Opinion
No. 27355.
March 11, 1929. Suggestion of Error Overruled March 25, 1929.
1. CRIMINAL LAW. Denying continuance held not erroneous under evidence concerning probability of procuring absent witness.
Denial of motion for continuance on the ground of absence of a witness held not erroneous under testimony failing to show with any degree of certainty that presence of witness could have been had at the next term of court.
2. JURY. Juror present at part of preliminary investigation, but testifying that he had no impression and would decide case on law and evidence, was not disqualified.
Juror in murder trial, having been present at part of preliminary investigation before a justice of the peace, but testifying that he heard but very little of the testimony, and had no impression or opinion as to guilt or innocence of defendants, and could and would decide the case on the law and evidence, was not disqualified.
3. HOMICIDE. Manslaughter instruction in murder prosecution, though improper under evidence, was only harmless error.
Giving of instruction on manslaughter in murder prosecution, where defendants were convicted of manslaughter, though improper under evidence in the record, nevertheless constituted harmless error.
APPEAL from circuit court of Panola county, Second district, HON. GREEK L. RICE, Judge.
Herbert M. Fant and R.T. Keyes, for appellants.
The trial court erred in not granting a continuance. Irene Pilcher was an eyewitness to the shooting and a most material witness. She testified at the habeas corpus trial, and was present at the committing trial. This fact attests the importance and value the appellants placed upon her presence and testimony in the trial court. The affidavit for continuance was timely made and in regular and statutory form. Under very similar circumstances and state of facts this court has almost invariably reversed such cases, and upon the authority of the following cases we urge that the judgment must be reversed for the failure of the lower court to grant the continuance. Whit v. State, 85 Miss. 208, 37 So. 809; Montgomery v. State, 85 Miss. 330, 37 So. 835; Caldwell v. State, 85 Miss. 283, 37 So. 816; Scott v. State, 80 Miss. 197, 31 So. 710; Walton v. State, 87 Miss. 296, 39 So. 689; Vallm v. State, 96 Miss. 651; Anderson v. State, 50 So. 554; Dobbs v. State, 51 So. 915; Childs v. State, 146 Miss. 794, 112 So. 23. Irene Pilcher was only temporarily out of the jurisdiction of the court. The testimony shows that she had been living in the second district of Panola county, Mississippi. She was a resident citizen of the same. Her father lived there and still lives there. She had gone to Birmingham, Alabama, only about three weeks before the trial. She had gone there to be with her husband who was temporarily employed there as a carpenter. She had left a part of her belongings. She had told her father she wouldn't be gone long. She had gone before and didn't stay long. There is no reason to disbelieve the testimony of her father, Bud Moore, that she would be back to testify at the next term of court. The appellants were given no time to get in touch with Irene Pilcher in Birmingham to procure her presence. They were forced to go to trial within three days after the return of the indictment. It was not until the day of the trial that they knew she would not be present. Undoubtedly the case of the appellants was greatly prejudiced by the absence of Irene Pilcher. Cade v. State, 96 Miss. 434, is directly in point. In reversing that case because of the absence of a witness who was in another state. Judge MAYS speaking for the court said: "It is true that it is shown that the witness is beyond the jurisdiction of the court, and if there had elapsed any sufficient length of time between the return of the indictment and the date of the trial for the defendant to have procured this witness we would not interfere with the court's ruling, but the trial was the second day after the indictment was found, thus giving the defendant no reasonable time to exert himself to procure witness." See, also, Knox v. State, 97 Miss. 523.
In view of the fact that the appellants were forced to excuse Mr. Birdsong by one of their peremptory challenges, all of which were finally exhausted, under the ruling of this court in Logan v. State, 50 Miss. 269; Hubbard v. Rutledge, 57 Miss. 7; Klyce v. State, 79 Miss. 652, 31 So. 339; Fugate v. State, 82 Miss. 189, 33 So. 942; Langston v. State, 129 Miss. 394, 92 So. 554, and others, we shall proceed with our argument on this assignment as if Mr. Birdsong was a member of the trial jury in the case. We feel sure that Mr. Birdsong was honest in his belief that he had formed no opinion, but we submit to this court that no human can hear witnesses testify from the witness stand under their solemn and sacred oath without forming an opinion of some kind one way or the other. We submit further that no man can so disconnect his mind from his ears as to hear sworn testimony and not form some sort of an opinion or impression in regard to it. When Mr. Birdsong heard these witnesses testify for the state and afterwards heard the ruling of the court that the appellants be not allowed bond, he either believed or disbelieved the witnesses whom he heard testify and either thought the magistrates were correct or incorrect in denying appellant's application for bond; whichever he did, he formed an opinion that rendered him wholly incompetent as an impartial juror. Consequently, we are led to the conclusion that Mr. Birdsong had an opinion, formed from hearing the witnesses, as to the guilt or innocence of these appellants, whether he knew it or not.
The state's contention was that the appellants killed the deceased with a deadly weapon, to-wit: a pistol. If they did, they were guilty of murder. However, the appellants' contention was that Sam Griffin killed the deceased and that they (the appellants) did not fire a shot. If they did not, they were guilty of no crime whatsoever. It is a clear case of murder or nothing and the court erred in giving manslaughter instructions. The question for this court to decide now is whether or not this error in the trial court was harmful to the appellants. Most cases of homicide may be divided into two classes, as follows: (1) Those where only the nature and quality of the act are to be determined and (2) those where only the identity of the slayer is to be determined. Rarely ever do we find an instance where both questions are presented at the same time for determination. As we read the various decisions of this court on the question, we understand the rule to be as follows: (1) Where the killing is admitted by the accused and only the nature and quality of the act remain to be determined, a manslaughter instruction is harmless, if the facts are sufficient to support a verdict of guilty of murder. Calicoat-Strickland v. State, 131 Miss. 169, 95 So. 318. (2) Where the killing is denied by the accused, it being a case of murder or nothing, and only the identity of the slayer remains to be determined, a manslaughter instruction is reversible error. Virgil v. State, 63 Miss. 317. (3) Where the killing is murder or nothing and the jury, without any manslaughter instruction from the court, returns a verdict of guilty of manslaughter, it is error on the part of the jury, but in favor of the accused, and therefore harmless. Virgil v. State, supra. This court has stated in a number of cases that giving manslaughter instructions in such cases is error but is usually an error in favor of the appellant of which he cannot complain. Rolls v. State, 52 Miss. 391; Huston v. State, 105 Miss. 414, 62 So. 621; Calicoat-Strickland v. State, 131 Miss. 169, 95 So. 318; Stevenson v. State, 136 Miss. 22, 100 So. 525; White v. State, 142 Miss. 484, 107 So. 755; Goss v. State, 144 Miss. 420, 110 So. 208; Alexander v. State, 110 So. 367, 145 Miss. 675; Barnett v. State, 146 Miss. 893, 112 So. 586; Blalock v. State, 148 Miss. 1, 113 So. 627; Everett v. State, 147 Miss. 570, 113 So. 186; Taylor v. State, 148 Miss. 713, 114 So. 823. The Calicoat-Strickland case, supra, is the last instance we find where this court has gone into the merits of the question and has given a full discussion of the same, the opinions since that case merely citing the Calicoat-Strickland case as its sole authority.
At first glance it might seem that the case at bar is covered by the decision in the Calicoat-Strickland case, and the cases decided under it. However, after a close examination we find that it is not, but is covered completely by the case of Virgil v. State, 63 Miss. 317, wherein the appellant was accused of the murder of an infant by burning a house, and the sole question was whether or not he burned the house. In that case the court said: "It was error to instruct the jury that it might find the defendant guilty of manslaughter. Such an instruction is, ordinarily, free from objection in trials for murder, because it is favorable to the defendant, who may not complain if a more favorable view is taken of his case than the facts justify, but in this case the issue was, who committed the act which caused the death? There could be no difference of opinion as to the grade of the offense of the perpetrator. . . . The just objection to such an instruction in such case is that it compromises the right of the accused to have the jury determine the single question whether or not he is guilty of the act which constituted the crime. The danger from such an instruction is that the jury may take license from it to find a verdict for manslaughter upon testimony on which it would shrink from rendering a verdict of guilty of the higher crime charged. . . . If the evidence in such case does not warrant conviction of the charge of murder, it, of course, does not of manslaughter, for the question is not as to the grade of the offense, but as to the connection of the accused with it, and an instruction as to the grade of the offense, is misleading and harmful." The circumstances in the case at bar are very similar to those in the Virgil case, supra; in the case at bar the sole inquiry is, who is guilty, and there is no room for the inquiry, of what is he guilty, and the trial court committed error prejudicial to the appellants by injecting the latter into the case.
Rufus Creekmore, Assistant Attorney-General, for the state.
Counsel made a motion for a continuance of this case because of the absence of the defense witness, Irene Pilcher. The testimony on the motion was to the effect that the witness had gone to Birmingham, Alabama, with her husband who was a carpenter and was doing carpenter work there; that when she left she stated that she would be back after a while, and left some of her belongings with her father. The testimony also showed that Irene's husband had been in jail shortly before he left Mississippi, and that a letter had been received from Irene since she arrived in Birmingham, in which she said nothing about coming back to Mississippi. The rule in this state is well settled that where the only evidence which the absent witness would testify to is furnished by other witnesses who were present on the trial of the case and who testified thereon, then the evidence of the absent witness is cumulative, and the defendant is not entitled to a continuance in order to secure the attendance of such absent witness. Nelms v. State, 58 Miss. 362; Wells v. State, 18 So. 117; Trim v. State, 33 So. 718; ___ v. State, 90 Miss. 806, 44 So. 772; Moore v. State, 144 Miss. 649, 110 So. 216; Clayton v. State, 150 Miss. 812, 117 So. 127. In the case at bar, the only facts which the absent witness would testify to were testified to by Willie Moore, and Cornice Moore. It is, therefore, respectfully submitted that inasmuch as the testimony of this witness in its entirety was furnished by other disinterested witnesses, who had the same opportunity of observing the facts as did the absent witness and who did actually testify in detail as to everything which the absent witness would have testified to, then the court was not in error in overruling the motion for a continuance, because if such testimony were had it would only be cumulative testimony and would add nothing to the defendant's case.
Counsel first argue that one of the prospective jurors, as to whom the defendant's challenge for cause was overruled, was an incompetent juror, because he had heard from the witnesses in the case some of the facts. This prospective did not actually sit as one of the jury which tried the case, but he was excused by the defendant peremptorily, and in the selection of the jury all of the defendant's peremptory challenges were exhausted. The record fails to show that the defendant challenged any other juror for cause, who was not excused nor does it show that the jury which tried the defendant was not a fair and impartial jury. Counsel in their argument have stated the rule to be that since all of the defendant's peremptory challenges were finally exhausted, that this assignment of error must be considered as if this prospective juror was actually one who sat as a member of the trial jury. In support of this statement, counsel cite the cases of; Hubbard v. Rutledge, 57 Miss. 7; Klyce v. State, 79 Miss. 652, 31 So. 339; Langston v. State, 129 Miss. 394, 92 So. 555. The state at the outset disagrees with counsel as to this statement of the law. In the report of Hubbard v. Rutledge, supra, it is only shown that the defendant exhausted his peremptory challenges before the panel was completed, but does not show whether or not the defendant thereafter challenged other jurors for cause who stayed on the jury panel as members of the jury which tried the case. In the Klyce case, supra, the opinion merely states that the defendant exhausted his peremptory challenges, and, therefore, was in a position to complain. Neither this case nor the Hubbard case shows that the appellant had a trial by a fair and impartial jury. In the Langston case, supra, the incompetent jurors actually sat on the trial of the case and so the defendant there did not have a fair and impartial jury. Whatever rule might be inferred from the statement of the court in the early cases of Hubbard v. Rutledge and Klyce v. State, that rule certainly has been modified by the later decisions of this court. The Constitution does not guarantee to a defendant anything other than a trial by a fair and impartial jury. If he is actually tried by a jury which is a fair and an impartial jury, within the meaning of the Constitution, then he has not been deprived of any of his rights, and is in no position to complain. Smith v. State, 61 Miss. 754; Steele v. State, 76 Miss. 387; Lewis v. State, 85 Miss. 35; Ferguson v. State, 107 Miss. 559, 65 So. 584; Barnett v. State, 146 Miss. 893, 112 So. 586; McAllister v. State, 147 Miss. 180, 113 So. 179; Carter v. State, 147 Miss. 171, 113 So. 177. None of the cases which were cited by counsel for defendant are authority for reversing the action of the trial court in this case, all being easily distinguishable from the case at bar on their facts. In Penn v. State, 62 Miss. 450, the court held that the fact that one of the jurors had talked with the witnesses does not of itself make the juror incompetent, provided he stated that he had no opinion as to the guilt or innocence of the accused. See, also, Greene v. State, 72 Miss. 522; Schwartz v. State, 103 Miss. 711, 60 So. 732; Howell v. State, 107 Miss. 568, 65 So. 641; Donahue v. State, 142 Miss. 20.
Counsel next argue that the court was in error in granting the state a manslaughter instruction, saying that inasmuch as the defense was that the defendants did not do the killing, the crime could only be murder or nothing, and, therefore, a manslaughter instruction was erroneous. In support of this argument, Virgil v. State, 73 Miss. 317, is cited. Counsel also cite numerous other cases, which have been decided by this court, which hold that the giving of manslaughter instructions is not such an error as appellant can complain of. The argument made, however, is that all of these cases were cases where the defense was self-defense and not a defense or non-participation in the crime. Since the Calicoat-Strick-land case was tried, the Virgil case has been overruled by three other cases, impliedly by two of them, and expressly so in the third. In Goss v. State, 144 Miss. 420, 110 So. 208, and Alexander v. State, 145 Miss. 675, 110 So. 367, both of which cases are cited by counsel in their brief, the testimony for the state made out a case of murder, while the testimony for the defendant tended to establish an alibi. The court granted a manslaughter instruction, and on appeal, the supreme court affirmed the cases, following in each of them, without expressly overruling the Virgil case, the principle announced in the Calicoat-Strickland case. In the case of Taylor v. State, 148 Miss. 713, 114 So. 823, a case which is also cited by counsel in their brief, the court expressly overruled the Virgil case, and in the course of its opinion said the following: "Consequently, the case of Virgil v. State, 63 Miss. 317, and other cases in line with the doctrine therein announced, are hereby expressly overruled and the doctrine as announced in the cases of Goss v. State, supra, and Alexander v. State, supra, that `on the trial of a defendant for murder, where the evidence would sustain a verdict of guilty of murder, but not manslaughter he cannot complain of the giving of a manslaughter instruction at the instances of the state,' is reaffirmed. The judgment of the court below will therefore be affirmed."
Argued orally by Herbert M. Fant and R.T. Keyes, for appellant, and Rufus Creekmore, for the state.
In the circuit court of Panola county, the appellants, Walter Samuels and Bill Overall, were indicted and tried for murder, were convicted of manslaughter, and were sentenced to the state penitentiary for three years, and from this conviction and sentence this appeal was prosecuted.
The appellants denied that they, or either of them, fired a shot at the time of the difficulty in which the deceased was killed, and they offered testimony tending to show that the fatal shot was fired by one Sam Griffin, but a statement of the facts, as testified to by the several witnesses, is unnecessary in disposing of the questions raised by the assignments of error.
The appellants assign as error the action of the court below in overruling a motion for a continuance on the ground of the absence of a witness who, it was alleged, would testify that she saw the shooting, and that neither of the appellants fired a shot, but the shots that killed the deceased were fired by Sam Griffin. From the testimony offered in support of this motion for a continuance, it appears that this witness and her husband lived in Panola county until a short time before the trial in the court below. The husband of this witness was convicted of some crime, and served a term in jail, and, after he was released from jail, he returned to his former home in Birmingham, Alabama. About three weeks before the trial of this case in the court below, the witness moved to Birmingham to join her husband, who was engaged in carpenter work in that city. For about four months before she left Panola county some of her household goods were stored at her father's home, and she did not move these goods. The balance of her household goods were moved to Birmingham. The father of this proposed witness testified that she told him that she would be back after a while, but that he did not know when she would return to Mississippi.
Aside from any consideration of the question of whether or not this testimony would have been merely cumulative, we are of the motion that the testimony offered for and against the motion fails to show with any degree of certainty that the presence of this witness could have been had at the next term of the court, and, consequently, the court below committed no error in ruling that the trial should proceed.
Appellants next assign as error the action of the court below in overruling their challenge of a certain juror for cause, thereby causing them to use one of their allotted peremptory challenges to remove this juror from the panel.
From that part of the voir dire examination of this juror which is in the record, it appears that this juror was present at a part of the preliminary investigation made of the matter before a justice of the peace, but the juror testified that he heard but very little of the testimony at this investigation; that he was in and out, and was so far back that he did not get much out of it; that he had no impression or opinion as to the guilt or innocence of appellants, and could and would decide the case on the law and the evidence. The examination of this juror failed to disclose any disqualification, and the court below committed no error in overruling the challenge.
Finally, the appellants complain of the giving of a manslaughter instruction at the request of the state.
Conceding, for the purpose of this decision only, that on the evidence in this record the manslaughter instruction was improper, the error was harmless. Taylor v. State, 148 Miss. 713, 114 So. 823.
The judgment of the court below will therefore be affirmed.
Affirmed.