Summary
holding that an accused cannot complain of an erroneous jury instruction provided by the trial court at the accused's insistence or request, even if it conflicted with the State's instructions and was erroneous when applied to the facts of the case
Summary of this case from Young v. StateOpinion
No. 29884.
May 9, 1932.
1. HOMICIDE.
Evidence sustained verdict of manslaughter.
2. HOMICIDE. Where accused unlawfully pointed pistol at deceased who was killed as result, court properly refused to submit accidental killing to jury ( Code 1930, section 989).
Court properly refused to submit question of accidental killing to jury, because where accused unlawfully pointed pistol at deceased, who was killed as a result thereof, accused was guilty at least of manslaughter, whether pistol was intentionally discharged or not.
3. HOMICIDE.
Voluntary drunkenness is no defense to crime of manslaughter.
4. CRIMINAL LAW.
Admitting sheriff's testimony that after killing accused said he did not want to talk then because he was too drunk held not reversible error, as forcing defendant to testify against himself.
5. CRIMINAL LAW. District attorney's statement to jury that in his judgment accused was guilty of manslaughter held not error, where there was evidence of malice and no evidence of innocence.
There was evidence from which jury could infer legal malice, it not being necessary that there be actually a willful intent to make a killing murder, since if one deliberately kills another, or with knowledge of its probable consequences intentionally does an act that results in death of another, he does it with "malice aforethought."
6. JURY.
Formal affidavit that accused's counsel had no knowledge of juror's relation to attorney for state and that they would have challenged juror for cause if they had, or testimony under oath, is essential to present matter.
7. JURY.
That juror was first cousin of attorney for state was not legal disqualification.
8. CRIMINAL LAW.
Denial of mistrial because of juror's relation to state's attorney held not error, where accused was clearly guilty of manslaughter, of which he was convicted.
9. CRIMINAL LAW.
Accused cannot complain of conflict in instructions due to erroneous instruction which he procured court to give.
10. HOMICIDE. Where accused was charged with murder and manslaughter, instruction to acquit, unless accused intentionally killed deceased, should not have been given.
Instruction should not have been given, because, even if accused's mind was so impaired by intoxication that he could not form specific intent, the proof showed that he had unlawfully pointed pistol at deceased, which resulted in killing, and that accused was guilty at least of manslaughter.
APPEAL from circuit court of Leflore county. HON. S.F. DAVIS, Judge.
Osborn Witty, and Gardner, Odom Gardner, all of Greenwood, for appellant.
The district attorney, over the vigorous objection of defendant, was allowed by the court to prove that Long told the sheriff that morning, while Long was in custody, that he, Long, "had rather not talk about it." After this objection of defendant was overruled, the district attorney was allowed to repeat his question and obtain the same answer from the sheriff.
This was an error of the lower court, most injurious to the defendant's case. Furthermore, it was a clear cut violation of defendant's constitutional right not to be required to give evidence against himself. Defendant was not required, under the law to tell the sheriff what had occurred, and on the other hand, was guaranteed by the constitution the right to refrain from doing so. The purpose of this testimony, which was brought out by the district attorney was, of course, unquestionably, to prejudice defendant before the jury by raising the inference that when defendant declined to talk, he was impliedly admitting his guilt, and such an inference, that certainly was the only inference the district attorney sought to raise, and did raise, must have been harmful to defendant in the eyes of the jury.
The failure of the accused in any case to testify shall not operate to his prejudice, or be commented upon by counsel.
Section 1530, Code of 1930.
For the district attorney to prove by this witness of high standing and great influence that Long declined to talk out of court was probably more harmful to Long's case than would have been the district attorney's comment upon Long's failure to testify on the trial, if Long had so failed to testify.
This character of evidence, erroneously admitted, has been emphatically condemned by this court.
Bunkley v. State, 77 Miss. 540, 270 So. 638; Boyd v. State, 84 Miss. 414, 36 So. 525.
There are many authorities in other states which lay down a rule of law analogous to the principal for which we here contend.
Merriweather v. Commonwealth, 118 Ky. 870, 4 A. E. Ann. Cas. 1039; Towrey v. State, 163 P.A.C. 331, L.R.A. 1917D; People v. Smith (N.Y.), 64 N.E. 814; State v. Carter, 106 La. 407, 30 So. 895; State v. Diskin, 44 Am. Rep. 448; Commonwealth v. McDermot, 123 Mass. 440, 25 Am. Rep. 120.
Another reversible error committed by the court was in allowing the district attorney, during the closing argument, over the objection of the defendant, to make the following statement to the jury.
My deliberate judgment is that the defendant is guilty of manslaughter, if you take everything the defendant says as true.
This statement of the district attorney was objected to because it gave his opinion, or his judgment as to the guilt or innocence of defendant, and this was improper and constituted reversible error.
State v. Mack, 14 So. 141; State v. Iverson, 68 So. 98; State v. Harper, 78 So. 845.
It is improper to give to the jury conflicting instructions, even though one of them may announce the law correctly. Such instructions leave it to the jury to determine which of two contrary rules they will follow.
Southern Railroad Co. v. Kendrick, 40 Miss. 374; L. N.R. Co. v. Cuevas, 139 So. 397; R.C.L. Vol. 14, page 777; Id. Sec. 45; Id. Sec. 38; Bluedorn v. Missouri Pac. R. Co., 32 A.S.R. 615; Meyer v. Hafemeister, 100 A.S.R. 900; 18 Ann. Cas. 166; 97 A.S.R. 393; 15 L.R.A. (N.S.) 1109; 131 A.S.R. 709; 24 L.R.A. (N.S.) 1185; 45 A.S.R. 859; 64 A.S.R. 322; 32 A.S.R. 615; 23 A.S.R. 465; Ann. Cas. 1913d 674; 33 A.S.R. 249; 101 A.S.R. 579; 66 A.S.R. 450.
The court below refused to grant the following instruction requested by appellant:
The court further instructs the jury for the defendant that, if, after considering all the evidence in this case, there arises in their minds a reasonable doubt as to whether the deceased was killed intentionally by the defendant or by accident, they will promptly find the defendant not guilty.
The court will notice that this instruction which was refused, is based upon the idea that this unfortunate occurrence happened by accident. In other words, it was accidental, certainly not intentional.
Means Johnston and Richard Denman, both of Greenwood, for the state.
There is not a scintilla of evidence in the record that the deceased was killed by accident. The testimony in this case as shown by this record shows that the defendant had made a proposition on two different occasions with Miss Ingram to go to the bedroom with him prior to the difficulty, and it further shows without contradiction that about forty-five minutes before the killing he made a proposition to the other young lady.
The defendant, by the testimony of his witnesses to the effect that the defendant was drunk, that he was incapable of knowing what he was doing at the time of the killing, raised the issue of manslaughter, and if the instruction had been granted the jury could not have considered the issue of manslaughter.
Robertson v. State, 153 Miss. 770, 121 So. 492.
Appellant does not contend that the state introduced any such statement incriminating the defendant in his presence over their objection, for no such thing was done, and all of the authorities cited by appellant on this proposition have no application to the facts of the case at bar.
The question was asked the sheriff on cross-examination and was perfectly right and proper for the purpose of testing the relevancy of the testimony of the sheriff concerning the defendant's condition, intending to show that he knew what he was doing, notwithstanding the sheriff had testified he was drunk, but regardless of that fact, the sheriff testified that he was not even certain that the defendant made such answer, and he certainly could not have materially injured the substantial rights of the defendant in the trial of his case, and if error was inconsequential error.
The statement of the district attorney complained of shows on its face that it was not an expression of his private opinion independently of the testimony, but that it was his judgment that defendant was guilty of manslaughter providing you believe everything the defendant said was true. He had a perfect right to comment on the testimony given by the defendant and to draw conclusions therefrom.
State v. Mack, 14 So. 149; Show v. State, 103 Miss. 640, 60 So. 726.
State's counsel in argument may comment on evidence and deduce inference therefrom and point out witness by name.
Callas v. State, 151 Miss. 617, 118 So. 447.
Prosecuting attorneys may comment upon evidence and draw such conclusions therefrom as they think proper.
Blackwell v. State; Faulk v. State, 59 So. 225; Dunn v. State, 99 So. 154; Griggs v. State, 109 So. 611.
It has been held that the district attorney should be allowed considerable latitude in arguing his case to the jury.
Counsel for appellant say that the trial court tells the jury in six instructions for the state that they can find the defendant guilty of murder, and then in the remaining instructions tells the jury that they may find him guilty of manslaughter, and that the trial court gave the defendant nineteen instructions to the effect that the jury can find the defendant not guilty. This is rather a novel complaint, because our court has always held that where there are elements of manslaughter in a murder trial, that it is not only right but proper for the state to submit instructions of manslaughter, as well as instructions of murder in proper cases, and, of course, upon the defendant's theory of the case they can give instructions to find the defendant not guilty. It occurs to me that such an assignment is frivolous and that appellant is grasping at straws.
Counsel for appellant have cited numerous cases to the effect that it is improper for the court to give to the jury conflicting instructions, even though one of them may announce the law correctly. We do not take issue with counsel for appellant on this proposition, but we say that the instructions are not conflicting, and that the cases cited by appellant do not apply to the case at bar.
All of the instructions on manslaughter with reference to intoxication contain all of the necessary requisites, present the issue, and are not error.
Robertson v. State, 153 Miss. 770, 121 So. 492.
Where the defendant's testimony like that in the case at bar is sufficient to justify a verdict of manslaughter the court should at the request of the district attorney give instructions on manslaughter.
Watson v. State, 72 So. 836, 112 Miss. 16; Higgins v. State, 83 So. 245, 120 Miss. 823; Springer v. State, 92 So. 663, 129 Miss. 589; Holly v. State, 85 So. 129, 123 Miss. 87; Fortenberry v. State, 93 So. 817; Lee v. State, 130 Miss. 852, 94 So. 889.
If the defendant is convicted of manslaughter on evidence which would sustain verdict of murder, but not manslaughter, cannot complain of manslaughter instructions given at the instance of the state.
Goss v. State, 144 Miss. 420, 110 So. 208; Alexander v. State, 145 Miss. 675, 110 So. 367; Blalock v. State, 148 Miss. 1, 113 So. 627; Dalton v. State, 141 Miss. 841, 105 So. 784; Stevenson v. State, 136 Miss. 22, 100 So. 525; Fleming v. State, 142 Miss. 872, 108 So. 123; Everett v. State, 147 Miss. 570, 113 So. 186; Barnett v. State, 146 Miss. 893, 112 So. 586.
Where the defendant has been convicted of manslaughter he may not complain of instructions given on murder.
Jones v. State, 70 Miss. 401, 12 So. 444; McCoy v. State, 91 Miss. 257, 44 So. 814; Douglas v. State, 44 So. 817; Carter v. State, 99 Miss. 435, 54 So. 734; Tabor v. State, 99 Miss. 830, 56 So. 171; Taylor v. State, 148 Miss. 713, 114 So. 823.
Drunkenness is no excuse for crime.
Voluntary intoxication is no defense to crime.
Archibald Kelley v. State, 3 S. M. 518; Gordon v. State, 29 So. 529; Butler v. State, 39 So. 1005; Melton v. State, 124 So. 802; People v. Rogers, 72 Am. Dec. 484; Crawford v. State, 57 So. 393; State of New Mexico v. Claude M. Cooley (N.M.), 140 P. 111, 52 L.R.A. (N.S.) 230; Charles A. Atkins v. State of Tennessee, 105 S.W. 353; 13 L.R.A. (N.S.) 1031; State of West Va. v. James Kidwell, 59 S.E. 494, 13 L.R.A. (N.S.) 1024; Tucker v. State, 79 So. 303; Laws v. State, 42 So. 40; Locklear v. State, 87 So. 708; Williams v. State, 69 So. 376; Brown v. State, 38 So. 268; Henninburg v. State, 43 So. 959; Hill v. State, 64 So. 163; Cagle v. State, 100 So. 318; Whitten v. State, 22 So. 483; Folks v. State, 95 So. 619; Fonville v. State, 8 So. Rep. 688; King v. State, 8 So. 856; Chatham v. State, 9 So. 607; Granberry v. State, 62 So. 52; Peoples v. Rogers, 18 N.Y. 9, 72 Am. Dec. 484; State of Kansas v. Charles Rumble Appt., 25 L.R.A. (N.S.) 376; Davis v. State, 44 So. 561; Hall v. State, 83 So. 513; Englehart v. State, 7 So. 154; Gilmer v. State, 61 So. 377; Homicide, 29 C.J. 1045; Parrish v. State, 36 So. 1012; 8 R.C.L. secs. 106, 108.
Argued orally by F.M. Witty, and A.F. Gardner, for appellant, and by Means Johnston, and W.D. Conn., Jr., for the state.
The appellant, J.J. Long, Jr., was indicted at the November, 1931, term of the circuit court of Leflore county, Mississippi, for the murder of Elmer Stowers, and convicted of manslaughter, and sentenced to five years in the penitentiary, from which he appeals.
The appellant says that he was engaged in farming and lived alone, being a single man; that, prior to the killing, Stowers approached Long in a barber shop and asked him what he was going to do Tuesday night, to which Long replied "nothing, why," and Stowers stated that he wanted to bring out some girls and some liquor, and that Long told him to go ahead. On the night of the killing, Tuesday, Elmer Stowers, with his friend Ben Kinney, brought two young women and some liquor to Long's residence; being driven to the place and accompanied by an Italian, Rustici, called in the record "the dago." Prior to reaching Long's house, the parties had procured some coca cola and had drunk some liquor. Apparently, Long had forgotten the date, for when they arrived at his house he was preparing to retire; it being then a few minutes before ten p.m. After entering Long's residence, the parties and the appellant drank more liquor; the appellant drinking more than the others. They listened to the radio and danced some, and the appellant then fixed a room for Kinney and one of the young women, and they went into this room and went to bed. Long had taken his pistol from under the pillow at the time of preparing this bed and laid it on a dresser in the room. Later, Long made efforts to date the other woman, who seemed to have been Stowers' friend, and she rejected his propositions. They then returned to the living room and had a game of cards, the appellant in the meantime having become very drunk, as had also others of the party. Kinney and the woman with him had gotten up and returned to the living room, and the women expressed desires to go home as it was then approaching one o'clock. The appellant had returned to the bedroom where he left his pistol, procured same, and the keys to the car operated by Rustici, and he and Rustici went into the bathroom near the living room where most of the parties were, after having agreed that they would not let the girls leave until they submitted to their wishes. The appellant then went into the living room with the pistol and stated to one of the women that nobody could leave until they got ready for them to leave, and asked which she was going to bed with, he or the dago. Some one motioned the negro servant who was present waiting on the appellant to take the pistol away from the appellant, and the negro approached, but the appellant pushed him away, and the negro did not secure the pistol. The deceased, Stowers, then requested Long, the appellant, to put away the pistol, which he did not do. Stowers then stated to Long, "You have a gun, and I haven't anything, but I have more nerve than you have," and took a step toward Long, and Long then fired the pistol killing Stowers practically instantly. Rustici, at the time this shooting took place, was in the bathroom vomiting, and did not hear anything, or know what had happened until he was told. After the first shot was fired, killing Stowers, the appellant turned the gun away and fired a second shot into the floor.
After the shooting, Rustici, Kinney, and the two women left. The negro servant and the appellant, Long, then got the deceased into a car and carried his dead body to Itta Bena, to the home of appellant's brother-in-law, who put the appellant to bed, and phoned for the sheriff. The sheriff came out that night and got the appellant up and started an investigation of the matter. The appellant partially told the sheriff how it happened, but stated that he did not then care to talk about it as he was very drunk. The sheriff was introduced as a witness, and this testimony was objected to. The sheriff, after putting Long back to bed, went to Long's residence to investigate the situation there, and found Long's pistol on the dresser with two empty chambers, and the pistol was cocked over another loaded cartridge.
There is but little conflict in the version of the different witnesses as to what transpired. It appeared that Long and Stowers, both unmarried men, had been friends for about five years, and their relations were intimate. Long testified that he did not remember anything that happened between the time he and the young woman returned to the room after they had been on the gallery where he made the propositions to her, and the time of the killing; that he had only two glimpses of things that happened in the interim. The killing, as stated, occurred about one-thirty a.m. and there must have been an hour or an hour and a half time in which he was pretty well intoxicated. Some witnesses testified that he knew what he was doing, and others that he was very drunk. Long himself testified that he did not know anything, except that he remembered seeing Kinney and one of the young women in bed, and remembered some one vomiting in the bathroom.
The appellant's defense was that he killed Stowers unintentionally, that it was an accident, that there had been no words between them, and that they had been strong friends for a long while; and the contention here is that the evidence is insufficient to sustain a verdict of manslaughter, and that the court refused to submit the theory of accidental killing to the jury. That one of the jurors was related to one of the prosecuting attorneys is contended, and that this was not known to the defendant until the motion was made to quash the panel prior to the verdict, and also that the district attorney stated in his closing argument that it was his deliberate judgment that the killing was manslaughter under the evidence in the case.
We think the evidence was ample to support the verdict of manslaughter. Indeed, we think the jury reached the correct conclusion in finding the verdict of manslaughter, although there is evidence to support a verdict of murder, which, if acted upon, might be affirmed.
There is no theory of accident which can be reasonably entertained upon the proof in this case. Section 989, Code of 1930, provides that:
"The killing of any human being by the act, procurement, or omission of another shall be excusable:
"(a) When committed by accident and misfortune, in lawfully correcting a child or servant, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent;
"(b) When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation;
"(c) When committed upon any sudden combat, without undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel or unusual manner."
Whether the appellant intended to fire the gun or not, it was fired unlawfully if he pointed the gun at the deceased. He was clearly not doing a lawful act, and his conduct was not lawful in what he was doing at the time, and throughout the whole proceeding. The statutes of the state make it a crime to point a gun at another, except in the discharge of official duty or in necessary self-defense. The pointing of the gun in the case at bar was not in self-defense, and not in the discharge of official duty, and was not for any lawful purpose. It was distinctly and clearly an unlawful act; and, as the killing resulted from the pointing of the gun, whether discharged intentionally or not, it would make the appellant guilty, at least, of manslaughter. When a person is doing an unlawful act, or doing a lawful act in an unlawful manner, and the doing of the act results in the death of another person, the result is not excusable or justifiable; and if not malicious or premeditated, or done under circumstances showing a disregard for social duty, or bent on mischief, it would amount to manslaughter.
It is no defense to a crime, so far as the manslaughter feature is concerned, that the party was so drunk, if he was in fact so drunk, as to not know the nature of the crime he was committing. His being drunk was his voluntary act. He deliberately and purposely drank the liquor, and prepared and consented for the party at which the liquor and women were to be used. In no circumstances could he be justified in placing himself in such intoxicated condition that he would not know the nature of his act, and then set up his voluntary act in bringing about this condition as a justification or excuse of what he did.
This court has frequently decided that voluntary intoxication is no defense to a crime, unless a specific intent is necessary to constitute crime, and that a person cannot take advantage of a situation he has placed himself voluntarily in. Melton v. State, 155 Miss. 659, 124 So. 802; Butler v. State (Miss.), 39 So. 1005; Gordon v. State (Miss.), 29 So. 529; Kelly v. State, 3 Smedes M. 518, and decisions of other states to the same effect.
It is urged that it was error to permit the sheriff to be examined as to statements made by the appellant to the sheriff, on the morning of the killing, at Itta Bena. The sheriff had testified that the appellant had a splendid reputation for peace in the community in which he lived. He was asked as to the statement by the appellant that he would rather not talk about the matter just then, as he was too drunk; and the objection to this statement was overruled; it was admitted, and the sheriff's recollection was that the appellant started to tell him about how the matter occurred, and then said he preferred not to talk about it as he was too drunk.
It is urged that admitting this evidence was equivalent to forcing the appellant to testify against himself. We do not think so. The appellant had the right to refuse to talk, and it is not reversible error for an officer to ask a man about a transaction in which he is involved, and to state that the man declined to discuss the matter.
We do not see any harm that could result to the appellant from declining to talk under the admitted fact that he was then drunk; at least, intoxicated to such an extent that his mind might not be clear. The jury is composed of men of common sense, and they well know that a person in that condition would be disinclined to talk when his recollection was clouded by intoxication. Certainly, it is not reversible error in this case.
It is objected that the court erred in permitting the district attorney, over objection, to state that his deliberate judgment was that the defendant was guilty of manslaughter, and, when the court declined to exclude it, he repeated this statement. This statement was within the limitation of legitimate argument. While it might be more prudent and better ethics to draw inferences, without stating his personal opinion, from the testimony, it was permissible for him to state his conclusions to the jury. The very purpose of an advocate is to help the jury draw conclusions from the evidence and to make suggestions of what is a proper conclusion, and to give such reasons as occur to counsel as to what conclusions should be so drawn.
In the case at bar, there was evidence from which the jury could infer deliberate malice; that is, malice known as legal malice. It is not necessary that there be actually a willful intent to make a killing murder; but if a man deliberately kills another, or does an act resulting in killing another, with knowledge of its probable consequences, and intentionally does such act, he does it with malice aforethought.
While the jury could have found a verdict of murder, it is manifest from all the testimony that the appellant's mind was largely, if not entirely, overcome by liquor. The frank admission by the district attorney that in his judgment manslaughter was the proper verdict operated favorably under the facts in this record to the appellant, because there is no testimony in the record from which the jury could find he was innocent.
It is also argued that the court erred in overruling the motion for a mistrial and a venire de novo, because the juror, Trusty, was related to the attorney, Mr. Denman. The motion was not formally made and sworn to, but was dictated into the record, in which it was stated that the juryman, J.E. Trusty, was related to Richard Denman, one of counsel for the state; being a first cousin. The relationship was proven on this motion, but Denman's recollection was that counsel for the appellant did not ask as to the relationship, and that the juror did not deny his relationship. One of the attorneys for the appellant testified to a contrary recollection. It was shown that the attorney for the state knew of the relationship, but only one of the four attorneys representing the appellant testified on the matter, and the appellant himself did not testify upon this proposition. It was necessary for the attorneys to make formal affidavit that they did not have such knowledge, and that, if they had had such knowledge, they would have exercised the right of peremptory challenge, or should have taken the stand and testified upon it before the court. The relationship of the juror to one of the attorneys in the case is not a legal disqualification, and a challenge for cause could not be maintained because of such relationship.
Under the evidence on this point, and under the facts on the merits of the case, it cannot be reversed for this alleged error.
In other words, in the first place, the trial judge was present and heard what was asked the jurors, and therefore he was in a better condition to pass upon the recollection of counsel as to what occurred then, and we cannot reverse him because thereof; and, in the second place, on the facts in this record, we do not think the defendant could be rightfully acquitted, and if the cause was reversed, the jury would be likely to, and should in our opinion, sustain another conviction of manslaughter; and it would therefore be doing a fruitless thing to reverse this cause.
We have carefully examined the instructions granted the state, and we think they are proper and free from objection applied to the facts of this cause.
There is one instruction for the defendant that might be in conflict with the state's instructions; but, if it is in conflict, it is erroneous when applied to the facts of this cause, and the appellant could not complain of error which the court committed at his instance and request. This instruction reads as follows: "The court instructs the jury for the defendant that unless satisfied beyond a reasonable doubt to a moral certainty, that the defendant intentionally killed the deceased as charged in the indictment, then it is the duty of the jury to promptly find the defendant not guilty."
If the defendant killed the deceased unlawfully, as the evidence shows he did, it would be immaterial that his mind was impaired by intoxication to a degree that he could not intentionally do it; if he destroyed his capacity to intend the consequences that resulted, and if the act from which the killing flowed was unlawful, it would be manslaughter.
If the instruction was intended to reach the murder charge in the indictment, it might be proper, but the indictment not only charges murder, but also manslaughter, and the instruction is incorrectly drawn as applied to the facts of this case.
We find no reversible error in the record, and the judgment is affirmed.
Affirmed.