Allen v. State
| Decision Date | 08 June 1925 |
| Docket Number | 24713 |
| Citation | 104 So. 353,139 Miss. 605 |
| Court | Mississippi Supreme Court |
| Parties | ALLEN v. STATE. [*] |
1. CRIMINAL LAW. Instruction held, erroneous, as excluding verdict of manslaughter warranted by evidence.
Instructions that jury might return either of the three verdicts authorized on a conviction of murder, or a verdict of not guilty, thus excluding manslaughter, though the evidence would warrant a verdict thereof, was reversible error, though no instruction on manslaughter was requested.
2 HOMICIDE. Instructions to be limited to issues developed by evidence.
Instructions should be limited to the issues developed by evidence, and so should not make a conviction conditional on defendant at the time he inflicted the blows, not having been in some real or apparent danger at the hand of deceased, when there is no suggestion of such danger.
APPEAL from circuit court of Jasper county, HON. W. L. CRANFORD Judge.
Mat Allen was convicted of murder, and he appeals. Reversed and remanded.
Judgment reversed and cause remanded.
Deavours & Hilbun and J. A. McFarland, for appellant.
The court erred in granting instruction No. one for the state, reading as follows: "The court instructs the jury for the state that you may return either of the following verdicts in this case to-wit:" then follow three forms of verdicts, one of them being, "We, the jury, find the defendant guilty as charged;" another being, "We, the jury, find the defendant guilty as charged and recommend that he be given life imprisonment in the state penitentiary;" another one being, "We, the jury, find the defendant guilty as charged but fail to agree on the punishment;" and the last being, "We, the jury, find the defendant not guilty."
The court will note that no provision is made in this instruction, and no provision is made in any other instruction given for the state or for the defendant, authorizing the jury to return a verdict against the defendant as guilty of manslaughter. In other words the instructions for the state restrict the jury absolutely to passing upon the question of the defendant's guilt of murder only. We contend that this was error. And we further contend that the trial court ought not to have given instruction No. 1 as given, without first modifying it by adding another form of verdict which the jury might render if they found the appellant guilty of manslaughter, which would have required the addition of another form of verdict that the jury might render, to-wit: "We, the jury, find the defendant guilty of manslaughter." The vice of this instruction number one is made more apparent when it is considered that there is no statement in the instruction as to the jury's belief beyond every reasonable doubt, of the defendant's guilt of the charge of murder made against him. There is no statement in the instruction as to what the jury must believe nor as to the clearness with which they must believe what they do believe, in order to justify them in returning either one of the first three verdicts mentioned in the instruction.
If as a matter of fact this is a case of manslaughter, or if as a matter of fact, the jury was authorized in this case to return a verdict of manslaughter, then by this instruction for the state (there being no curative instruction in the case) the jury was restricted to the consideration of a charge that was not clearly made against the appellant and that the jury, from the instructions of the court, did not understand, and could not understand, was made at all against the appellant. It would follow that if this is a case of manslaughter, or can reasonably be made a case of manslaughter, then under the instructions of the court, the appellant has not been tried for the crime he actually committed; if he committed any crime, or the crime which he probably committed.
We contend that it is patent error for an instruction to be phrased in a murder case in the words in which this instruction is phrased. Section 1499, Code 1906, (section 1257, Hemingway's Code).
Now this section of the code expressly provides that on the trial of a defendant for any offense, the jury may find the defendant guilty of that offense as charged . . . or may find him guilty of an inferior offense, or other offense, the commission of which is necessarily included in the offense with which he is charged in the indictment.
A charge of manslaughter is included in a charge of murder and a defendant charged with murder may be found guilty of manslaughter. We believe we can safely assert that the jury that tried appellant never had any information derivable from the instructions of the court that it was authorized to return a verdict of guilty of manslaughter against the appellant. And yet that such was the law is beyond the suggestion of any doubt.
Is the liberty of a man for the remainder of his natural life to be sacrificed by the court, because the trial court in prescribing the form of verdict that the jury could render, thereby restricted the jury to a verdict of guilty or not guilty of murder, when this instruction of the court is really not the law of the land?
We further submit that this instruction even if it had provided for a verdict of manslaughter, would not have been proper and was not proper unless there had been qualifying words in its preliminary part indicating to the jury the degree of belief that they must have before they are authorized to return a verdict of either murder or manslaughter, that is belief of guilt from the testimony beyond every reasonable doubt.
II.
The court erred in granting instruction number two for the state reading as follows: "The court instructs the jury for the state, that if you believe from the evidence in this case beyond a reasonable doubt that defendant, Mat Allen, did unlawfully, willfully, feloniously and of his malice aforethought kill and murder Jim Bethea, a human being, in manner and form as charged in the indictment, and at a time when he the said Mat Allen was in no real or apparent danger of losing his own life or sustaining some great bodily harm at the hands of deceased, then in that event it is your sworn duty to find defendant guilty as charged."
A part of the criticism that we direct towards this instruction is equally applicable to instruction number three for the state, which is hereinafter referred to. It is of course fundamental that the instructions as to the law of a case ought to be applicable to the case as made by the evidence. The instructions for the state ought to develop and elucidate the law as stated in the instructions as being applicable to the facts of the case as revealed by the testimony of the witnesses. On the trial of any murder case, of course the state has, or ought to have, a theory as to how the killing occurred, and the testimony of the witnesses ought to be grouped about and around this theory; or if the theory is not to be developed until after the testimony is heard in court, then the announcement of the law that governs the case in the instructions of the court ought to be in harmony with and consistent with the theory of the prosecution, regardless of whether that theory is adopted by the state before the testimony has been heard in court or after it has been heard in court. And it is error for instructions to be given that have no application to the case as developed by the testimony. It would be improper for the court to give an instruction in reference to larceny in a murder case. The instructions given in reference to larceny might be correct instructions so far as the law of larceny is concerned, but that law being wholly inapplicable to a case of murder, such instructions would be erroneous, It is a wise rule that has been announced many times by this court that the instructions ought to be applicable to the case as developed by the testimony. Staiger v. State, 110 Miss. 557; Johnson v. State, 78 Miss. 627.
There is nothing in the testimony of any witness in this case either for the state or the defendant that indicates that there was any difficulty between the appellant and the deceased. There is nothing in the testimony anywhere that squints of any such matter. There is no pretense that the appellant was ever at any time in real or apparent danger of losing his own life or sustaining some great bodily harm at the hands of the deceased. It is not shown or hinted at anywhere in the testimony by any witness on either side, that there was ever any contest between the appellant and the deceased. It was no part of the theory of the state...
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...Miss. 548, 83 So. 738; McLeod v. State, 130 Miss. 83, 92 So. 828; Hays v. State, 130 Miss. 381; Stevenson v. State, 136 Miss. 22; Allen v. State, 139 Miss. 605; Dalton State, 141 Miss. 841; Tatum v. State, 142 Miss. 110; Davis v. State, 157 Miss. 669. Argued orally by C. O. Japp, for appell......
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