Opinion
No. 33504.
April 10, 1939. Suggestion of Error Overruled June 5, 1939.
1. HOMICIDE.
In homicide prosecution for death resulting from a fight, evidence that difficulty arose in regard to a former charge against defendant connected with an automobile theft was admissible to show a state of mind or motive.
2. HOMICIDE.
In homicide prosecution for death resulting from a fight, evidence that defendant carried tools in truck which he was employed to drive was improperly introduced but did not warrant reversal of conviction where no weapons were found at place of fight, and fight took place several feet from truck.
3. HOMICIDE.
Evidence sustained conviction for manslaughter for death resulting from a fight.
4. HOMICIDE.
The sentence for manslaughter should be controlled by the facts of the case and should not be arbitrary.
5. HOMICIDE.
The trial court has a wide judicial discretion in sentencing a defendant found guilty of manslaughter, and though the jury's recommendation should be considered and should have weighty force, it is not controlling.
6. HOMICIDE.
Sentence of 17 years in the state penitentiary for manslaughter for death resulting from a fight was excessive under evidence and verdict asking the mercy of the court, but Supreme Court would not remand case for resentence, but would leave matter of correcting severity of sentence to the governor.
APPEAL from the circuit court of Lincoln county; HON. J.F. GUYNES, Judge.
E.C. Barlow and Edward L. Womack, both of Brookhaven, for appellant.
The court erred in admitting the testimony of J.B. McGhee, and Albert Zachary, relative to a charge that had been made against appellant, in the justice of peace court, charging him with grand larceny long prior to the alleged homicide. The state offered this testimony, or evidence, and it was permitted over the objection of appellant, presumely for the purpose of showing motive, but it could have no connection with the alleged homicide. It is inconceivable that a prosecution which terminates favorably to the appellant and in which the testimony complained of shows that the deceased took no great part, could furnish the animus sufficient to withdraw and to impel appellant to feloniously kill the deceased several months later, especially in view of the fact that the record shows that one of the attorneys here representing the appellant and the same attorney who was first called into this case and represented appellant all the way through was the attorney who was employed to prosecute this appellant in the grand larceny case in the justice of peace court. There is certainly no ill feeling between the appellant and this attorney when, although the attorney prosecuting in that case was the one which appellant turned first to when he found himself charged with this crime. There was no more reason why Mr. Moak's activity in the grand larceny case would furnish a motive for Nick McCaffery to kill him than there was while Mr. Barlow's activity in the same case would furnish the same sinister motive, and the record also shows that on the day when the grand larceny case came on for a hearing the defendant and the deceased ate dinner together. The record also shows that the defendant voted for the deceased against the defendant's own brother-in-law in the last election for constable. The only motive that this testimony shows is the sinister motive, to the state by the district attorney and the hired prosecutor to prejudice the jury against this defendant, and prevent his having a fair and impartial trial, by introducing this evidence that the appellant had been formerly charged with a felony. This was clearly a violation of numerous holdings of this court.
Whitlock v. State, 6 So. 237; Brown v. State, 17 So. 278, 72 Miss. 997; Benoit v. State, 60 So. 137, 107 Miss. 218; Collins v. State, 64 So. 373, 106 Miss. 613; Baygents v. State, 110 So. 114, 144 Miss. 442; McLain v. State, 116 So. 533, 150 Miss. 159; Willoughby v. State, 122 So. 757, 154 Miss. 653, 53 A.L.R. 1319; Floyd v. State, 148 So. 226, 166 Miss. 15; Morris v. State, 16 Miss. 762; Slayslon v. State, 58 So. 977, 102 Miss. 101; Dedeaux v. State, 87 So. 664, 125 Miss. 326; Jearney v. State, 8 So. 292, 68 Miss. 233.
The evidence in this case is insufficient to support a verdict finding the defendant guilty of manslaughter.
Testimony of the doctor after his findings of the autopsy was admitted by the court over the objection of the appellant showed that the autopsy was performed several months after the death of the deceased, and after the body had become decomposed to a large extent, and was performed upon the body not shown to have been that of R.E. or Ed Moak. It is apparent from the doctor's entire testimony on both direct and cross-examination that he gave one opinion as to the cause of death at the habeas corpus hearing, and another and different opinion at the trial before the jury, neither opinion showing that any felonious act was done by this appellant. But on the contrary Dr. Arrington testified on cross-examination that a man of the type of R.E. (Ed) Moak should merely get mad, that might be sufficient to produce a cerebral hemorrhage and cause death. The doctor testified positively at the trial before the jury that there was no fracture of the skull, that R.E. Moak died as a result of a cerebral hemorrhage, that a man of the weight, build, age, complexion, and habits of R.E. Moak could have died from this cause without there having been any fight and without his having been struck by this appellant.
The testimony of the other witness for the state merely shows that this appellant and the deceased were engaged in a sudden combat with no weapons used, without any undue advantage being taken, and there is no proof that appellant struck the deceased with anything other than his hands.
Herring v. State, 84 So. 699, 122 Miss. 647.
In the application of circumstantial evidence to the determination of a case, the utmost caution and vigilance should be sued.
Algheri v. State, 25 Miss. 584.
The court erred in overruling appellant's motion for a directed verdict of acquittal at the close of the state's testimony because the state had utterly failed to prove that the deceased came to his death as a result of any felonious act or procurement of the appellant, but the state's own testimony at that time showed beyond a reasonable doubt that he was not guilty of either manslaughter or murder, but showed that if deceased came to his death as a result of an encounter of appellant it was an excusable homicide only, within the definition of subsection C of section 989 of Mississippi Code of 1930, and the appellant was then and there entitled to a directed verdict in his favor as there was no evidence of a felonious homicide to be submitted to the jury.
We submit that the court erred in permitting the witness Bailey Parsons to testify over the objection of the appellant that some days previous to the alleged homicide he, the witness, had seen in appellant's truck a tire tool and a hammer. There is no testimony to show that such implements were in the truck on the day of the difficulty and there is no testimony that the deceased met his death as a result of being struck with a hammer or a tire tool, and such testimony was calculated to, and did, prejudice the jury against this appellant.
We submit to the court that the court below erred in permitting the witness S.B. Spencer to testify from the mayor's docket of the Town of Bogue Chitto, as to offenses charged against the appellant for other crimes and misdemeanors which he had pleaded guilty and paid a fine. This testimony was highly improper for the reason that this appellant was on trial for the crime of murder and the offenses testified to by the witness S.B. Spencer all occurred long before the alleged homicide and had no connection therewith and were not competent to show motive, or for any other purpose. They were not proper to be introduced against this appellant for the record shows that this appellant did not deny having been previously convicted of these misdemeanors according to the rule as laid down by this court in the case of Collier v. State, 106 Miss. 613, 64 So. 373.
The general rule is that the evidence must be confined to the issue, and that on the trial of a person for a particular offense the state cannot aid the proof against him by showing that he committed other offenses.
Whitlock v. State, 6 So. 237.
We are convinced that the court should have granted the appellant's motion for a directed verdict of acquittal at the close of the entire case for, taking the record by the four corners and reviewing it as a whole, there is nothing in the case to warrant a jury in convicting the appellant of the crime of manslaughter; other than the appellant's own testimony there is no testimony showing or tending to show who was the aggressor in the difficulty, no testimony showing or tending to show the details of the fight, who provoked the difficulty or anything else connected with the encounter.
Godwin v. State, 13 So. 112; Johnson v. State, 30 So. 39; Leverett v. State, 73 So. 273, 112 Miss. 394; White v. State, 71 So. 425; Huston v. State, 117 Miss. 311, 78 So. 182; Weathersby v. State, 165 Miss. 207, 147 So. 481; McCrory v. State, 25 So. 671; Kelly v. State, 147 So. 487; Henderson v. State, 180 So. 89; Smith v. State, 23 So. 260, 75 Miss. 452; Patterson v. State, 23 So. 647; Lucus v. State, 67 So. 851, 109 Miss. 82; Blalock v. State, 31 So. 105, 39 Miss. 517; Hill v. State, 49 So. 145; Clark v. State, 35 So. 188; Waller v. State, 44 So. 845; McNeil v. State, 76 So. 765.
We submit that this case should be reversed and this appellant discharged, and we further submit that the jury who tried the case certainly felt the weakness of this case when they reported a verdict of "We the jury find the defendant guilty of manslaughter and especially ask the mercy of the court," and certainly the jury did not expect or neither intended that this appellant would be sentenced to seventeen years in the state penitentiary as the result of that verdict. But in view of the verdict of the jury and the seventeen year sentence, we think and submit that the sentence was in keeping with the state's attitude throughout the trial, and is shown in the motion for a new trial.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
When the appellant was arrested and first questioned he stated that the origin of the difficulty grew out of a prosecution against him for stealing an automobile, in which prosecution the deceased, Ed Moak, was very active. It is said that the court erred in allowing the justice of the peace, McGehee, and the witness Albert Zachary to testify that an affidavit had been made in the court of the justice of the peace charging appellant with the crime of grand larceny. At the time this testimony was offered the evidence connecting appellant with the killing was wholly circumstantial. In other words, the state had shown that Moak was dead; that he came to his death through some criminal agency and all this was coupled with the admission of appellant that he had had a difficulty with him in which he had used his hands and his feet. This court has held that any circumstances largely tending to show motive are competent.
Sauer v. State, 166 Miss. 507, 144 So. 225.
The defendant, having admitted that the difficulty arose over the deceased's charge that appellant had stolen an automobile, we submit, on the authority of the Sauer case, supra, that it was admissible to show that a prosecution had actually been started against appellant and that the deceased was active in that prosecution. The court has also said that events which lead up to and are clearly helpful to an understanding of the main transaction are admissible as explaining what would otherwise be unexplained.
Carter v. State, 162 Miss. 263, 139 So. 618; Marley v. State, 109 Miss. 717, 68 So. 770; Self v. State, 174 So. 44.
Appellant says that it was improper to allow this character of evidence because it ended to show that he may have been guilty of another and different offense than that for which he was being tried. We admit that this was evidence of another and different offense. Nevertheless, we submit that it was competent to show it because it was out of the prosecution in this other offense that the animus which prompted the offense at bar arose, and appellant has no one to blame but himself for this matter.
In this case, according to the state witnesses, the defendant admitted, pointing to his feet, that he had used everything that he had. Assuming that he used his fists to knock the deceased down and then had used his feet to stamp him into insensibility, we still submit that this was an unnecessary killing. In the evidence much stress is laid on the fact that deceased was past middle age, was possibly overly fat for his height, was suffering from high blood pressure and was addicted to drink and that it would take less to rupture a blood vessel than would be the case with an ordinary man. Of this appellant can claim no benefit.
Quinn v. State, 106 Miss. 844, 64 So. 738.
Nor can he claim any benefit from the fact that something may have intervened to cause the death of the individual whom he injured.
Conner v. State, 177 So. 46.
We submit that this was not a case for a directed verdict of not guilty, but a case that should be submitted to the jury to determine, first, whether it were a killing conceived and executed in malice and cold blood, or whether it were a necessary or an unnecessary killing, regardless of malice.
Appellant argues that the court improperly allowed the witness, Parsons, over objection, to testify that there were certain tire tools and a hammer in the truck operated by appellant, during the ten days immediately preceding his homicide.
The only objection to this testimony at the trial was that "it was too remote." We think this was without foundation because if the tire tool and hammer had been in this truck during the preceding ten days, it would only be natural to assume that both were there on the next morning, the morning of the homicide.
In rebuttal, the state offered the witness, Spencer, to prove certain convictions of appellant. This witness was allowed to testify over the objection of appellant and the court's ruling in this respect is assigned here as error.
On the cross-examination of appellant it clearly appears that he had a most convenient memory with respect to other convictions, but would neither admit nor deny the convictions. Of course, if he had admitted the convictions, there would have been no need to contradict him, but where he would neither admit nor deny such convictions, we submit that it was proper to let the records speak for themselves. The court having allowed this to be done committed no error in so doing.
Section 1531, Code of 1930.
Argued orally by E.C. Barlow, for appellant and by W.D. Conn, Jr., for the State.
The appellant, Nick McCaffrey, was indicted in the Circuit Court of Lincoln County for the murder of R.E. Moak, was tried and convicted of manslaughter, and sentenced to seventeen years in the state penitentiary; from which judgment he appeals to this Court.
It appears that on or about the 24th day of June, 1938, the appellant, Nick McCaffrey, was employed in driving a truck on a road repairing project, in company with other WPA workers, in Supervisors' District No. 4 in Lincoln County. These workers, it appears, assembled on the day the killing occurred, at a point near Arlington church and school, about two and a half miles north of the residence of the deceased, R.E. Moak, for the purpose of getting their trucks, tools and working materials, before going to the point where the work was being performed. Mr. Moak, the deceased, also appeared at this place for some reason. The appellant was in his truck, preparatory to leaving for his work, when Mr. Moak called to him, "Hey, Nicodemus!", and approached his truck. The other workers were proceeding on their way, but in passing the appellant's truck, in which he was sitting, some of them heard Mr. Moak call to him as stated, and saw him go in the direction of the truck; but at the moment saw nothing to attract attention. When the truck in which four of the workers were riding had passed the appellant's truck, some of them looked back, and exclaimed, "They are fighting!" Seeing Mr. Moak and the appellant engaged in a struggle, they stopped their truck, and went back to them. Just before reaching the spot where they were struggling. Jim McCaffrey, brother of appellant, called to Nick McCaffrey, not to strike Moak any more; and it was testified that he did not again strike the latter. It was testified that no weapons were found on the ground at the place where the fight occurred; that these men saw appellant knock Mr. Moak down, and when they reached the spot they found him trying to rise, and assisted him to do so. His hat had either fallen or been knocked from his head, and his pipe had fallen to the ground. Jim McCaffrey and other men on the truck took Mr. Moak to his home, but before reaching there he became unconscious. A physician was sent for, and finding him still unconscious, took him to a hospital, where he died shortly after noon.
None of the witnesses saw the beginning of the fight, or heard any of the conversation that took place before it started. The only testimony as to what occurred is that of the appellant, given at the trial, and some statements there introduced, which he had made after the fight was over, in regard to the difficulty. It appears that the appellant, after the fight, went on to the point where the road was being repaired, and then decided that the proper course would be to go to a justice of the peace and plead guilty to fighting, since he would no doubt be arrested and tried for it. He accordingly went to a justice of the peace, to whom he stated that he had engaged in a fight with Mr. Moak, and desired to plead guilty, but the justice of the peace advised him that he could not accept the plea of guilty without a charge being preferred, and that the appellant could not prefer a charge against himself. He also asked the appellant who "whipped" in the fight, and the appellant stated that neither did — that they were separated. He inquired as to the nature of the fight, to which appellant replied that he gave him "all he had," and made some movement indicating his feet. At that time the appellant did not know anything of Mr. Moak's condition. He went to the constable of the district, a relative by marriage, and had him prepare a charge of fighting against him, plead guilty thereto, and was fined $2 and costs; then returned to his work.
As stated, the condition of the deceased was desperate, and he died shortly after being removed to the hospital. The sheriff of the county, accompanied by his deputies, arrested the appellant, but did not tell him that Mr. Moak was dead. They testified to a statement by the appellant to them, to the effect that when they said to him that he must have hit Mr. Moak very hard — that he was in a serious condition — appellant stated that he gave him all he had; and further, that he "stomped the soles of his shoes off" on him.
The appellant was taken to the jail, where the deputy sheriffs and the district attorney interviewed him. He stated that he only struck Moak with his fists, which the district attorney disputed, branding the statement as false in vigorous language. The shoes worn by appellant at the time of his arrest and incarceration, were in good condition — they were neither soleless nor were the soles dilapidated; as stated by some of the witnesses, they only needed polishing.
Dr. Arrington was called to attend Mr. Moak at the hospital; he testified that his face was badly bruised and swollen, that over one of his eyes was a wound where the skin was broken, and which was bloody; that there were some bruises on the head, which the doctor thought were not made by the fist, but by some blunt instrument. The physician testified, on a habeas corpus trial, that in his opinion the death was caused by a basal fracture of the skull where there was a bruise. After the indictment, and before the trial, the district attorney and the wife and children of the deceased applied to the court for an autopsy, to determine the nature and character of the injuries, and the cause of death, so far as might be done. This autopsy was performed by Dr. Arrington, who found there was no fracture of the skull; but that inside of the skull, in the brain, there was a blood clot of considerable size, caused by a lesion hemorrhage in the brain. This autopsy was performed some sixty or ninety days after the death of the deceased.
The state proved by some witnesses, over objection, that the appellant carried tools in the back of his truck; but the witnesses who were at the scene of the difficulty immediately after it started, stated that there were no tools on the ground, or at the scene of the fight.
The appellant's testimony was to the effect that Moak approached him as he sat in his truck, ready to start, and he turned, placing his feet in the door of the truck, when Moak accosted him about an alleged statement which he claimed the appellant had made, to the effect that Moak had been arrested in connection with a car wreck, with some woman in the car, while driving in a reckless manner. Moak asked the appellant why he made such a statement, and the latter said he knew nothing of it; whereupon Moak called him a "damned liar," and started to pull him out of the truck. The appellant kicked him, got out of the truck, and they clinched, then broke the clinch, and appellant knocked Mr. Moak down with his fist; he had no weapons of any kind, at the time.
After his arrest the appellant was asked by the sheriff and his deputies as to the cause of the difficulty; and he stated that it was caused by a charge made against appellant before a justice of the peace, accusing appellant of stealing a car. The justice of the peace before whom the charge was made was introduced to show that such a charge had been preferred, but had been dismissed for want of prosecution; that Mr. Moak had some connection with the charge, but that the witness relied upon to testify did not appear at court, and the charge was dismissed in consequence.
The defendant objected to the introduction of the justice of the peace and his docket, to show such charge, testifying that at the time he did not know that Mr. Moak had been instrumental in preferring the charge; denied making the statements, alleged that they had been friends — and were friends at the time the charges were preferred against him.
The appellant was a man 33 years of age. At the time of his arrest his fists were not bruised; and Dr. Arrington testified that he did not think a blow of the kind inflicted on the deceased could be caused by striking with the fist, but that if it was so caused, the fist would be bruised, or possibly the knuckles or fingers would be broken. The deceased was a man of about 55, very heavy and fleshy, and had high blood pressure.
At the time of the difficulty the deceased had with him his horse, a stallion; and when the fight began there was some evidence to the effect that the horse reared and got loose from the owner, the appellant testifying that the horse's foot passed between his face and that of the deceased — he did not know whether or not it struck him, or words to that effect.
At the time of his death Mr. Moak was a deputy sheriff, but was not exercising any of the functions of his office. The appellant testified that in the race for constable in that district, the deceased was a candidate against the former's brother-in-law, and that he had voted for Mr. Moak against his brother-in-law.
It does not appear that in making a motion in court for an autopsy on the body of deceased, any notice thereof was given to the appellant, nor that he was asked to have a representative there. A motion was made, after the autopsy, by the defendant, requesting that the parties connected with the autopsy confer with the defendant and his attorneys, disclosing to them the condition revealed thereby.
It appears that a physician was requested by the appellant and his counsel to attend the autopsy; that he went near the cemetery where the body was being exhumed, but was stopped by someone claiming to represent the sheriff, who refused to permit him to attend the autopsy, and see what was being done. It is contended in the argument that the defendant requested the court to permit his attorney, and a physician to be selected by the defendant, to attend the autopsy. A motion was filed to require the physician and those present to disclose to the defendant the conditions disclosed by the autopsy; it is stated that the defendant is informed and advised, and believes that on Sunday, September 18, 1938, the body of the deceased was exhumed, and an autopsy performed thereon by Dr. Arrington, in the presence of Estus McGuffie, Jim Coker and Henry Smith, these three being deputy sheriffs of the county. It was further alleged that on hearing that the autopsy was to be performed the defendant requested an order of the court granting permission for him to be represented by his attorney and a competent physician to be selected by him at the autopsy, but that such order and permission were refused. It was then alleged that the attorney, and physician selected by the defendant made written request of the attorney who had been employed to assist the district attorney, in the absence of the latter, that they might be present at the autopsy, which request was denied; and that a similar request was made to the sheriff's office by the attorney for the defendant, which was also denied. It is alleged that the physician selected by the defendant started to the place where the autopsy was held, was turned back by a deputy sheriff; and the court was requested to direct Dr. Arrington and deputy sheriff to disclose to the defendant and his attorney what was found at the autopsy.
The court sustained this motion, directing the information to be disclosed. Whereupon a conference was held, and the attorney for the defendant brought Dr. Arrington before the court, and requested the court to instruct Dr. Arrington a witness for the state whose name was on the indictment, to confer with defendant and his attorney, advising them as to the result of the autopsy performed upon the body of R.E. Moak on September 18, 1938; whereupon the court said: "I realize the position of the doctor. They have certain rules of ethics involved; but under the circumstances, Doctor, the attorneys for the defendant are entitled to the result of your finding, and entitled to confer with you, and you will give them the benefit of the results of your finding."
No evidence was introduced of a request to the court that the defendant might have a representative present at the autopsy, and of the refusal by the court of such a request. The allegations of the motion are at issue, without formal denial, and it devolves upon the movant to introduce proof in support of the motion.
No authorities are introduced bearing on the right of a defendant, where an autopsy is ordered by the court in a criminal prosecution against the defendant, nor has any citation been given, showing what rights the defendant may have in that regard. The question seems to be raised for the first time in this state.
Ordinarily an autopsy may be had only on direction of the court that a body be exhumed, but as a rule relatives assume control over such matters. It may be that in cases where an autopsy is performed without an order of the court, but with the consent of the relatives, with no notice to the defendant, nor opportunity for him to be heard, the findings would be admissible in evidence against the defendant, — that a statement as to the condition of the body, bearing on the matter involved in the prosecution, may be admitted in evidence, without the defendant having had opportunity to be heard, or to witness the autopsy. However, the proper course would appear to be, when requested by the defendant, to permit a competent physician to witness the autopsy as his representative, and also his attorney. That would appear to be fair and just, as the findings might be vital in turning the scale of evidence, or in disclosing evidence which might have cogent force in the prosecution. But we do not think this record presents a case suitable for the submission of this question to the Court for decision. It probably would devolve upon the defendant to make formal application to the court for the privilege, with notice to the opposing parties. It would also appear to be the proper course when application is presented to the court by the state, that notice thereof should be given to the defendant, with opportunity to resist same, or to assert whatever rights the defendant and his counsel might deem proper.
The autopsy in the present case does not seem to have been prejudicial to the defendant's rights, because the doctor, before the autopsy, was of the opinion, from an examination of the body and the wounds, that the skull had been fractured, and that such fracture was the cause of death; whereas the autopsy disclosed that a cerebral hemorrhage had been the cause, produced either by physical violence, or by violent passion, accompanied by high blood pressure, such passion and excitement being calculated, under such circumstances, to produce a rupture of the blood vessels in the brain.
We are of the opinion that the evidence to the effect that the difficulty arose in regard to a former charge connected with an automobile theft, was admissible for the purpose of showing a state of mind, or motive. There was evidence not only that the defendant had so stated to the officers, but also that he had stated that he did not think Mr. Moak had treated him right in the matter of the automobile prosecution. That would tend to show a state of feeling which might result in violence on less provocation, or without provocation, for that matter; whereas, if no such state of feeling existed, violence might not have resulted from the situation existing at the time of the difficulty. It is evident from the record that no weapons were taken from the truck. None were found at the scene of the difficulty at the time or afterwards, and from the time the difficulty was observed by the four witnesses to the fight, until it was over, the parties engaged in the struggle were several feet distant from the truck. The introduction of evidence to the effect that the defendant carried tools in the truck, while improper, under the facts of this case, when considered in connection with the evidence, does not appear to be of sufficient importance to warrant a reversal of the case.
Without going into the details of the voluminous record, we find by an examination of it that the verdict of manslaughter was justified by the evidence. The jury could infer from the evidence that the appellant began the difficulty; and even though the deceased was the aggressor, the act was unlawful, or a jury could so find; the killing being the unanticipated result flowing from the fight, in which fists and feet were used, but no weapons.
The case presents some difficulties, but from a careful review of all the facts, we think it highly probably that the offense was actually manslaughter. The defendant being convicted of manslaughter, and not of murder, all instructions and questions involving a charge of murder fade out on this appeal. In this case the jury, in finding the defendant guilty of manslaughter, made a strong recommendation to the court for mercy in imposing sentence, the verdict reading: "We, the jury, find the defendant guilty of manslaughter, and especially ask the mercy of the court." The italicizing is in the verdict contained in the record, and is not the underscoring of the Court. This strongly indicates that while the jury thought the defendant should be punished, they thought he should receive a merciful sentence. The sentence of seventeen years here imposed is close to the maximum which may be imposed by law, the highest sentence being twenty years imprisonment in the penitentiary, where the killing is accompanied by aggravating circumstances not showing sufficient malice to warrant a verdict of murder, but approximating that condition, at least under some circumstances.
The line between murder and manslaughter is sometimes dim, and occasionally the jury finds a verdict for manslaughter when it should perhaps have been for murder. In this case the jury could not rightly have found a verdict of murder. The sentence for manslaughter ranges from twenty years in the penitentiary down to one day in jail, or a fine of $500. It should be controlled by the facts of the case — it should not be arbitrary. The sentence here appears to us to be excessive. However, in our practice, so far as we are informed or have found, no case has developed in which the Court has reversed solely because of the imposition of a severe sentence, where the punishment is within the limits fixed by the law applicable in such case. In regard to manslaughter there is an exceedingly wide discretion vested in the court, but it is a judicial discretion, a part of the judicial duty of the court in administering the law. If on reviewing the case here the Court can pass on the question at all — which is not now decided — there are facts in the record which might have influenced the trial judge in imposing the sentence, in opposition to the recommendation of the jury. The jury's recommendation, of course, is to be considered, and should have weighty force, but it is not controlling; and after a good deal of reflection, and some dissatisfaction with the sentence, on this record, we think the safe course would be to leave the correction of the severity of the sentence to the power which has been conferred upon the Governor, of the state.
We do not mean to say that cases may not arise in which it would be the duty of the Court to hold that a sentence (although within the limits of the law), when considered in connection with the facts, would be so excessive as to constitute a denial of due process of law, or a violation of the prohibition against cruel and unusual punishment. We prefer to wait until such a case so clearly appears as to make it the duty of the Court to decide the question of the power of the Court, on appeal, to affirm the judgment of conviction, and remand the case for a re-sentence.
It follows from what we have said that the judgment must be affirmed.
Affirmed.