Opinion
No. 34189.
November 11, 1940.
1. CRIMINAL LAW.
Alleged confession, in response to officer's statement that accused might as well tell the truth so that they could get the facts and that they would make it as light as they could, was an "involuntary confession" and therefore incompetent, but, in absence of objection or motion to exclude it, failure of the court to exclude the officer's testimony on his own motion was not ground for reversal.
2. HOMICIDE.
Evidence did not sustain conviction for manslaughter.
3. HOMICIDE.
In homicide prosecution, accused should have been permitted to show all facts regarding victim's visit to home of accused over protest not only of accused but of plantation manager and others as well, as tending to establish victim's state of mind and his determination to enforce demand that woman living with accused as his wife, leave accused and return to victim.
4. HOMICIDE.
In homicide prosecution, issue submitted to jury should have been limited under the facts to manslaughter, but, where conviction was of manslaughter, failure to so limit the issue was not reversible error.
APPEAL from the circuit court of Coahoma county; HON. WM. A. ALCORN, JR., Judge.
Holcomb Curtis, of Clarksdale, for appellant.
The evidence is insufficient to support a verdict of manslaughter. There is not a scintilla of evidence of murder in the record, yet the lower court granted a murder instruction. There is no evidence of any wilful design, unlawful arming, felonious intent or premeditation. Consequently, under the facts of the case at bar, the lower court was unwarranted in refusing appellant's request for a directed verdict.
The directed verdict should have been allowed, for according to the state's own case: (1) appellant was in and upon his own premises; (2) he was seeking to evict a trespasser therefrom; and (3) he was seeking to restrain the said trespasser from an unwarrantable injury to or control of his property; and even more than this (4) he was seeking to restrain the decedent-trespasser from taking his, the said appellant's life or taking the wife of appellant or the life of appellant's wife.
Under such circumstances, the appellant had the right in law to interpose by force to prevent the trespass and the unwarrantable conduct of decedent and said appellant was authorized in arming himself with whatever weapon he desired and in using it to the extent of slaying the trespasser if it became necessary in the progress of the difficulty to protect his own life or person or the life or person of those under his charge against a felonious assault.
It is undenied in the record, too, that the decedent threatened the life of appellant and made a motion evidencing a present design to take appellant's life or to do him, the said appellant, or Ida Bell, great bodily harm, and appellant was apprehensive of danger and had just ground to be.
Consequently, it is respectfully submitted that this case comes clearly within the definition of justifiable homicide and the case at bar should be, it is respectfully submitted, controlled by the case of Ayers v. State, 60 Miss. 709.
McDaniel v. State (Ala.), 161 So. 832; Anderson v. State, 181 Miss. 300, 179 So. 560; Jones v. State, 170 Miss. 581, 155 So. 430.
The court erred in refusing to admit testimony to the effect that decedent was a trespasser at the time of the homicide, as well as, instructions to that effect. Under the decision of the Ayers and Jones cases, supra, trespass is certainly an element of defense, and the learned lower court was in error in refusing to admit such testimony, and such error was, it is respectfully submitted, prejudicial to the rights of appellant.
It is respectfully submitted that it was error on the part of the court in refusing to instruct the jury that the said appellant could not be convicted under the evidence of a crime higher than manslaughter. Should such an instruction be allowed, and the murder instruction refused, then and in that event, the jury would not have compromised the said verdict, but would have found the defendant, appellant herein, not guilty. When a man is on trial for his life, certainly he should have the benefit of proper instructions by the court as to the law governing the case and certainly, under the facts of the case at bar, a murder instruction was beyond the pale.
Rester v. State, 110 Miss. 689, 70 So. 881; Williams v. State, 127 Miss. 851, 90 So. 705.
W.D. Conn, Jr., Assistant Attorney-General, for appellee.
We, of course, concede that an occupant or owner of premises has the right to evict a trespasser but that right does not carry with it the right to kill. In putting a trespasser off, one has a right to arm himself for the purpose of defending himself from bodily harm at the hands of the trespasser, if that be necessary. This is the theory of Ayers v. State, 60 Miss. 709, cited by appellant. In this case, the jury had a right to believe from the evidence that Dean started to leave and that, as he turned to go out, appellant shot him in the back. Under the evidence, it could have believed that Dean did not start to go until appellant armed himself with his rifle but that he was making an effort to get away from him when he saw him in possession of a rifle.
As the state was developing its case, a Mr. T.E. Neal, constable, testified that he asked appellant how he got into trouble and appellant told him that he had ordered deceased out of his house and that, as he started to run, with his back toward him, he shot him; that appellant also stated that when deceased got up to go, he "made a move for his breast." When the witness doubted that Dean made this movement and so stated his doubts to appellant, appellant then stated, "Mr. Neal, I just give you that" and began to grin and then admitted that he was just scared of Dean.
On the state's testimony, a verdict of murder would have been supported. It shows a deliberate killing. Certainly it was not a necessary killing. The jury was liberal with the defendant and convicted him only of manslaughter. Our view of the case being such, we submit that the court properly refused the requested peremptory instruction.
It seems to us that all of the competent testimony to the effect that Dean was a trespasser at the time was admitted. Appellant refers to pages 34 and 41. At these two places that appellant had told Dean not to come on the place and, likewise, T.M. Turner, the plantation manager, had done so. It appears that objections were made and sustained on matters aside from that.
Appellant says that the court erred in not limiting the jury to a consideration of nothing more than manslaughter. Here, again, we disagree with the counsel. We think there was a very distinct element of murder in the case. Certainly the offense was manslaughter, at least. Since he has been convicted of manslaughter, there could be no reason for holding that the trial judge committed reversible error. If error at all, it was harmless in view of the verdict returned. His argument in this connection is founded on what was said in Rester v. State, 110 Miss. 689, 70 So. 881, but the doctrine of that case has been repudiated and that decision overruled. Calicoat v. State, 131 Miss. 169, 95 So. 318, and see Bradford v. State (Miss.), 161 So. 138, which lists the decisions of this court following the Calicoat case.
This appeal is from a conviction of manslaughter. The appellant, Henry McDowell, shot and killed Lester Dean. It was shown that about a year prior to the killing, Lester Dean left the woman with whom he was living, but to whom he was not married, and induced the wife of the appellant to go and live with him in the State of Arkansas. Thereafter, the appellant and the woman with whom Lester Dean formerly lived, began living together as husband and wife. Her name was Ida Bell, and she was the only other eyewitness to the homicide, which occurred in the home where she and the appellant were residing and at a time when Lester Dean was a wrongful trespasser therein. It seems that Dean had just returned from Arkansas and while he was en route to the home of the appellant, shortly before the killing, the two met some distance from the house, and Dean boasted that he was going to appellant's house to see Ida Bell, and stated in effect that he was going to make her come back to live with him. Thereupon, the appellant warned him not to go to his home and raise a disturbance. Others were present when this incident occurred. Thereupon, appellant went on to town, but soon returned to his home where he found Dean in a quarrel with Ida Bell, and was threatening to kill her and appellant if she did not come back and live with him. She was confined to bed with a two weeks old baby at the time. It was shown that Dean was drinking, and that he was a large and able-bodied man who had a bad reputation as to peace or violence. He was repeatedly ordered to leave the house by both Ida Bell and the appellant. Finally, according to the testimony of Ida Bell, who was introduced as a witness by the State, and that of appellant, as the only eyewitnesses, Dean arose and while continuing to make threats of violence and to declare that she had to come back to him, he reached his hand into the bosom of his shirt as if to draw a weapon, while walking backward toward the door, and the appellant then reached for his rifle and fired, the fatal shot taking effect behind Dean's shoulder as he turned.
There was no conflict between the State's testimony and that of the appellant as to how the killing occurred, except that it was shown that after the appellant had given himself up and was in the custody of the constable, he related to said officer the facts as later detailed by both himself and Ida Bell on the witness stand, but presently retracted his statement in regard to Dean's having reached his hand into his bosom in a threatening manner before appellant seized the gun and shot him. This retraction was made after the constable had questioned the truth of the appellant's contention in that regard and had said to him, "You might as well tell the truth, so we can get the facts of it, and we will make it as light as we can." The alleged confession to the officer was therefore clearly involuntary within the legal sense, and was consequently incompetent. However, it was not objected to, nor was there any motion made to exclude it. The failure of the Court to exclude the officer's testimony, of his own motion, under such circumstances would not of itself justify a reversal. Loftin v. State, 150 Miss. 228, 116 So. 435; Wohner et al. v. State, 175 Miss. 428, 167 So. 622; Fisher v. State, 145 Miss. 116, 110 So. 361. But it was urged upon a motion for a new trial that the verdict of the jury was contrary to the overwhelming weight of the testimony. And we are of the opinion that this retraction by the appellant of that portion of his original statement to the constable, made under the circumstances testified to by the officer, when weighed in the light of the positive and undisputed testimony given by the appellant and the state witness Ida Bell upon the trial as to how the killing occurred, presents such a case as to entitled the appellant to a new trial, on the ground that the verdict was contrary to the overwhelming weight of the evidence.
Moreover, we think that the appellant should have been permitted to show all of the facts in regard to Dean's having come to his home over the protest not only of the appellant but of the plantation manager and others as well, as tending to establish Dean's state of mind and his determination to enforce his demand for Ida Bell to leave the appellant and come back to him.
Also, under the authority of the cases of Ayers v. State, 60 Miss. 709; Williams v. State, 122 Miss. 151, 84 So. 8; and Jones v. State, 170 Miss. 581, 155 So. 430, the issue submitted to the jury should have been limited to manslaughter. The failure to so limit the issue did not constitute reversible error in this case for the reason that the appellant was not found guilty of a higher offense than manslaughter. However, since a conviction of murder could not be permitted to stand under the facts shown by this record, the issue should properly be limited to manslaughter, that is to say, to the question of whether the killing was manslaughter or justifiable homicide.
Reversed and remanded.