Busby v. State

• Decision Date: 19 October 1936
• Docket Number: 32004
• Citation: 170 So. 140,177 Miss. 68
• Court: Mississippi Supreme Court
• Parties: BUSBY v. STATE

170 So. 140

177 Miss. 68

BUSBY v. STATE

No. 32004

Supreme Court of Mississippi

October 19, 1936

(In Banc.)

1. CRIMINAL LAW.

Instruction that, if jury believe beyond reasonable doubt, that accused was feloniously assaulting deceased, and deceased's mother saw assault and had reasonable ground to believe deceased's life was In danger, mother could use reasonable force to prevent deceased's death, held erroneous as unduly emphasizing action of mother, who was state witness and who was not on trial,

2 HOMICIDE.

Instruction that malice such as to render one liable for acts committed with malice may be formed instantly and need not dwell in bosom for definite period held proper.

3 HOMICIDE.

Instruction that it is probable consequence of use of deadly weapon in assault and battery committed upon a person that death of such person may ensue, and hence, under law, proof of such use is prima facie evidence of intent to kill, held erroneous.

4 HOMICIDE.

An intent to kill may be inferred from the use of a deadly weapon and is not a presumption of law,

5. CRIMINAL LAW.

Where facts are in evidence, presumptions must yield thereto.

6 HOMICIDE.

Intent in the crime of murder is a necessary part of "malice."

7. HOMICIDE.

Instruction that killing of a human being without malice in heat of passion is manslaughter field erroneous for failure to include statutory requirement of use of deadly weapon without authority of law, and not in necessary self-defense (Code 1930, sec. 996).

8. HOMICIDE.

Erroneous instruction as to manslaughter held not prejudicial to accused who was convicted of murder (Code 1930, sec. 996).

9. CRIMINAL LAW.

Falsus in uno, falsus in omnibus instruction which did not require jury to determine facts therein set forth from evidence held erroneous.

10. HOMICIDE.

Whether accused was guilty of murder or manslaughter, and whether he acted in self-defense, held for jury.

SMITH, C. J., dissenting.

HON. W. J. PACK, Judge.

APPEAL from circuit court of Forrest county, HON. W. J. PACK, Judge.

On suggestion of error, former judgment set aside and cause reversed and remanded.

Reversed and remanded.

Harry Buchanan, A. F. Kelly and E. C. Fishel, all of Hattiesburg, for appellant.

As to instruction No. 1, the attorney-general contended that it announces a correct legal principle. For the sake of argument, assuming the instruction does announce a legal principle, yet it is the first case the writer has been able to find in legal history where the instruction was given justifying the conduct of a state's witness.

McGehee v. State, 138 Miss. 822, 104 So. 150.

As to instruction No. 2 this very identical instruction had been condemned in McDonald v. State, 29 So. 179, and the case reversed, the court holding that it pared away the rights of self-defense and holding that the design to kill might exist and the killing be merely manslaughter.

Hawthorne's case, 59 Miss. 778.

In the Beasley case, 64 Miss. 518, 8 So. 234, the word "malice" was not mentioned in the instruction, but the instruction was almost identical in effect with the instruction in appellant's case the instruction reciting that the "law presumed the person's intent to do not only what he does, but the material consequence of his acts . . . then the law presumes that he intended to kill Jones . . ." This was an instruction on the intent to kill being presumed by the use of a deadly weapon; that is exactly what the instruction No. 3 meant in appellant's case. In the Beasley case, notwithstanding the crime was only assault and battery with intent to kill and murder, the case was reversed. In appellant's case, which we respectfully submit should be given all serious and careful consideration, the penalty is death as prescribed by the opinion of the court. In further support of our position, may we earnestly request the court to read the case of Eaverson v. State, 19 So. 715, 73 Miss. 810.

Slaughter v. State, 16 So. 242.

E. C. Fishel, of Hattiesburg, for appellant.

It has been held, even in civil cases, to instruct on the prima facie statute when the evidence disclosed all the facts and circumstances surrounding the case, was error.

Jeff v. State, 39 Miss. 593.

The writer is so certain that the giving of instruction No. 3 herein is reversible error, that he is setting out that instruction and an almost identical instruction heretofore condemned by this court.

Instruction No. 3 reads as follows: "The court instructs the jury for the state that it is the probable consequence of the use of a deadly weapon in an assault and battery committed by one person on another, that the death of the party may ensue; and, hence, under the law, proof of such use is prima facie evidence of an intent to kill."

The condemned instruction reads as follows: "The court instructs the jury, for the state, that the law presumes a person intends to do, not only what he does, but the natural and probable consequences of his acts; and, in this case, if you believe, from the evidence, that defendant struck Jones with an ax, which you believe was a deadly weapon, at a time when Jones was not trying to do him some great injury, then the law presumes that he intended to kill Jones, and would be guilty of assault and battery with intent to kill and murder, and you should so find." Eaverson v. State, 19 So. 715, 73 Miss. 810.

This instruction No. 3 coupled with the several instructions on abstract principles of the law, and especially instruction No. 2, which instruction possibly was a correct principle of the law yet was not applicable in this case, gave the jury no other course to pursue except to find the defendant guilty.

Beasley v. State, 8 So. 234.

Malice is only one of the elements of murder and while it is presumed from the use of a deadly weapon, yet the giving of it where the evidence fully discloses the circumstances surrounding the homicide has been uniformly condemned by this court.

Batiste v. State, 147 So. 318, 165 Miss. 161.

With reference to instruction No. 4 the falsus in uno, falsus in omnibus instruction, the phrase, "from the evidence" was omitted and under the authority of Powers v. State, 168 Miss. 541, 151 So. 730, this was reversible error, unless cured by an instruction for appellant upon the same subject; matter.

I want to urge upon this court, to take this record as a whole and to take the facts in this case, there is not that deliberation and that design which make a case where a man should pay with his life. The combat, when entered by the mother of the deceased, became a mortal combat. The defendant, as admitted by all the witnesses, had been struck by the mother of the deceased with a gun barrel, his wounds from this lick being unhealed at the time of his trial, and after staggering to his feet, struck the fatal blow; and the right and duty of the jury to take into consideration these facts in behalf of the defendant were pared away by the instructions given the state, especially instruction No. 1, justifying the conduct of the mother, a state's witness. And instructions No. 2 and No. 3, and these coupled with the erroneous instruction No. 10, which erroneously defined manslaughter, had the effect of depriving this defendant of letting the jury even consider manslaughter. No motive was proven, and in view of the fact that the combatants had engaged in the fight and were still engaged in it at the time of the killing precludes malice, as passion and malice are inconsistent, and an act which proceeds from one. cannot also proceed from the other.

30 C. J. 347 (674).

The question of whether this provocation and this combat had spent its force was a question of fact for the jury, and the question of a cooling time is a question of fact.

Hailey v. State, 123 Miss. 87, 85 So. 129; 1 Wharton's Criminal Law (10 Ed.), par. 480; 30 C. J. 332.

Wm. H. Maynard, Assistant Attorney-General, for the state.

To support his position that instruction No. 3 is erroneous, appellant cites the cases of Beasley v. State, 64 Miss. 518, and Eaverson v. State, 73 Miss. 810. An analysis of these cases discloses that they are not authority for appellant's contention.

An examination of the Beasley case shows that no instruction was given for the state nor condemned by the court which bore any similarity to instruction 3 of our case. A brief comparison of the instruction condemned in the Eaverson case and instruction 3 given in our case, shows a marked dissimilarity. In fact the Eaverson instruction charges the jury to find Eaverson guilty of assault and battery with intent to kill, if the jury believed from the evidence that Eaverson struck the assaulted party with a deadly weapon at a time when said party was not trying to do Eaverson any great injury. This instruction entirely precluded the defense of manslaughter and was accordingly condemned.

Instruction No. 3 in our case merely instructed the jury that the proof of the use of a deadly weapon was prima facie evidence of an intent to kill, but did not instruct the jury to find defendant guilty if they believed he struck Woods with a deadly weapon. Instructions in a criminal case should be construed and considered together.

Williams v. State, 160 Miss. 485, 135 So. 210; Tillman v. State, 164 Miss. 100, 144 So. 234.

Instruction No. 3, when construed with instructions given appellant, fully presents appellant's defense.

Instructions similar to instruction 3 were approved in the cases of Jeff v. State, 39 Miss. 593, and Jeff v. State, 37 Miss. 321.

McGowen, J., delivered the opinion of the court on suggestion of error. Smith, C. J., dissents. Ethridge, J., Griffith, J., specially concurring.

OPINION

McGowen, J.

At the last term of this court this...