Opinion
No. 33583.
May 1, 1939.
1. CRIMINAL LAW.
It is one of the duties of the Supreme Court, in a case less than perfectly clear, to be mindful of the danger of a spirit of community vengeance finding its way into a jury's verdict imposing the death penalty under the forms of the law when no such severe verdict is justifiable.
3. HOMICIDE.
Where a verdict of death has been returned in a homicide case, notwithstanding all the facts disclosed that deceased had been aggressor without cause or provocation throughout the entire difficulty until moment the party attacked turned and slew him, little else is needed to make it evident that a spirit of community vengeance entered in to the case, all of which requires the closest scrutiny of the record by the Supreme Court.
2. HOMICIDE.
Where there was evidence that the deceased had made an unprovoked and dangerous assault upon accused and continued it until the moment or almost the very moment when accused fired, instruction that if accused feloniously and with malice aforethought killed the deceased and accused at the very instant the shot was fired was in no immediate danger, real or apparent, of losing his life, or suffering great bodily harm, accused should be convicted, was prejudicial error.
4. CRIMINAL LAW.
In determining whether an instruction was erroneous, the evidence in behalf of accused must be accepted as true by the appellate court.
5. CRIMINAL LAW.
The ancient rule of the common law required the prosecutor to introduce all eyewitnesses to the homicide, but such rule has been modified in Mississippi so that, when some of the eyewitnesses have been introduced by the state, the failure by the state to introduce the others or refusal by court to allow them to be examined as if witnesses for the state is not error in the absence of exceptional circumstances.
APPEAL from circuit court of Adams county; HON. R.E. BENNETT, J.
W.A. Geisenberger and Lawrence Adams, both of Natchez, for appellant.
The evidence did not support a verdict of conviction for any higher crime than manslaughter.
It is the appellant's contention that, if guilty of any crime, it is only that of manslaughter, because (1) the killing was in the heat of passion and without malice, and (2) was done while the appellant was resisting an attempt by the deceased to commit an unlawful act or after the attempt to commit such act had failed, and (3) was done without malice while the deceased was engaged in the perpetration of a misdemeanor (to-wit, an assault upon the appellant).
There is no showing in this case of any fact or circumstance that would give rise in the mind of any reasonable man that the defendant was actuated by malice or premeditation when he shot and killed the deceased.
Sections 990, 991, 994, 995, 996 and 1002, Code of 1930; Ex Parte Ray, 30 Miss. 673; Maury v. State, 65 Miss. 605; Brown v. State, 98 Miss. 786, 54 So. 305; Staiger v. State, 110 Miss. 557, 70 So. 690; Williams v. State, 120 Miss. 604, 82 So. 318, 121 Miss. 433, 83 So. 337, 122 Miss. 151, 84 So. 8; Dye v. State, 127 Miss. 492, 90 So. 180; Williams v. State, 127 Miss. 851, 90 So. 705; Fletcher v. State, 129 Miss. 207, 91 So. 338; Springer v. State, 129 Miss. 589, 92 So. 633; Woodward v. State, 130 Miss. 611, 94 So. 717; Ashby v. State, 137 Miss. 133, 102 So. 180; Dalton v. State, 141 Miss. 841, 105 So. 784; Bergman v. State, 160 Miss. 65, 133 So. 208; Bowen v. State, 164 Miss. 225, 144 So. 230; Jones v. State, 170 Miss. 581, 155 So. 430; Cockrell v. State, 175 Miss. 613, 168 So. 617; Jones v. State, 178 Miss. 636, 174 So. 546.
The lower court erred in not permitting the appellant as defendant to place the witness Jake Frishman on the stand as a hostile witness, without being bound by what the witness testified, and with the right to ask leading questions of said witness.
The ancient rule required the state to produce all available eye witnesses. This, however, led to a conflict of authorities, both in England and in this country. The settled rule now seems to be that the state is not required to use all of the witnesses whose names appear on the indictment. The rule, however, is more limited in England than in America.
16 C.J., Criminal Law, secs. 2132-2135.
The rule has apparently been set at rest in Mississippi in Morrow v. State, 57 Miss. 836, following the weight of the American authorities, and which was itself followed in Hale v. State, 72 Miss. 140, 16 So. 387; Carlisle v. State, 73 Miss. 387, 19 So. 207; Patty v. State, 126 Miss. 94, 88 So. 499; Mitchell v. State, 171 Miss. 4, 156 So. 654.
And if the action of the lower court in overruling the motion of the defendant made in this connection stood alone, we would not expect a reversal of this case on that account. But, taken in connection with all of the other facts and circumstances in the case, and keeping in mind that the defendant in this case is a negro man and the deceased was a white man, and considering the conflicts in the evidence of the state even when it used only a very few of the available witnesses, and considering the further fact that, as distinguished from the Morrow case, this defendant did not seek to have the state put these witnesses on the stand but sought only the right to use as an eye witness one of the two state's witnesses on whose testimony this indictment was returned by the grand jury, justice required the granting of the defendant's motion. The request of this defendant was not for something which the law denied him, nor which is prohibited by any rule of practice, but under the authorities, the granting or refusing of such a request lay in the sound discretion of the court, which discretion is to be exercised in accordance with the uniform holdings of this court, not in an arbitrary and capricious manner but in such way as will promote the demands of justice.
Bryant v. State, 157 So. 346, 172 Miss. 210.
The lower court erred in granting the instructions given the state. The first instruction was as to the form of the verdict and permitted the jury to return a verdict finding the defendant guilty of murder, though under it the jury were also authorized to find the defendant guilty of manslaughter. It is our contention that this instruction was erroneous in permitting the jury to find a verdict for murder. The state also obtained the following instruction: "The court instructs the jury for the state that murder is the killing of a human being without authority of law and with the deliberate design of affecting the death of the person killed, and in this case, if the jury believes from the evidence beyond a reasonable doubt, that the defendant, Mose Ross, did then and there wilfully, unlawfully, feloniously and of his malice aforethought kill the deceased, Francis Strain, and that at the very instant and time the shot was fired, the said Mose Ross was in no immediate danger, real or apparent, of losing his life or suffering great bodily harm at the hands of the said Francis Strain, it is the duty of the jury to convict the defendant, and this is true no matter how short a time such deliberate design to take the life of the said Francis Strain may have existed in the mind of Mose Ross, if such deliberate design existed."
The court will bear in mind that the defendant Ross testified that he shot the deceased because and when he ran his hand in the bosom of his shirt as though to draw a gun. This testimony was contradicted by the witness Eidt, who, the evidence discloses, was sitting in his bakery truck near the front of the Baroni store and to the north and rear of Strain. There is no evidence in the record that the deceased was unarmed, though the state, in an abortive attempt to have the wife of the deceased testify in rebuttal, questioned her as to this, but objection by the defendant to the question was sustained by the court. The instruction as given is totally discordant and in conflict with those instructions given to the defendant on the law of self-defense and cannot be reconciled therewith.
Vance v. State, 183 So. 280; Dyson v. State, 26 Miss. 362.
In Cotton v. State, 31 Miss. 504, it was held that while to justify a party killing another on the ground of self-defense, he must have a reasonable ground to apprehend a design on the part of the deceased to commit a felony on, or to do some great personal injury to him, and there must be imminent danger either actual or apparent of such design being accomplished, yet, though it is necessary that the danger should apparently be imminent, it is not essential that it should be immediate and impending at the very moment of the killing.
Evans v. State, 44 Miss. 762; Fortenberry v. State, 55 Miss. 403; Holly v. State, 55 Miss. 424; Beasley v. State, 64 Miss. 518; Bang v. State, 60 Miss. 571; Ayres v. State, 60 Miss. 709; Ellerbe v. State, 79 Miss. 10; Windham v. State, 91 Miss. 845, 45 So. 861; Case v. State, 17 So. 379; Leveritt v. State, 112 Miss. 394, 73 So. 273; Anderson v. State, 179 So. 560; Irby v. State, 185 So. 812.
The lower court erred in not setting aside the verdict of the jury and granting the defendant a new trial.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
This court has held that the jury, in a murder prosecution, has the right to believe portions of testimony of each witness and reject other portions; that in passing upon the quality of an act the jury has a wide discretion in its finding of fact and if here is reasonable, competent evidence presented in the record to sustain the verdict, this court will let it stand because under our system the jury is the trier of the facts.
Woodward v. State, 130 Miss. 611, 94 So. 717; Triplett v. State, 159 Miss. 365, 132 So. 448; Thomas v. State, 129 Miss. 332, 92 So. 225; Dean v. State, 173 Miss. 254, 160 So. 584.
In the case at bar the state's testimony is to the effect that several minutes elapsed between the time deceased was said to have struck appellant and the shots fired by the appellant. As stated by the witness, Eidt, he thought that all the difficulty had ended and that appellant shot deceased at a time when the deceased was not even looking at him. Witnesses for the defendant admitted that it could have been as much as two minutes between the time deceased struck appellant with the bottle and the time appellant shot the deceased. The defendant, on his evidence, virtually made it a question for the jury to determine whether the killing were murder or a justifiable manslaughter.
The appellant refers to and sets out an instruction given at the request of the state and capitalizes that part of the instruction to which his objection is directed. It it that part of the instruction which told the jury that if "at the very instant and time the shot was fired, the said Mose Ross was in no immediate danger, real or apparent" etc. Appellant takes the position here and cites considerable authority to the effect that this unduly restricts his right to too short a time and that the instruction in this respect was erroneous and that his conviction should be reversed for the giving of it.
In his brief appellant refers to most, if not all, of the authorities where this charcater of instruction has been condemned. The last case, and one which reviews the authorities in this respect is that of Vance v. State, 183 So. 280. The court there said that the verbiage "circumscribed the right of self defense within too narrow limits." The court did not reverse the conviction in the Vance case for the giving of this instruction as will be noted in the opinion of the court on suggestion of error in the case of Woods v. State, 184 So. 311. In the Woods opinion the court, in so many words, said that it would look at the facts of each case and determine whether or not this circumscription would amount to reversible error or not. The court having stated that it would determine this matter for itself on the facts of each case, we submit the proposition of whether, on the facts of this case, this circumscription would be treated as such error as that it should feel called upon to reverse this conviction.
We submit that the evidence in this case is not in such shape as that the court would be warranted in reversing because of the insufficiency of the evidence in view of what it has heretofore said in cases like Thomas v. State, 129 Miss. 332, 92 So. 225; Hinton v. State, 175 Miss. 308, 166 So. 762; Stokes v. State, 172 Miss. 199, 159 So. 294.
Argued orally by W.A. Geisenberger and Lawrence Adams, for appellant, and by W.D. Conn, Jr., for the State.
Appellant, a negro, was convicted of the alleged murder of one Strain, a white man, and was sentenced, under the verdict, to suffer the death penalty.
Sometimes, although not often, a spirit of community vengeance finds its way into a jury verdict under the forms of the law, when, under the real facts and the real law of the land, no such severe verdict is justifiable; and it is one of the duties of this court to be mindful of this danger when, in a case less than perfectly clear, the extreme penalty has been pronounced as a result of a verdict. And when such a verdict has been returned in a homicide case wherein all the facts disclose that the deceased has been the aggressor, and without cause or provocation, throughout the entire difficulty until the moment when the party attacked turns and slays, little else is needed to make it evident that there is presented a case wherein the inadmissible element has perhaps played a part, and the closest scrutiny then becomes the obligation of this court.
The testimony for both sides in this case shows that appellant was unacquainted with the deceased and had never come in contact with him except on the single occasion of the meeting by accident here involved. It shows that the deceased was under the impression that appellant was, or may have been, the person who had done him some fancied injury on an occasion some days before, but which in fact was not true. The deceased, on meeting the appellant, and ascertaining his name, charged the latter with this fancied wrong, which appellant denied, saying that he had not even been present on such previous occasion. The deceased profanely persisted, however, in the charge and assaulted appellant with a beer bottle, which appellant attempted to ward off by throwing up his arms, and by backing away from the deceased. Appellant appealed to some of those present to intercede, and one bystander did attempt to persuade the deceased from the continuance of the assault.
All that has been stated in the foregoing paragraph is either undisputed or is shown by the great weight of the evidence. And the evidence in behalf of appellant shows that the deceased continued the unprovoked assault and battery on appellant until the moment, or until very nearly the same moment, when appellant succeeded in getting a pistol from his bosom and slew the deceased. The undisputed evidence is also that appellant was a person of small stature, crippled by the loss of one foot, while the deceased was of large size, and in full possession of all his natural powers, and that in addition, as already mentioned, deceased was using a beer bottle as a weapon of assault.
In this state of the record of the evidence, the court gave the following instruction against appellant:
"The Court instructs the Jury for the State:
"That murder is the killing of a human being without authority of law and with the deliberate design of effecting the death of the person killed, and in this case, if the Jury believes from the evidence beyond a reasonable doubt, that the defendant, Mose Ross, did then and there wilfully, unlawfully, feloniously and of his malice aforethought kill the deceased, Francis Strain, and that at the very instant and time the shot was fired, the said Mose Ross was in no immediate danger, real or apparent, of losing his life or suffering great bodily harm at the hands of the said Francis Strain, it is the duty of the jury to convict the defendant, and this is true no matter how short a time such deliberate design to take the life of the said Francis Strain may have existed in the mind of Mose Ross, if such deliberate design existed."
This instruction was harmfully erroneous in the state of case which we have above outlined, and obviously so. The jury had a right to believe the evidence in behalf of appellant that the unprovoked and dangerous assault by the deceased continued until almost the very moment when appellant fired. And in determining whether such an instruction was erroneous we must consider, as against the validity of the instruction, that the stated evidence in behalf of appellant was true. Fortenberry v. State, 55 Miss. 403, 409. What becomes of such cases on the facts of those cases as Beasley v. State, 64 Miss. 518, 8 So. 234; Jackson v. State, 79 Miss. 42, 30 So. 39, and Combs v. State, 175 Miss. 376, 167 So. 54, not to mention others of similar import, if in such a case as we have here the use of the quoted instruction be approved?
In Beasley's case, he and Starnes were hunting in the woods. Starnes began a quarrel with Beasley, and without any provocative act on the part of the accused, Starnes shot at Beasley but missed, whereupon Starnes ran, and Beasley arose from his sitting position and shot and killed Starnes as the latter was fleeing. The state sought to sustain a conviction of murder upon an instruction to the effect that if at the very moment of the killing, the accused was in no real or apparent danger, the verdict should be that he was guilty of murder. The court held that, as applied to such a case, the instruction was erroneous, and said that the deliberation essential to malice aforethought in murder is not predicable of any such a situation.
There are cases, of course, in which the instruction would be available, but its use in cases to which it is not justly applicable has been condemned again and again; and this is plainly another case wherein the instruction is not only not applicable, but has actually and harmfully misstated the applicable law, and is, therefore, palpably erroneous, and to the extent that a reversal must be ordered — the authorities already cited being sufficient upon the point. But the following cases might also be examined with profit: Ex parte Wray, 30 Miss. 673; Long v. State, 52 Miss. 23; Jones v. State, 98 Miss. 899, 54 So. 724; Williams v. State, 122 Miss. 151, 84 So. 8; Dalton v. State, 141 Miss. 841, 105 So. 784.
Upon the record before us, there is a grave question, upon a close analysis of that of the evidence which is the more substantial and dependable in its nature, whether appellant should, in any event, have been convicted of any greater offense than manslaughter; but, as the case must go back, we think it better, under the circumstances here presented, to refrain from any such precise analysis of the evidence at this time and to leave that task to the new record if the result of the next trial shall result in another appeal. A new record may perhaps contain an accurate diagram or map of the locus in quo showing distances in feet in aid of such an analysis, there being no such diagram in the present record.
The State introduced two of the eyewitnesses, but two others, Reck and Frishman, were not introduced either by the State or by the defendant. Appellant moved the court that he permitted to introduce Frishman, but to be allowed in so doing to treat him as if an adverse witness. The motion was overruled.
The ancient rule of the common law required the prosecution to introduce all eyewitnesses to the homicide; but this rule has been modified in this state, so that when some of the eyewitnesses have been introduced by the state, the failure by the state to introduce the others or the refusal by the court to allow them to be examined as if witnesses for the state is not error, in the absence of rarely exceptional circumstances. See Morrow v. State, 57 Miss. 836; Hale v. State, 72 Miss. 140, 16 So. 387; Carlisle v. State, 73 Miss. 387, 19 So. 207; Patty v. State, 126 Miss. 94, 88 So. 498; Mitchell v. State, 171 Miss. 4, 156 So. 654.
Reversed and remanded.