Opinion
No. 38582.
January 12, 1953.
1. Appeal — criminal procedure — motion for new trial, when necessary to review.
A contention on appeal that the verdict is against the great weight of the evidence cannot be entertained in the absence of a motion for a new trial particularly assigning that ground.
2. Trial — homicide — instruction as to doubt erroneous but not reversible.
An instruction for the State in a prosecution for homicide which in substance told the jury that the jurors should not hunt for doubts with a view of finding any excuse or apology for their verdict and that they should not indulge in doubts that are merely conjectural but that any doubts which ought to make them pause and hesitate must be reasonable doubts, while erroneous is not of itself ground for a reversal.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Walthall County; T.P. BRADY, Judge.
Breed O. Mounger, for appellant.
I. The lower court erred in overruling the motion made by the appellant at the conclusion of the State's testimony wherein appellant moved that the evidence be excluded and the jury directed to return a verdict for the appellant.
It is urged that the issue upon the motion was not whether the facts, admittedly confusing, were sufficient to create an issue of fact for the jury but rather under the unbroken rule of this State whether they were sufficient to warrant the jury in believing the defendant guilty beyond all reasonable doubt. This rule is, of course, too fundamental to warrant the citation of innumerable authorities and we therefore cite only the most recent announcements thereof by this Court. Ewing v. State, 9 So.2d 879; Miller v. State, 198 Miss. 277, 22 So.2d 164. The last announcement of the rule by this Court was in the case of Westbrook v. State, 202 Miss. 426, 32 So.2d 251, wherein the Court held that a conviction cannot be sustained on proof which amounts to no more than a possibility or even when it amounts to a probability, but it must rise to that height which will exclude every reasonable doubt.
II. The court erred in refusing the peremptory instruction requested by the appellant.
Appellant is conscious of the rule that a jury may in its deliberations see fit to reject the testimony offered by the defendant witnesses and may accept the testimony of the State's witnesses. However, in the case at bar we have the most unusual situation of the State witnesses, with but two exceptions, completely corroborating the testimony of the witnesses for the defendant. It is this unusual situation which made it necessary for the State to refute, or attempt to refute the affirmative testimony of a majority of its witnesses by negative testimony of other witnesses who claimed not to have seen or not to have heard what transpired at the time of the actual shooting.
With the State's case in this state of confusion, the defendant introduced three eyewitnesses who testified clearly as to all of the events giving rise to the difficulty and attending the actual shooting.
III. The court erred in granting, at the request of the State, the instruction numbered three found on page 6 of the record and hereinbelow quoted and referred to. The facts were in a state of confusion due to the issues injected by the State's own witnesses. The first two instructions though presenting abstract principles of law have been upheld by former decisions of this Court, but due to the confusion of the testimony in the case at bar they unquestionably served only to add further confusion. In this situation the court granted State's instruction numbered three.
May we ask, what did this instruction tell the jury to do? The question is answered by a line by line analysis: "The jury shall not hunt for doubts with a view of finding any excuse or apology for their verdict." How can such a charge possibly be said to relate to the trial of a criminal case? Under the law if there exists a doubt as to the guilt or innocence of the accused it is the sworn duty of the jury to find that doubt and to resolve it in favor of the defendant. Yet, they are charged not to look for doubts. The words, "with the view of finding any excuse or apology for your verdict," are but a mandate that they must apologize for any verdict other than that of guilty.
The instruction continues: ". . . . but the doubts which ought to make you pause and hesitate must be reasonable doubts. . . ."
Thus the jury is commanded that first they should not look for doubts but if there be one so large that it is glaring and which they must observe they should: "Pause and hesitate." Pause and hesitate to do what? Send the defendant to the electric chair or find him not guilty? The instruction does not tell the jury what to do when they find a reasonable doubt except that they shall "pause and hesitate." The error of this instruction is that it completely nullifies the rule that the jury must find the defendant guilty from the evidence beyond all reasonable doubt and to a moral certainty.
The instruction concludes with an admittedly correct statement of the law in the abstract but it must be observed that they were first charged to ignore doubts, so as not to apologize for their verdict and further if they found a doubt it was their duty to only pause and hesitate.
J.T. Patterson, Assistant Attorney General, for appellee.
Appellant relies upon the long-established rule, recently announced by this Court in the case of Westbrook v. State, 202 Miss. 426, 32 So.2d 251, wherein the Court held that a conviction cannot be sustained on proof which amounts to no more than a possibility or even when it amounts to a probability, but it must rise to that height which will exclude every reasonable doubt. The Westbrook case was a case wherein the appellant was the only surviving witness to the homicide, and the State relied in a large part on circumstantial evidence. The appellant testified in his own behalf, stating that he shot the deceased in self-defense, and the physical facts supported such contention by the appellant. In the Westbrook case, supra, this Court adhered to the so-called "sole eyewitness" rule, as announced in the case of Weathersby v. State, 165 Miss. 207, 147 So. 481, and many others.
Such is not the case at bar. The defendant was not the only surviving witness to the homicide herein. Eleven eyewitnesses to the homicide testified. The defendant herein did not testify, therefore, his version of the homicide was not before the jury.
The case at bar comes clearly within the rule announced by this Court in the case of Ransom v. State, 149 Miss. 262, 115 So. 208, recently referred to with approval in the case of Robinson v. State, 49 So.2d 413.
The jury was warranted from the evidence herein in finding that the appellant had no reasonable ground for killing the deceased. Out of all the testimony herein, not one witness testified that the deceased had made any threat toward the appellant; nor that the deceased had attacked the appellant in any way whatsoever; nor that the deceased was, at the time he was shot, advancing on the appellant in any manner that the appellant could reasonable have thought that the deceased was about to take his life or do him some great bodily harm. Moreover, the undisputed proof shows that the deceased had nothing whatsoever with which to do the appellant bodily harm except his hands and fists. The only act of violence shown to have been committed by the deceased was that he slapped, or shoved, appellant's wife's hand out of his face, as testified to by State witnesses, or he struck appellant's wife one time, as testified to by defendant's witnesses. Such was not sufficient to justify appellant in shooting and killing the deceased, as recently held by this Court in Fortenberry v. State, 213 Miss. 116, 56 So.2d 56.
The appellant, Hosea Youngblood, was indicted and tried in February 1952, for the alleged murder of Ray Broomfield on December 8, 1951. The jury convicted the accused of the crime of manslaughter and he was sentenced to serve a term of fifteen years in the state penitentiary. Upon his appeal here he assigns as grounds for a reversal of the case (1) that the trial court denied his motion to exclude the evidence at the close of the State's case and direct a verdict in his favor; (2) that he was refused a peremptory instruction at the close of all of the evidence; (3) that the verdict is contrary to the overwhelming weight of the evidence — a ground not assigned in a motion for a new trial; and (4) the granting of instruction No. 3 for the State, the substance of which will be hereinafter set forth.
We shall consider the first two grounds of alleged error above set forth the same as if one assignment for the reason that they involve the single question on appeal here of whether or not the whole evidence was of sufficient weight to present an issue of fact for the jury, as against the plea of self-defense. On that question, it is to be conceded that the testimony, even of the State's witnesses alone, is in hopeless conflict in many particulars as will be hereinafter shown.
The testimony of the State's witnesses as a whole shows that the defendant was seated at the end of a bench in church on the evening of the homicide and that Ray Broomfield, who was later shot by the defendant Hosea Youngblood, came and sat on the same bench near him and began reading aloud from a questionnaire that he had received from the local Selective Draft Board; that the mother of the deceased (the designation of the "deceased" being of course in the present tense, and not as of December 8, 1951, before he was shot) asked that he quit reading aloud, evidently because he was disturbing those near him who were listening to the church services; that the deceased then sought an argument with the defendant about whether the former knew how to read and whereupon the defendant stated that "I have not said anything to you about whether you can read or not"; and that thereupon the defendant got up and went out of the church, with the deceased following him, although some of the State's witnesses say that they went out "side by side" and the shooting occurred on the churchyard shortly thereafter. One or possibly as many as two of the several witnesses for the State testified that the defendant invited him to "come follow me out", but the other witnesses did not hear this invitation extended by the defendant.
That State's evidence further shows that upon seeing the deceased follow the defendant out of the church, the mother and two of the sisters of the deceased left the church and tried to get him to come on back into the church; that he then demanded that they let him alone and threatened violence to his mother unless she would leave him alone; that upon the failure of the mother and sisters of the deceased to be able to persuade him to "come on back" in the church, and as some said "leave Hosea alone", the wife of the defendant intervened and said "let him go ahead, Hosea will stop him", that at that time the wife of the defendant was pointing or shaking her finger in the face of the deceased, and that as he "shoved" her hand from near his face, the defendant said "stand back Willie Mae" and then drew his pistol and shot the deceased in the side; that it was found that the deceased was unarmed, although some of the State's witnesses admitted that he had his left hand "up to his bosom" when the shot was fired by the defendant, while others claimed that he had his hand "in his bosom", whereas one or two of them testified that on the contrary he had his hands "down by his side", all of which would tend to support the theory of self-defense except the testimony of those who said that the deceased had his hands "down by his side" when he was shot — and this testimony was obviously not true since he was shot through his hand and the only bullet that was fired had entered the lower left chest of the victim.
There was other testimony however to the effect that when the wife of the defendant got into the pathway of the deceased, and at a time when the defendant was about ten feet away, the defendant advanced for about half of the distance and shot the deceased who had not attempted to harm the defendant, whereas the wife of the defendant testified that the deceased struck her with his fist; that he threatened "to stop her heart strings from ticking" and made the same threat toward the defendant immediately prior to the shooting; and that the deceased put his hand in his bosom as he was leaving the church, although he was not shot until after a quarrel had occurred on the outside of the church between Broomfield, his mother and sisters, and later between him and the Youngbloods.
Although the proof shows that the only shot fired went through the fleshy part of the left hand of the victim before entering his lower left chest, it is likewise undisputed that the latter was right-handed.
The jury evidently believed that the defendant shot the deceased when the latter either "shoved" or hit the wife of the defendant and that he acted too hastily, even though the deceased was the aggressor at the beginning.
It would unduly prolong this opinion to review in detail all of the conflicting testimony, and it is sufficient to say when it is considered as a whole there was presented an issue of fact for the determination of the jury, and that the case was not one for a peremptory instruction.
(Hn 1) On the third assignment of error, it is to be conceded that if the verdict is against the overwhelming weight of the evidence the defendant would have been entitled to a new trial upon motion duly made in that behalf. But under the rule announced in the case of Young v. State, 212 Miss. 460, 54 So.2d 671, it was held that, "in order to preserve for review here the point that the verdict was contrary to the great weight of the evidence, a motion for a new trial must be made, particularly assigning that ground." Citing Justice, et al. v. State, 170 Miss. 96, 154 So. 265, and in the Young case the Court further stated, (in regard to the question of whether a reversal can be granted here on the ground that the verdict is against the great weight of the evidence): "Inasmuch as no motion for a new trial was made, and the trial judge had no opportunity to rule upon that question, it follows that there has been no error in that respect for us to review here. Faust v. State, 204 Miss. 297, 37 So.2d 315; Holmes v. State, 201 Miss. 509, 29 So.2d 312; Cunningham, et al. v. State, Miss., 200 So. 248; McDougal v. State, 199 Miss. 39, 23 So.2d 920; Dixon v. State, 188 Miss. 797, 196 So. 637; McLendon v. State, 187 Miss. 247, 191 So. 821; Byrd v. State, 179 Miss. 336, 175 So. 190; Davis v. State, 173 Miss. 783, 163 So. 391; Bryant v. State, 172 Miss. 210, 157 So. 346."
(Hn 2) The instruction No. 3 for the State told the jury in substance that the jurors should not hunt for doubts with a view of finding any excuse or apology for their verdict and that they should not indulge in doubts that are merely conjectural, but that any "doubts which ought to make you pause and hesitate must be reasonable doubts, . . . and you should not hesitate to find the defendant guilty because you are able to say, outside of the evidence, that he might have been innocent . . ." The appellant objects to this instruction because it told the jury that it should not "hunt for doubts", and because the instruction cautions the jury not to "pause and hesitate" unless they were troubled with doubts that were reasonable; that the instruction does not tell the jury what to do when they find a reasonable doubt except that they shall "pause and hesitate", and that in considering the case they should not do so with the view of finding any excuse or apology for their verdict.
The criticism of this instruction is not unfounded. In fact, similar instructions have been frequently disapproved by our Court, although the giving thereof has not been found to constitute reversible error. Hemingway v. State, 68 Miss. 371, 8 So. 317; Howell v. State, 98 Miss. 439, 53 So. 954; McNeal v. State, 115 Miss. 678, 76 So. 625. And we take this opportunity of again emphasizing that an instruction similarly worded should not be given. Such an instruction is not needed by the State for presenting the issue for the determination of a jury in any criminal case, and the same is calculated to mislead the jury in some cases.
The other instructions complained of contained correct abstract principles of law, and in our opinion they are not erroneous as applied to the instant case. And while we do not think that instruction No. 3, containing the admonitions complained of, should have been given, the Court has reached the conclusion, after a careful study of all of the evidence, that the guilt or innocence of the accused was peculiarly a question for the jury, and that since this is true we are not justified in reversing the instant case for a new trial on the weight of the evidence, since this point was not preserved for review in a motion for a new trial, as hereinbefore stated.
The judgment appealed from must therefore be affirmed.
Affirmed.
Roberds, Hall, Holmes and Arrington, JJ., concur.