Brown v. State

• Decision Date: 06 February 1928
• Docket Number: 26506
• Citation: 115 So. 433,149 Miss. 239
• Court: Mississippi Supreme Court
• Parties: BROWN v. STATE. [*]

115 So. 433

149 Miss. 239

BROWN v. STATE. ^[*]

No. 26506

Supreme Court of Mississippi

February 6, 1928

Division B

1. HOMICIDE. In absence of conspiracy, act of one causing death is not chargeable to others, unless they aided or abetted.

There being no evidence of conspiracy, the act of one of partyin bringing about the death of the deceased cannot be chargeable to the others, unless during the fray they aided or abetted in the act which caused the death.

2 HOMICIDE. Evidence held sufficient for jury that others than the one striking fatal blow aided and abetted.

Evidence that all of the B.'s, including defendant, were the aggressors in the fray in which S. was killed by defendant's son, that they pursued S. for some distance shooting at him, that during the pursuit he was stabbed by one or more of the B.'s, and that they were all present when he was killed, the fray not ending till then, held sufficient to go to the jury on the question whether he aided or abetted in the commission of the act which caused the death.

3. CRIMINAL LAW. Instruction submitting issue of killing by defendant without evidence thereof held error.

It was error to submit the issue of defendant having killed deceased, when there was no evidence of his having struck the blow that caused the death.

4 HOMICIDE. Instruction that if defendant "caused" another to kill deceased he was guilty of manslaughter held error, where he merely said, "Don't let him [deceased] kill me."

Where when deceased had defendant down, beating him, defendant exclaimed, "For God's sake, don't let him kill me!" where-upon defendant's son in response killed deceased, an instruction that defendant was guilty of manslaughter if he "caused" another to kill deceased was erroneous; causing a crime to be committed not being aiding and abetting in its commission.

HON. J. D. FATHEREE, Judge.

APPEAL from circuit court of Lauderdale county. HON. J. D. FATHEREE, Judge.

Clyde Brown was convicted of manslaughter, and he appeals. Reversed and remanded.

Reversed and remanded.

Reily & Parker, for appellant.

The testimony is wholly insufficient to sustain the verdict of the jury in this case, and the trial court erred in not granting a peremptory instruction for the defendant. In order for the defendant to be guilty of manslaughter in this case, it was necessary for the state to show beyond a reasonable doubt that the defendant actually killed the deceased in violation of law; or that the deceased was killed unlawfully by one of the party of which the defendant was a member, and that the killing was the result of a conspiracy by this party; or that another unlawfully killed the deceased and the defendant aided and abetted in this killing. That Smith was killed by some or all of the party of which Clyde Brown was a member, is not sufficient to prove that he was actually killed by Clyde Brown; and the fact that Clyde Brown had been or was in an actual fight with the deceased, does not prove that Clyde Brown did the killing. 30 C. J. 301; 29 C. J. 1078; Walker v. State (Ga.), 67 L. R. A. 426; 29 C. J. 1072; Campbell v. People, 61 Am. Dec. 49; McGehee et al. v. State, 104 So. 150; Patty v. State, 88 So. 498; Houston v. State, 78 So. 182; Rich v. State, 86 So. 770; Harper v. State, 35 So. 572; McGehee v. State, 104 So. 150; Bibby v. State, 65 S.W. 193; Books v. State, 12 L. R. A. (N. S.) 889; Sullivan v. State, 37 So. 1006; People v. Lewis, 45 L. R. A. 783.

We think the instruction given by the court is error in submitting to the jury the right to convict the appellant on the theory that the appellant had killed the deceased; there being no evidence on which to base this instruction. To authorize the jury to return a verdict based on a theory on which there is no testimony is error. Lee v. State, 103 So. 233; Harper v. State, 35 So. 572; Sullivan v. State, 37 So. 1006; Rich v. State, 86 So. 770.

We think the latter part of this instruction is fatally erroneous, wherein it authorizes a conviction of the appellant on that state of facts showing another person to have killed the deceased, if the appellant "caused another to so kill the deceased." The legal requirement of aiding or abetting consists in the participating in crime to a greater extent than just being an innocent agency or part of the operation. There is a vast difference in aiding or abetting a crime and causing a crime. A person has caused a crime when he or his actions are the producing element in its inception, and this may be much less than aiding or abetting. Hicks v. U.S. 37 L. Ed., 1137; Brabson v. State, 8 So. 326; Smith v. State, 91 So. 41; Woolweaver v. State, 40 Am. S. R. 667.

J. A. Lauderdale, Assistant Attorney-General, for appellee.

As to sufficiency of the testimony see McCoy v. The State, 91 Miss. 257. The law is well settled in this state, in fact, it is fixed by statute that anyone who aids, abets, encourages, or incites the commission of a crime is guilty as principal. Sec. 787, Hem. Code 1927; Biley v. State, 143 Miss. 210; Fleming v. State, 142 Miss. 872; Wynn v. State, 63 Miss. 260.

Counsel for appellant contend that the instruction complained of is erroneous because there is no testimony to support an instruction defining manslaughter. I think that the proof in this record is ample to sustain this instruction. However, if I am mistaken in this, under the holding of the court in Blalock v. State, 113 So. 627, and cases there cited, the granting of this instruction was not erroneous.

The most serious contention about this instruction is found in the second clause in that it used the language: "That he caused another to so kill the deceased at the time when he was present." This instruction would have been more apt had it used the words: "That he aided, abetted, or encouraged another so to kill the deceased at a time when he was present." However, I think the word "cause" is a stronger word than aid, abet, or encourage. Webster's New International Dictionary; State v. King, 58 S.E. 937. The instruction required that the jury believe that the defendant caused another to so kill deceased, that is, that the killing be manslaughter.

Argued orally by Marion W. Reily, for appellant, and J. A. Lauderdale, Assistant Attorney-General, for appellee.

ANDERSON, J. ETHRIDGE, P. J., disqualified, took no part.

OPINION

ANDERSON, J.

Appellant, Clyde Brown, was indicted in the circuit court of Lauderdale county, jointly with Vernon Brown, Reon Brown, and Rufus Brown, of the murder of Joe Smith. There was a severance, and the trial of appellant resulted in a conviction of manslaughter. From that judgment appellant prosecutes this appeal.

On the 6th day of December, 1926, Joe Smith was found dead on a neighborhood road near where he lived with his family. He had been stabbed with a knife, shot with a gun, and his skull crushed with a blunt instrument. The evidence showed that the immediate cause of his death was the latter wound.

Smith's home was on a neighborhood road about one-half mile from the main macadamized highway leading north from Meridian. His body was found about eight o'clock at night on the 6th of December, 1926, near the intersection of the neighborhood road and the macadamized highway. He was killed in the nighttime.

The widow of the deceased testified that about seven o'clock on the morning of the day of the homicide appellant, his son, Vernon Brown, and the other two Browns with whom appellant was jointly indicted, came to her home and inquired for her husband, and she told them he was not at home; that again, about four o'clock in the afternoon of the same day, they returned and inquired for her husband, and she told them he was not at home; that they stated that they would be back shortly afterwards to see him; that they did come back, about six o'clock in the afternoon of the same day and inquired if her husband had returned home, and she informed them that he had not; that they requested her sixteen-year-old son, Minton Smith, to go with them, stating that they were going to start a graveyard with Ben Larkin, a negro, who lived near, but that her son refused to accompany them; that they thereupon left, going in the direction of the home of the negro, Larkin, which was about a quarter of a mile away from her home; that the Browns stopped their car on the road leading from the Smith home to the main highway. She testified that in about twenty minutes after they left her home she heard five shots: Two in close succession, then a short interval; another shot, another interval; and then other shots.

Mrs. Smith testified that on the day of the homicide her husband left home about seven-thirty in the morning for Meridian, and that she expected him to return about five o'clock that afternoon; that about twelve o'clock that night she learned that her husband had been killed.

There were no eyewitnesses to the homicide, except the four Browns.

J. V Forman testified that he saw the beginning of the fray which led up to the killing of Smith; that he was in Meridian on the day Smith was killed; that he left Meridian with Smith, on Smith's truck, for his home north of Meridian; that about two hundred fifty yards from the main highway, on the neighborhood road leading to Smith's home, he and Smith were stopped by the Browns; that appellant, Clyde Brown, said "I am going to kill a negro tonight;" that Smith got off of his truck, and that he and three of the Browns went up the road toward the home of the negro, Larkin; that one of the Browns remained with the witness Forman at Smith's truck, detaining Forman there while Smith and the other Browns went to the home of the negro, Larkin; that in fifteen or twenty minutes after the three Browns left for the home of the negro,...