Calicoat v. State

Decision Date19 February 1923
Docket Number22824,22290
CourtMississippi Supreme Court

1. CRIMINAL LAW. To reverse, an error must have been committed in the trial favorable to appellee and prejudicial to appellant.

Before this court will reverse a cause it must be satisfied of two facts, namely, that an error in favor of the appellee was committed in the trial of the cause, and, second, that this error was prejudicial to the rights of the appellant.

2 HOMICIDE. Unwarranted conviction of manslaughter held harmless error under indictment for murder supported by evidence.

Where a person is slain by the defendant, and the slaying is admitted, but the defense is self-defense, then, on an indictment for murder, and a conviction of manslaughter where the testimony would sustain a verdict of guilty of murder, and where there are no elements of manslaughter involved, it is harmless error, of which the defendant cannot complain, that a jury convicted him of manslaughter. COOK J., dissenting in Calicoat case. ETHRIDGE, J., concurring in result in Calicoat case, but dissenting as to Strickland case. ANDERSON, J., joining in dissent as to Strickland case. [Copyrighted Material Omitted]

APPEAL from circuit court of Lafayette county, HON. W. A. ROANE Judge.

APPEAL from circuit court of Pearl River county, HON. G. WOOD MAGEE, Special Judge.

Callaway Calicoat and Loucinda Strickland were separately indicted for murder and convicted of manslaughter, and each appeals. Affirmed.

The following is an abstract of the brief referred to in the dissenting opinion of ETHRIDGE, J.


In the event that the court below erred in charging the jury on the law of manslaughter, was the error in granting the instruction favorable or prejudicial to the defendant? In other words, was it harmless?

On the foregoing proposition there are, in Mississippi, two distinct lines of authorities announcing opposite doctrines. The cases holding the granting of a manslaughter instruction in a case where the facts warranted a conviction of murder, and no element of manslaughter is shown by the evidence, to be prejudicial error are: Virgil v. State, 63 Miss. 317; Parker v. State, 102 Miss. 113, 58 So. 978; Rester v. State, 110 Miss. 689, 70 So. 881. The cases holding the contrary rule that such an instruction is harmless error because favorable to the accused are: Rolls v. State, 52 Miss. 391; Lanier v. State, 57 Miss. 102; Powers v. State, 83 Miss. 691, 36 So. 6; Moore v. State, 86 Miss. 160, 38 So. 504; Huston v. State, 105 Miss. 413, 62 So. 421.

The first expression of our court on the subject was in the Rolls case, supra, 52 Miss. 391, where it was contended that a conviction of manslaughter should be reversed because appellant was guilty of murder or nothing. The court's response to this contention was: "But, if really guilty of murder, it is not quite clear that the plaintiff in error has been prejudiced by the failure of the jury to find him guilty of that crime." In the case of Lanier v. State the court said that, while the jury would have been warranted in finding the accused guilty of the crime charged, that they failed to convict him of the higher offense was no reason why the court should discharge him of the lesser offense of which he had been convicted. The next case where the question arose was that of Virgil v. State, which held that it was reversible error for the court to grant an instruction in that case, but that such an instruction is ordinarily free from objection in trials of murder, because it is favorable to defendant, who may not complain if a more favorable view is taken of his case than the acts justify. The court in this case cited no authorities in support of its holding, and did not attempt to overrule the doctrine previously announced in the Rolls case or in the Lanier case. Then followed the cases of Powers v. State and Moore v. State, holding that a conviction of the lessor of the two crimes would not be set aside because of an instruction incorrect in that it directed a verdict of manslaughter upon the facts which would have warranted a conviction of murder. Then came the case of Parker v. State, 102 Miss. 113, 58 So. 978, where the court, under facts showing that defendant was either guilty of murder or innocent, held that such an instruction was reversible error, the case citing no authorities in support of its holding and making no mention of prior rulings on the question which were in direct conflict with the doctrine there announced. Then followed the case of Huston v. State, 105 Miss. 413, 62 So. 421, where the court, which was at that time composed of the same personnel as when the case of Parker v. State was decided, in reviewing their decision in the Parker case, expressly overruled it, and likewise all other cases holding to the same effect, and announced the correct rule to be that of the Moore case. The Rester case, 110 Miss. 689, 70 So. 881, is the latest expression of our court on the proposition, and falls within the line of cases illustrated by the Virgil case and which expressly overrules the cases subscribing to the doctrine announced by the Huston case erroneously stating that the ruling in the Huston case was a new and radical departure from the previous holdings of the court, the same doctrine having been previously announced in the Rolls case, the Lanier case, the Powers case, the Moore case, and the Virgil case; Parker v. State, 102 Miss. 113, 58 So. 978, being the only case holding to the contrary.

It might be that in some cases such an instruction would be harmful to defendant, but the evil effect of an ironclad rule, making it so in all cases, is apparent. In the case at bar, where the instruction simply told the jury that it might, among other verdicts, bring in one of manslaughter, the self-defense theory being clearly expounded in instructions favorable to appellant, the jury wholly rejected the self-defense theory, and decided that defendant was guilty of an unlawful and felonious homicide. After the jury had gone this far with their deliberations, then it devolved upon them to say whether the "unlawful homicide" was murder or manslaughter. The court said that they might call it manslaughter, and so, tempering justice with mercy, they labeled the unlawful homicide "manslaughter" when the facts showed murder. The error, if any, in granting the manslaughter instruction saved appellant from a conviction of murder, and was therefore favorable to her, and of this she cannot complain.

The general rule laid down in the Huston case, supra, finds support in 17 C. J., p. 359, par 3729, and page 361, par. 3732, and also in 16 C. J., p. 1024, par. 2452.

The following are among authorities from other states which hold that, when accused is convicted of a lesser crime than the evidence warrants, the verdict will be sustained against the objection that it is a compromise: State v. Hagan, 131 N.C. 802, 42 S.E. 901; State v. Quick, 150 N.C. 820, 64 S.E. 168; State v. Fowler, 151 N.C. 731, 66 S.E. 567; Warren v. State, 6 Okl.Cr. 1, 115 P. 812; 34 L. R. A. (N. S. 1121; Johns v. State, 8 Okl.Cr. 585, 129 P. 451; Ryan v. Slate, 8 Okl.Cr. 623, 129 P. 685; Justice v. State, 6 Ga.App. 330, 64 S.E. 1004; State v. Phinney, 13 Idaho 307, 89 P. 634, 12 L. R. A. (N. S.) 935, 12 Ann. Cas. 1079; Powell v. State, 5 Tex.App. 234; Campbell v. State, 65 Tex. Cr. R. 418, 144 S.W. 966; Gatlin v. State, 86 Tex. Cr. R. 339, 217 S.W. 698; Price v. State, 82 Ark. 25, 100 S.W. 74; Sexton v. State, 91 Ark. 589, 121 S.W. 1075; Snow v. State, 140 Ark. 7, 215 S.W. 3; State v. Burns, 263 Mo. 594, 173 S.W. 1070; State v. Mittner, 247 Mo. 577, 153 S.W. 1020; State v. Berkley, 109 Mo. 665, 19 S.W. 192; State v. Haugh, 156 Iowa 639, 137 N.W. 917; State v. Dimmitt, 184 Iowa 870, 169 N.W. 137; Bias v. State, 3 Ind. T. 27, 53 S.W. 471; State v. Underwood, 35 Wash. 568, 77 P. 863.

Under supreme court rule 11 (72 So. vii) it must affirmatively appear from the record that appellant has been prejudiced before a misdirection of the jury will cause a reversal.

IV and V.

In the event the judgment of the court below should be reversed, should the case be remanded for a new trial, or should the appellant be discharged? In the event the cause is remanded, can the appellant be again tried for the crime of murder?

A discussion of this proposition necessarily brings into review the "former jeopardy" clause of our state Constitution, same being section 22 thereof, and also the rule laid down by our court in the Walker case, 123 Miss. 517, 86 So. 337, and prior decisions of our court holding to the same effect. The rule now in force, as announced in Rester v. State, 110 Miss. 689, 70 So. 881, is that it constitutes reversible error to grant an instruction on manslaughter, where the proof shows murder or not guilty. There is also a line of authorities illustrated by the case of Hurt v. State, 25 Miss. 378, 59 Am. Dec. 225, which hold that, on a prosecution for murder, a finding by the jury that the accused is guilty of manslaughter, is an "implied" acquittal of the charge of murder. Other cases holding to the same effect are: Morris v. State, 8 Smedes & M. 762; Rolls v. State, 52 Miss. 391; Powers v. State, 83 Miss. 691, 36 So. 6; Walker v. State, 123 Miss. 517, 86 So. 337.

The Constitution of 1890 materially modified the "former jeopardy" clause in previous Constitutions, so that section 22 of the present Constitution is now in the following words:

"Section 22. No person's life or liberty shall be twice placed in jeopardy for the same offense; but there must be an actual acquittal or conviction on the merits to bar another prosecution."

Among the cases holding that, where accused is charged...

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