Allen v. State

• Decision Date: 07 May 1906
• Citation: 40 So. 744,88 Miss. 159
• Court: Mississippi Supreme Court
• Parties: JACOBUS L. ALLEN ET AL. v. STATE OF MISSISSIPPI

40 So. 744

88 Miss. 159

JACOBUS L. ALLEN ET AL. v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

May 7, 1906

April 1906

FROM the circuit court of, first district, Carroll county, HON. J T. DUNN, Judge.

Allen and another, the appellants, were jointly indicted for the murder of Ann Coker, the wife of appellant, Jefferson Coker were tried together and convicted, Allen of murder and Coker of manslaughter, and both appealed to the supreme court. The facts are sufficiently stated in the opinion of the court.

Judgment reversed and cause remanded for a new trial.

Hughston & McEachern, for appellants.

The jury were not warranted under the facts of this case in bringing in a verdict of separate and distinct grades of offense as to the two men. The only issue presented by the evidence in this case was whether the appellants were responsible for the death of the deceased. If the state's theory is correct, and they were responsible for the death of deceased, there was no proof whatever before the jury to show the circumstances attending the death of the deceased, or the manner in which her death was accomplished. This theory discards absolutely the testimony of Jemima Coker, the daughter of the deceased and the only eye witness testifying in the case, and accepts in full the circumstances that were discovered by the witnesses after the death of deceased. This testimony is as strong against one of the appellants as against the other. The only circumstance relied upon for the conviction of appellants, and on which the jury acted, is the fact that the tracks of deceased were seen indicating that she made them while running away from the house and the tracks of two men made while following her, and these tracks were pointed out by appellants to the witnesses as their tracks; tracks of the men, made while returning to the house were seen, but the woman's tracks could not be traced back to the house; and the further fact that two of the witnesses discovered bruised marks on the neck of the deceased, beginning about midway between the front and back of the neck and extending backward toward the back of the neck and along the shoulders; and the further fact of an autopsy held by two physicians seventeen days after the burial of the deceased, and the opinion of said physicians based upon their examination of said body at said time. These are all of the circumstances tending to show the guilt of the appellants, aside from the fact that the appellants were present at the time of the death of the deceased. There is no fact or circumstance that will inculpate one of the appellants more than the other. The evidence applies equally against both, and no mitigating circumstances are shown whereby the offense of one is less than the other; such being the case, one could not have been guilty of murder and the other only of manslaughter. We admit that as a general rule a crime may be committed jointly by two or more defendants and one be guilty of a greater and the other of a lesser degree, and that the jury may so find, but that is when the facts and the circumstances are detailed to the jury so that the jury can pass upon the conduct of each and the surroundings of each and judge of the motives that prompted each, but in a case like this where there are no detailed circumstances of the death, where the evidence is purely and simply circumstantial, and the question presented is whether the defendants were responsible for the death, and where those circumstances proven apply equally to both of defendants, there can be no question as to the rights of the jury and they cannot bring in separate and distinct verdicts and findings on these facts. Davis v. State, 75 Miss. 637 (s. c., 23 So. 770, 941); Bishop on Criminal Procedure (3d ed.), secs. 1036, 1037, and note.

There is nothing in this record to authorize a jury in finding appellants, or either of them, guilty of manslaughter. There is no evidence tending to reduce the grade of crime, if crime had been committed. The only question that the jury had to determine was whether appellants were guilty of acts which constituted a crime; then when the court instructed the jury that they might find the appellants guilty of manslaughter, it compromised the rights of appellants to have the jury to determine this single question, and it caused the jury to take license from this instruction to find a verdict upon testimony upon which they would shrink from rendering a verdict of guilty with higher penalties attached. If the evidence in this case does not warrant the conviction of appellant, Coker, on the charge of murder, it of course does not warrant his conviction of manslaughter, for the question in this case is not as to the grade of the offense, but as to the connection of the accused with it, if any had been committed, and the instruction as to the grade of the offense is misleading and harmful, and the court therefore erred in granting the instruction which authorized the jury under this state of facts to bring in a verdict of manslaughter. Virgil v. State, 63 Miss. 317.

Besides the evidence absolutely fails to show that appellants were guilty of any crime at all, even taking the testimony introduced by the state; taking all the...