Bell v. State

• Decision Date: 07 January 1907
• Citation: 89 Miss. 810,42 So. 542
• Court: Mississippi Supreme Court
• Parties: ALBERT BELL v. STATE OF MISSISSIPPI

42 So. 542

89 Miss. 810

ALBERT BELL v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

January 7, 1907

November 1906

FROM the circuit court of Attalla county, HON. J. T. DUNN, Judge.

Bell the appellant, was indicted and tried for the murder of one David White; was convicted of manslaughter, sentenced to the penitentiary for a term of years, and appealed to the supreme court.

The killing of White occurred at night in a room of a hotel in the town of Kosciusko, and was the result of a quarrel which arose between the parties while gambling. Immediately after the tragedy the appellant fled to his home in the country but notified the sheriff of the county, the next day, that he would come to Kosciusko and surrender himself in a very short time, and this he did on the ensuing day. Appellant's defense was that the deceased, being under the influence of intoxicants when the quarrel arose, advanced upon him with a large knife, and that the shooting was in self-defense. No person was present in the room at the time of the shooting save appellant and the deceased; one Dowell, a friend of appellant, was present when the quarrel began, but left the room before the shooting. The jury found appellant guilty of manslaughter. He appealed from a judgment based thereon, and this court reversed the judgment and remanded the case for new trial. Bell v. State, 38 So. 795.

A second trial being had, the jury again found appellant guilty of manslaughter, and he prosecuted this, his second appeal to the supreme court, assigning as error the refusal of the court below to grant the two instructions quoted in the opinion of the court.

Judgment reversed and cause remanded.

A. F. Fox, for appellant.

It was reversible error for the court below to refuse the instruction asked by appellant to the effect that if the jury had any question in mind, resulting from the flight of the appellant shortly after the killing, they should, in connection with such circumstance, also bear in mind that he forthwith notified the sheriff that he would surrender himself into the sheriff's hands.

The court below further erred in refusing the instruction asked by appellant to the effect that before the jury could convict the evidence should be so strong as to convince each juror beyond every reasonable doubt; and that if any one of the jury had such doubt of appellant's guilt, there should be no conviction. State v. Rorabacher, 19 Iowa 154; Hamilton v. State, 57 Iowa 15. Nor were the errors thus committed by the court below in refusing these two instructions cured by the other instructions granted in the case. 2 Thompson on Trials, 181.

R. V. Fletcher, assistant attorney- general, for appellee.

It is contended by the learned counsel for appellant that the refusal of the court below to grant the instruction marked B, and being to the effect that the jury should bear in mind the surrender of the appellant a few days after the shooting, at the same time they considered appellant's flight immediately following the shooting of deceased, constituted palpable error. It cannot be denied that there is grave doubt as to the action of the court in refusing the instruction, but if the refusal were error, it is respectfully submitted that it is cured by the seventeenth instruction granted appellant, charging the jury that flight, if proven, should only be considered as a mere circumstance of guilt.

As regards the second contention of opposing counsel in regard to the doubt of any one individual juror, as expressed in the refused instruction asked by appellant, if the refusal of the same were error, it is submitted that appellant's third instruction, granted by the court, cured the error, being in very nearly all respects similar in meaning, if not in words.

OPINION

WHITFIELD, C. J.

This was a very close case upon the evidence, making it, consequently, of vital importance that there should be no material error of law committed by the court below against the appellant. The court refused to give for the appellant instruction B, which is as follows: "The court instructs the jury that in connection with the circumstances that, after the killing of David White, the defendant went to his home, they may also consider the fact, if such is proved, that on the day after the night on which he returned home he voluntarily notified the sheriff of Attala county that he would come in on Friday, the next day, and give himself up, and that on Friday, the next day, he did voluntarily come to the town of Kosciusko, and voluntarily surrendered himself to the sheriff." It is insisted by the assistant attorney-general that this was cured by the seventeenth instruction given for appellant, which was as follows: "The court instructs the jury, for the defendant, that flight, even when proved, may only be considered as a circumstance of guilt; and, unless the evidence in this case is so positive and certain as to produce in the minds of the jury the solemn conviction that the defendant, beyond all reasonable doubt, is guilty, then their verdict should be for the defendant." We do not think so. It was clearly error to refuse this instruction.

The court also refused instruction A, which is as follows "The court further instructs the jury, for the defendant, that each and every one of you is entitled to have his own conception of what constitutes a reasonable doubt of the guilt of the defendant; that before you can convict this defendant the evidence must be so strong that it convinces each juror of the defendant's guilt beyond every reasonable doubt; and if, after a consideration of the evidence, or the want of evidence, a single juror has a reasonable doubt of the defendant's guilt, then you cannot convict him under this charge." The assistant attorney- general insists that this is cured by the third instruction given for the appellant, which is as follows: "The court charges the jury that, if they have a reasonable doubt of the guilt or innocence of the accused,...