Calvin v. State

• Citation: 168 So. 75,175 Miss. 699
• Decision Date: 18 May 1936
• Docket Number: 32088
• Court: United States State Supreme Court of Mississippi
• Parties: CALVIN v. STATE

168 So. 75

175 Miss. 699

CALVIN v. STATE

No. 32088

Supreme Court of Mississippi

May 18, 1936

Division B

1 HOMICIDE.

Whether acts of defendant, in killing deceased with knife after they had been engaged in tussle, constituted manslaughter rather than murder, held for jury.

2 HOMICIDE.

To reduce crime to manslaughter, there must not only be passion and anger, but such circumstances as would indicate that normal mind would be roused to extent that reason would be overthrown and judgment destroyed by passion.

3 HOMICIDE.

Evidence sustained conviction of murder for killing deceased with knife after parties had been engaging in tussle with each other.

HON. WM. A. ALCORN, Judge.

APPEAL from circuit court of Coahoma county HON. WM. A. ALCORN, Judge.

Sam Calvin was convicted of murder, and he appeals. Affirmed.

Affirmed.

W. W. Venable, of Carksdale, for appellant.

Counsel for appellant was appointed by the court and was of the opinion at the time of the trial, and is of the opinion now, that defendant was guilty of manslaughter and not murder, which view is reflected in the instructions requested.

Defendant states that he thought deceased was going to whip him again and knew that he could do so. He turned and struck, and he says that he did not intend to kill him but intended to make him let him alone. He did not know that he had killed him, and in this is corroborated by the plantation manager.

As I see it, the question is, does the fact of the assault and battery reduce the homicide from murder to manslaughter?

Preliminarily it is to be noticed that all of the facts of the case are substantially developed in the proof and so there is no room for any play of a. presumption of malice.

Lamar v. State, 63 Miss. 265; Cotton v. State, 31 Miss. 504.

If a killing is on a sudden quarrel, and this is found to be the case and is caused by the anger of that quarrel, the offense cannot be murder.

Even though one may have a felonious design to kill, if he killed in the heat of passion, it is manslaughter.

Dye v. State, 127 Miss. 492; Dalton v, State, 141 Miss. 841.

The killing of assailant suddenly and solely under anger aroused by a blow is manslaughter.

Buffalow v. State, 219 Ala. 407, 122 So. 633; State v. Sizemore, 52 N.C. 206; MeBryde v. State, 156 Ala. 44, 47 So. 302.

Any assault made with violence or circumstances of indignity upon a man's person, as by pulling him by the nose, if it be resented immediately by the aggressor, and it appears that the person acted in the heat of blood upon that provocation, Will reduce the killing to manslaughter.

State v. Edwards, 70 Mo. 480; State v. Michael, 74 W.Va. 613, 82 S.E. 611; State v. Merrick, 88 S.E. 501, 171 N.C. 788; State v. Watson, 82 A. 1086; State v. Ken, nedy, 84 S.E. 515, L. R. A. 1915, 656; State v. Hand, 86 S.E. 1005, 170 N.C. 703; 29 C. J., Homicide, sec. 120.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

To sustain appellant's contention here, there must, of necessity, be no conflict in the testimony showing a homicide which would be classified as manslaughter. If there was evidence tending to show that the killing was with malice or not necessarily in the heat of passion, it would not be proper for the court to limit the jury to manslaughter or not guilty. And where the quality of an act is at issue the jury necessarily has a wide range of investigation.

Williams v. State, 127 Miss. 851, 90 So. 705.

When the court was called upon to pass on this instruction peremptorily charging the jury that it could not convict of murder it was brought face to face with the rule that evidence which tends to establish guilt of crime must be considered most favorable to the state and if there is any substantial, reasonable testimony, which, conceding it is true, sustains the position of the state, the requested peremptory instruction should be refused.

Justice v. State, 170 Miss. 96, 154 So. 265; Redwine v. State, 149 Miss. 741, 115 So. 889; Pruitt v. State, 163 Miss. 235, 140 So. 683; Boutwell v. State, 165 Miss. 16, 143 So. 479.

OPINION

Ethridge, P. J.

The appellant, Sam Calvin, was indicted in the circuit court of Coahoma county, at its September, 1935, term, for the murder of one Norman Griffin, was convicted and sentenced to serve a life term in the state penitentiary, from which this appeal is prosecuted.

The testimony of the witnesses varies somewhat as to the exact words and acts that took place, but it is substantially in accord as to the main facts of the case, and shows that Sam Calvin and Norman Griffin engaged in a "tussle" or friendly struggle, more in play than anything else; that Norman Griffin threw Sam Calvin to the ground on his face, and he got dirt in his face and mouth that Calvin jumped up, using profane language, and said he was going home and get his gun and kill all of them, Norman Griffin's brother-in-law, br...