State, 91 Miss. 257, 44 So. 814. The judgment of the court below will therefore be affirmed.
Affirmed.