Butler v. State

Citation177 Miss. 91,170 So. 148
Decision Date12 October 1936
Docket Number32257
CourtUnited States State Supreme Court of Mississippi
PartiesBUTLER v. STATE

Division B

1. CRIMINAL LAW.

Where conviction of manslaughter under indictment for murder is reversed on application of accused. cause stands for trial de novo on original indictment, and accused may again be tried for murder (Const. 1890, sec, 22).

2 HOMICIDE.

Where evidence made both issues of murder and manslaughter, court properly submitted both issues to jury.

3 HOMICIDE. Instruction setting out the evidence state relied on for conviction and telling jury that, if they believed it beyond a reasonable doubt, they should find defendant guilty of murder, held reversible error for omitting the phrase "malice afore-thought" or its equivalent and for failure to inform jury that, if killing took place in heat of passion and without malice afore-thought, verdict should be for manslaughter and not murder. "Malice aforethought" is the distinguishing feature between murder and manslaughter. There can be no murder without malice aforethought, and a homicide without it and in the heat of passion is not "murder" but may be "manslaughter."

4. CRIMINAL LAW.

Error in instruction in murder prosecution which failed to require malice aforethought for conviction for murder held not cured by other instructions properly defining both murder and manslaughter, since erroneous instruction was in irreconcilable conflict with other instructions.

5. CRIMINAL LAW.

In murder prosecution, instruction that jury were sole judges of weight of evidence and credibility of witnesses, and that, if they believed any witness had intentionally and corruptly sworn falsely to material issue, they could disregard such witness' entire testimony, held erroueous for failure to inform jury that their belief had to be based upon the evidence.

6. CRIMINAL LAW.

In murder prosecution, instruction that jury were sole judges of weight of evidence and credibility of witnesses held not erroneous because of use of word "intentionally" instead of word "knowingly" in informing jury that they could disregard testimony of witnesses jury believed intentionally swore falsely

7 HOMICIDE.

In murder prosecution, error, if any, in instructions which in defining the crime left out requirement that act was committed "without authority of law," held harmless, where no claim was made that homicide was committed by authority of law.

HON THOS. H. JOHNSTON, Judge.

APPEAL from circuit court of Alcorn county, HON. THOS. H. JOHNSTON, Judge.

Clifford Butler was convicted of murder, and he appeals. Reversed and remanded.

Reversed and remanded.

Orma R. Smith, of Corinth, for appellant.

Where a defendant is indicted for murder and on a trial thereof is found guilty of manslaughter, prosecutes an appeal to the Supreme Court and secures a new trial of said cause; on the second hearing thereof the prosecution must be limited to the crime of manslaughter, as the verdict of the jury in the first instance, in finding him guilty of manslaughter, was an acquittal of the crime of murder and the said verdict of the jury constitutes former jeopardy as to the crime of murder.

Morris v. State, 8 S. & M. 762; Walker v. State, 123 Miss. 517, 86 So. 337; Hurt v. State, 25 Miss. 378; Rolls v. State, 52 Miss. 391; Powers v. State, 83 Miss. 691, 36 So. 6; 13 R. C. L. 886, secs. 189, 190; 8 R. C. L. 160; 16 C. J. 260, 261; Brantley v. State of Ga., 16 Am. & Eng. Ann. Cas. 1206, 22 L.R.A. (N.S.) 959; Trono v. U.S. 4 Am. & Eng'. Ann. Cas. 778; State of S. Carolina v. Gillis, 5 L.R.A. (N.S.) 571; Jones v. State, 59 L.R.A. 1160; People v. Newman, 195 N.E. 645; People v. Liddell, 187 N.E. 174; State v. Lewis, 160 So. 485; State v. Harvell, 130 So. 348; State v. Elmore, 155 So. 896; Russell v. State, 165 So. 255; Presnal v. State, 129 So. 480; Culifer v. State, 79 So. 143; Roberson v. State, 62 So. 837; 7 So. Digest, page 185, cases under sec. 193 1/2, "Criminal Law."

The appellant, in urging this proposition upon this court, recognizes the fact that this court has ruled adversely to his contention in the case of Jones v. State, 59 A.L.R. 1146, 109 So. 265, 144 Miss. 52, 71 L.Ed. 817, which was decided by this court on June 21, 1926, and that this rule has been followed in Bell v. State, 115 So. 896, 149 Miss. 745.

However, the appellant is convinced that the decision in the Jones case as to this matter should be overruled. Since its earliest day until the ruling in the Jones case, supra, our Supreme Court has followed this proposition of law as stated by the appellant. The appellant contends that the Constitution of 1890, section 22, did not justify the overruling of this line of decision and the establishment of the rule of law as set forth in the Jones case. With all due respect to this court in the matter, the appellant respectfully submits that the ruling in the Jones case is not justified by the previous rulings of this court, and that the same should be overruled.

The appellant contends that the first, second, third, and fourth instructions granted the state are erroneous for the reason that they fail to inform the jury that a reasonable doubt can arise from the lack of evidence as well as from the evidence.

An instruction which fails to inform the jury that a reasonable doubt can arise out of the want or lack of evidence as well as from the evidence is erroneous.

Howell v. State, 53 So. 954, 96 Miss. 439; Hale v. State, 16 So. 389, 72 Miss. 140; Knight v. State, 20 So. 860, 14 Miss. 140; Kelley v. State, 72 So. 928, 112 Miss. 245.

The appellant also complains of the third instruction for the state for the reason that it does not require the jury to believe that the cutting and killing was done "without authority of law" before they can convict him of a crime of murder.

An instruction which instructs the jury that they can convict a defendant of murder without requiring them to first believe that the cutting and killing was done "without authority of law" is erroneous.

Motley v. State, 165 So. 296; Earl v. State, 151 So. 172; Rutherford v. State, 57 So. 225, 100 Miss. 832; Ivey v. State, 36 So. 265.

The appellant contends and avers that instruction No. 5 is erroneous in three particulars, to-wit: First, the last part of the instruction authorizes and instructs the jury to find the defendant guilty as charged, that is, guilty of the crime of murder, if the jury believes beyond a reasonable doubt that the appellant cut and killed the deceased, not necessarily in self-defense, and at a time when he was not in any danger of any great bodily harm, real or apparent, at the hands of the deceased, and omits, as a part of the crime, the necessary ingredient of malice aforethought; and second, the first part of the instruction cuts off the defendant's entire right of self-defense, and is too abstract; and third, it does not inform the jury that the killing must have been done without authority of law.

An instruction which authorizes the conviction of a defendant, in a case of a homicide, of the crime of murder without first requiring that the jury believe beyond a reasonable doubt that the defender killed the deceased with malice aforethought is fatally erroneous.

McDonald v. State, 29 So. 171, 78 Miss. 369; Gamblin v. State, 29 So. 764; Brett v. State, 47 So. 781, 94 Miss. 669; Burnett v. State, 46 So. 248, 92 Miss. 826; Caffey v. State, 24 So. 315; Herring v. State, 99 So. 270, 134 Miss. 505; Kearney v. State, 68 Miss. 233, 8 So. 292; Hunter v. State, 21 So. 305, 74 Miss. 515; Beasley v. State, 8 So. 234, 64 Miss. 518; 13 R. C. L. 931, 932; Jeff v. State, 37 Miss. 321; Earl v. State, 151 So. 172, 168 Miss. 124; Lott v. State, 93 So. 481, 130 Miss. 119; Smith v. State, 91 So. 41.

That malice aforethought is one of the essential ingredients of the crime of murder, is not open to question.

The rule on conflicting instructions is: the instructions taken as a whole must be consistent and harmonious, and where instructions contain inconsistent propositions and are conflicting, the case should be reversed for the reason that the court is unable to tell which the jury follows and which they ignore. Where two instructions are given on the same point, and one requires one thing and another the other, before a conviction can be had, they are conflicting, irreconcilable, and misleading, and this error is not cured by other instructions correctly announcing the law.

Russell v. Williams, 168 Miss. 181, 150 Miss. 528; Lauderback v. Stien, 113 Miss. 475, 74 So. 327; Y. & M. V. R. R. Co. v. Hawkins, 132 So. 742, 159 Miss. 775; Ellis v. Ellis, 134 So. 150, 160 Miss. 345; L. & N. R. R. Co. v. Cuevas, 139 So. 397, 162 Miss. 521; Enghlin v. Pittsburgh County R. R. Co., 94 A.L.R. 1180; 14 R. C. L. 775, 776, 777, 813; 17 C. J. 343, 347; Marx v. Berry, 168 So. 61; Burke v. State, 72 Miss. 408, 16 So. 342; Pollard v. State, 53 Miss. 410; Southern Ry. Co. v. Kendrick, 40 Miss. 375; Kenton v. State, 31 Miss. 504; I. C. R. R. Co. v. Minor, 69 Miss. 710, 11 So. 101; Harper v. State, 35 So. 572, 83 Miss. 402; Murphy v. State, 42 So. 877, 89 Miss. 827; Hawthorne v. State, 58 Miss. 778; Josephine v. State, 39 Miss. 647.

The appellant complains of the sixth instruction given to the state, which instruction is as follows: "The court charges the jury for the state that they are the sole judges of the weight of the evidence and the credibility of the witnesses, and that if they believe any witness has intentionally and corruptly sworn falsely to any material fact in the case, then they may disregard the entire testimony of such witness."

The appellant contends that this instruction is erroneous for these reasons: First, that this instruction does not require the jury to believe that any...

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