Opinion
No. 35932.
November 12, 1945. Suggestion of Error Overruled December 10, 1945.
1. HOMICIDE.
Where plea interposed in murder prosecution was self-defense and state's testimony showed a deliberate and unjustifiable homicide, while testimony for accused disclosed self-defense, conviction could not be disturbed by the Supreme Court.
2. CRIMINAL LAW.
Refusal of continuance in murder prosecution because of inaccessibility of material witness was not an abuse of discretion where proposed testimony concerned alleged threat by deceased against accused, and accused claimed self-defense against an actual battery.
3. HOMICIDE.
In murder prosecution wherein accused claimed self-defense, instruction that if accused shot deceased when accused was in no real or apparent danger of losing his life or suffering great bodily injury, jury should convict, "this is true regardless of every other fact or circumstance in the case" was not erroneous notwithstanding use of improper quoted language, where trial court had admitted irrelevant testimony regarding "unwritten law" and quoted language probably disabused minds of jurors of influence of such testimony.
APPEAL from the circuit court of Smith county, HON. HOMER CURRIE, Judge.
D.A. McLeod, of Mount Olive, for appellant.
The court erred in refusing to grant the defendant a continuance of this case, on account of the illness of his wife and on account of the absence of Johnny Kilgore, who was at the time in the armed forces of the United States Government, who if present would have testified to numerous threats made by the deceased, just prior to the homicide.
Scott v. State, 80 Miss. 197, 31 So. 710; Watson v. State, 81 Miss. 700, 33 So. 491; Walker v. State, 129 Miss. 449, 92 So. 580; Corbin v. State, 99 Miss. 486, 55 So. 43; Whit v. State, 85 Miss. 208, 37 So. 809.
The court erred in granting to the state the instruction which contained the following language, "This is true, regardless of every other fact or circumstances in the case." This instruction is dangerous and misleading.
Gamblin v. State (Miss.), 29 So. 764; Rogers v. State, 82 Miss. 479, 34 So. 320; Herring v. State, 87 Miss. 628, 40 So. 230.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
There is no merit in counsel's argument as to the court's refusal to continue because of the alleged illness of the wife and her inability to attend and testify, because she did, in fact, appear in the court and testified fully as to the transaction and, so far as the record showed, no harm resulted to her. Her testimony appears in the record and, if believed, supported what was stated in the motion for continuance, so the defendant had the full benefit of her testimony.
See Scott v. State, 80 Miss. 197, 31 So. 710; Watson v. State, 81 Miss. 700, 33 So. 491.
In construing instructions, the court must take all the instructions in the case considered together, one supplementing, modifying or explaining another, and if all the instructions so considered announce the law freely and fairly applicable to the case, the court will not reverse for an omission or obscurity or inadequate statement in a single instruction.
The court instructed the jury for the state that if it believed from the evidence in the case beyond a reasonable doubt "the defendant shot and killed the deceased, Alonzo Prince, as charged in the indictment, at a time when he, the said defendant, was in no real or apparent danger of losing his own life or suffering great bodily injury at the hands of Alonzo Prince, it was their sworn duty to find the defendant guilty as charged in the indictment, and this is true regardless of every other fact or circumstance in the case." The instruction is, of course, to be applied to the evidence, and the defense offered by the defendant and his wife was self-defense in an attempt to make out a case of manslaughter or prove some fact that might be unnatural or not essential to his conviction for the offense charged. The language, "this is true regardless of every other fact or circumstance in the case," should never be used, in my opinion, but that does not mean that it would reverse the case. There must appear in the evidence something that would justify or mitigate the offense independent of the elements embraced in the first part of the instruction. The record here does not present such a case as would make the last part of the sentence erroneous when measured by the evidence and circumstances of the case.
Appellant was convicted of murder and appeals from a judgment imposing a life sentence.
The plea interposed was self-defense. Upon the facts it is enough to state that the testimony for the state showed a deliberate and unjustifiable homicide, and that for the defendant disclosed self-defense. We have no basis for disturbing the verdict on this issue.
The assignments of error are numerous. We shall discuss those only which we deem of sufficient importance. The first assignment attacks the refusal of the trial court to grant a continuance. It is asserted that the case had been once continued on the ground that the defendant's son was a material witness, but being in the armed forces abroad was not accessible. The record does not verify the allegation, but it does appear that the case was carried over from the term at which he was indicted. The additional ground that defendant's wife, a material eyewitness, was not aavilable because of illness was pressed by motion at the succeeding term, together with the matter of the son's absence. The former ground passed out of the case when the wife later appeared in court and testified. We do not think the latter ground a sufficient basis for a contention that the trial judge abused his discretion in denying the motion for continuance. The absent witness was outside the jurisdiction, and there is no showing that he would be available at the next term of the court. His proposed testimony concerned an alleged threat by the deceased against appellant. Such evidence would have been more useful to appellant if he had disclosed a mere overt gesture whose meaning and intent were to be interpreted in the light of such communicated threat. Here, however, appellant seeks to justify his act as being in defense against an actual battery during which he gave ground against an aggressive and continued assault by deceased with a hammer. These considerations make it appropriate to apply the rule as to continuance laid down in Lamar v. State, 63 Miss. 265; Weaver Co. v. Phares, 183 Miss. 735, 184 So. 833, which show that the point was not properly reserved.
Certain errors assigned, which relate to the conduct of the trial, are not reviewed, since the record makes no disclosure of their factual basis. Assignments directed at the alleged error in admitting and excluding testimony have been carefully examined and we find no ground for reversal.
The following instruction was given for the state: "The Court instructs the jury for the State; that if you believe from the evidence in this case beyond a reasonable doubt that the defendant shot and killed the deceased Alonzo Prince, as charged in the indictment, at a time when he the said defendant, was in no real or apparent danger of losing his own life or suffering great bodily injury at the hands of Alonzo Prince; then it is your sworn duty to find the defendant guilty as charged in the indictment; this is true regardless of every other fact or circumstance in the case." Abstractly viewed, the instruction would be bad. Yet, here, the defendant admits killing deceased with a shotgun and the issue is narrowed to his asserted justification of self-defense. The jury could not have been misled thereby. We have repeatedly condemned the concluding phrase "this is true regardless of every other fact or circumstance in the case" and could well wish that trial judges would guarantee against its repetition. Here, however, the trial court admitted extended testimony injecting the so-called "unwritten law," which was irrelevant and must have been prejudicial to the prosecution. The edge of our criticism of this phrase is therefore much dulled by the probable service thereby rendered in disabusing the minds of the jurors of its influence.
We find no reversible error and must affirm.
Affirmed.