Bridges v. State
| Decision Date | 03 June 1929 |
| Docket Number | 27994 |
| Citation | 154 Miss. 489,122 So. 533 |
| Court | Mississippi Supreme Court |
| Parties | BRIDGES v. STATE |
(Division B.)
1 HOMICIDE. Instruction precluding conviction of other than manslaughter held properly refused under facts showing murder. Instruction that jury could not find defendant guilty of murder but if they found him guilty at all it must not be for a higher degree of homicide than manslaughter held properly refused, where eyewitnesses to tragedy testified distinctly and positively to state of facts which made out clear case of murder.
2. CRIMINAL LAW. Defendant not having jury polled could not introduce jurors as witnesses on motion for new trial to impeach their verdict.
Where defendant did not take advantage of right to have jury polled when jury returned verdict finding defendant guilty and certified they were unable to agree as to his punishment and asked mercy of court, defendant could not reach matter by introducing jurors as witnesses on motion for new trial to show that they would not have returned such verdict if they had known punishment it would carry.
3. CRIMINAL LAW. Jurors may not impeach their verdicts.
Jurors may not be heard as witnesses to impeach or qualify their verdicts.
4. CRIMINAL LAW. In verdict finding defendant guilty and stating jury was unable to agree regarding punishment "and ask mercy of court," quoted words must be treated as surplusage. In murder prosecution, where jury returned verdict, "We, the jury, find defendant G. B., guilty as charged In indictment and certify that we are unable to agree as to his punishment and ask mercy of court," after having been informed that if jury found defendant guilty but were unable to agree on punishment then it would be court's duty to sentence defendant to penitentiary for life, words, "and ask mercy of court," must be treated as surplusage.
5. CRIMINAL LAW. Assignments of error not argued are waived. Assignments of error not argued are waived.
APPEAL from circuit court of Lawrence county.
HON. J Q. LANGSTON, Judge.
Governor Bridges was convicted of an offense, and he appeals. Affirmed.
Affirmed.
E. B. Patterson and C. E. Gibson, both of Monticello, for appellant.
Where there was conflicting evidence as to who was the aggressor, and where testimony shows that the killing was done in the heat of passion and without malice, it was error to refuse the following instruction:
"The court instructs the jury for the defendant that they shall not find defendant guilty of murder, but if they find the defendant guilty at all it must not be for a higher degree of homicide than manslaughter."
112 So. 685; Pigott v. State, 65 So. 583, 107 Miss. 552.
It was error on the part of the court to refuse the defendant the right to show on motion for a new trial, that the jury intended to bring in a verdict that would have permitted the court to give the defendant a lesser sentence.
J. A. Lauderdale, Assistant Attorney-General, for the state.
A high degree of sudden and resentful feeling will not alone palliate an act of homicide committed under its influence. It is essential that the excited and angry condition of the party committing the act, which would entitle him to the milder consideration of the law, should be superinduced by some insult, provocation, or injury, which would naturally and instantly produce, in the minds of ordinarily constituted men, the highest degree of exasperation.
Preston v. State, 25 Miss. 383.
Where defendant did not poll jury when jury returned verdict he could not thereafter use jurors as witnesses to impeach their own verdict.
The court has repeatedly held that that part of the verdict of the jury requesting the mercy of the court is surplusage, and it is not necessary that the court pay any attention to such recommendation.
McDonald v. State, 109 So. 29; Penn v. State, 62 Miss. 450; State v. Harris, 10 So. 478.
Errors not assigned and assignments of error not argued are waived.
Pope v. State, 108 Miss. 706; Davis v. State, 67 So. 662; Harris v. State, 142 Miss. 342; Chase v. State, 147 Miss. 694.
The appellant contends that it was error in the trial court to refuse the following instruction requested by appellant "The court instructs the jury for the defendant that they shall not find defendant guilty of murder, but if they find defendant guilty at all it must not be for a higher degree of homicide than manslaughter." Of the several eyewitnesses to the tragedy more than one testified distinctly and positively to a state of facts which made out a clear case of murder. In the face of this testimony, it would have been highly improper to grant the quoted instruction, which, under its plain terms, would have been a peremptory instruction in so far as concerns the charge of murder. No distinct or separate instruction on manslaughter was requested, and we are therefore not called on to express an opinion whether the case was such as to have justified a separate manslaughter instruction as one of the units among those to be...
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