Canterberry v. State

• Decision Date: 06 May 1907
• Docket Number: 12623
• Citation: 43 So. 678,90 Miss. 279
• Court: Mississippi Supreme Court
• Parties: ABEL CANTERBURY ET AL. v. STATE OF MISSISSIPPI

43 So. 678

90 Miss. 279

ABEL CANTERBURY ET AL. v. STATE OF MISSISSIPPI

No. 12623

Supreme Court of Mississippi

May 6, 1907

FROM the circuit court of Smith county, HON. ROBERT L. BULLARD Judge.

The appellants, Bud and Abel Canterbury, brothers, were, together with their father, John Canterbury, jointly indicted for an assault and battery upon one Samuel Harrison with intent to kill and murder him. At the instance of the district attorney, who desired to secure the testimony of the father John Canterbury, the court below caused a verdict of not guilty as to John, the father, to be placed upon the minutes of the court. The two brothers, Bud and Abel, were tried jointly; the indictment charging that they did "wilfully, feloniously and of malice aforethought make an assault on one Sam Harrison, with deadly weapons, to-wit pocketknives, and him, the said Sam Harrison, they, the defendants, with said deadly weapons then and there wilfully feloniously and of malice aforethought did strike, cut and wound in the attempt and with the intent, him, the said Sam Harrison, with said deadly weapons, wilfully, feloniously and of malice aforethought to kill and murder, against the peace and dignity," etc.

The jury returned a verdict of guilty, as charged in the indictment, and the defendants were sentenced to the penitentiary, Bud for five years, and Abel for seven years.

The facts in regard to the killing, and the points upon which reversal was asked, are fully stated in the opinion of the court.

Judgment affirmed.

A. J. McLaurin, for appellants.

The first instruction granted for the state was erroneous. It was as follows:

"The court instructs the jury for the state that even though they should believe from the testimony that Sam Harrison was the aggressor, yet if they further believe from the evidence beyond a reasonable doubt that Harrison abandoned the difficulty and began a flight and if they further believe from the evidence beyond a reasonable doubt that Harrison was pursued by Abel Canterbury and Bud Canterbury and attacked by them with deadly weapons with intent to kill and murder said Harrison at a time when they, defendants, were in no immediate danger, real or apparent, of loss of life or great bodily harm, they should find the defendants guilty as charged in the indictment." It is erroneous in several particulars.

1. It does not define murder, and, therefore, did not inform the jury what was meant by an intent to murder. Kearney v. State, 68 Miss. 239, S. C., 8 So. 292; Hunter v. State, 74 Miss. 519, S.C., 21 So. 305; Jackson v. State, 79 Miss. 45, S.C., 30 So. 30; Wood v. State, 81 Miss. 165, S.C., 33 So. 285; Lofton v. State, 79 Miss. 723, S.C., 31 So. 420; Harper v. State, 83 Miss. 413, S.C., 35 So. 572. It seems a travesty to tell the jury to convict if the defendants intended to kill and murder, without informing the jury of any of the elements of murder--that it was necessary to be done of malice aforethought, or deliberation, or premeditation. As well instruct the jury to convict if the defendants are guilty.

2. The charge in the indictment is of a joint offense and there is no evidence of conspiracy or concerted action on the part of defendants; and an instruction should not be given without evidence to which it could apply. Ball v. State, 67 Miss. 362, S.C., 7 So. 353; Brabston v. State, 68 Miss. 208, S.C., 8 So. 326; Hogan v. State, 46 Miss. 274; Association v. McConnico, 53 Miss. 233; Kinnare v. Gregory, 55 Miss. 612; Wheaton v. Sexton, 17 U.S. (4 Wheaton), 508.

3. The instruction denies defendants the right to have the jury consider whether the act would have been murder or manslaughter, had Harrison been killed. Eaverson v. State, 73 Miss. 810, S.C., 19 So. 715; Wharton on Homicide, sec. 5.

4. The instruction told the jury that a conviction was required if the assault and battery with intent to kill and murder was made with any kind of deadly weapons; whereas, the indictment charged that it was made with pocketknives. Lanier v. State, 57 Miss. 102; Porter v. State, 57 Miss. 300; Dick v. State, 30 Miss. 630; Commonwealth v. McGowan, 1 Metcalf (Ky.), 368; Kinnard v. State, 35 Texas Crim. Rep., 276; State v. McDonald, 10 Mon., 21, 24 American St. Rep., 25; Lunsford v. State, 1 Tex. Ct. App., 448; Brisco v. State, 4 Tex. Ct. App., 219; Jordt v. State, 31 Tex. 571; Lynch v. State, 89 Ala. 18. These authorities demonstrate that the allegation must be supported by the evidence, even where the allegation is a matter of description that need not have been inserted. 1 Greenleaf (15th ed.), secs. 65, 68; Gray v. State, 11 Tex. Ct. App., 411; Com. v. King, 9 Cushing (Mass.), 284; Berrien v. State, 83 Ga. 381.

On the first one of these points I do not deem it necessary to comment further than to make reference to the authorities to which I have referred.

If the court undertakes to instruct the jury at all it ought to instruct it as to some principle of law that does not appear upon the face of the pleading. For instance, on an indictment for murder it would seem idle to instruct the jury to find the defendant guilty of murder if they believe from the evidence that he is guilty of murder, without defining murder. So if the jury is instructed to find the defendant guilty of assault and battery with intent to kill and murder, if the jury believe he intended to kill and murder gives no guide to the jury as to what constitutes murder. It does not tell them that murder has as its basic element malice aforethought, deliberation, or premeditation.

This is a joint offense, and the two defendants ought not to be convicted of two several offenses although they are exactly of the kind charged to have been committed by them jointly. The rights of defendants ought to be scrupulously protected. In this particular case the statute provides that they cannot have a severance unless they ask for it before either is arraigned and pleads. Two men may be arrested and brought into court and immediately arraigned and may plead not guilty before they have an opportunity to get a lawyer, not knowing the necessity of a lawyer from the beginning, and then they are denied the right to a severance. Parenthetically, allow me to illustrate by this very case, although the illustration does not appear in the record, but I am reliably informed that these defendants were arrested and arraigned and pleaded not guilty before they had an opportunity to employ counsel and then when their counsel asked for a severance were denied the severance because the application came too late. It is important, therefore, that defendants be protected to the extent that crimes by them severally shall not be permitted to be charged against them jointly and then they be denied a severance. Ball v. State, 67 Miss. 362, S.C., 7 So. 353; Elliot v. State, 26 Ala. 78, which in Ball v. State is said to be the correct doctrine. I contend that the offenses, if offenses at all, committed by Bud and Abel Canterbury were separate offenses,--not joint. There is not the least pretense in the evidence that there was any conspiracy or concerted action between these two defendants. They were not in sight of each other when the difficulty commenced. Preaching was over for the morning and Abel was at the table, where dinner was being served; Bud was on a different part of the ground, at the church house door. After the difficulty commenced and after Harrison had stabbed both Abel and old man Canterbury, and manifestly supposing old man Canterbury killed, had run, Bud Canterbury heard someone exclaim that his father was killed, and started to his father, and saw him bleeding, with an awful gash cut in his throat, and as one of the witnesses for the state described it, "with the whole side of his head cut off," and as another witness for the state described it, "his under jaw was cut through from the back of his ear and into his mouth," and Harrison, running, met Bud, cut at him with his knife and cut his collar, and from that he and Bud engaged in a running fight, into which Abel afterwards fell. Abel testified that he did not cut Harrison at all. But granting that Abel cut him, as well as Bud, each was cutting on his own responsibility and neither was responsible for the act of the other, and had he been killed by one, the other would not have been responsible for the homicide. For this I refer to the case of Brabston v. State, 68 Miss. 208, S.C., 8 So. 326. On p. 219 of that case as reported the court says: "We recognize that if two or more agree to kill another person or do him great bodily harm, and designedly and knowingly cooperate in an effort to accomplish that common purpose, and, in executing that purpose, one of them kill him, all are principals in the homicide, and equally liable in law for it; but we do not hold the doctrine that if two men fight in a crowd, with or without deadly weapons, and some outsider, without concert with or knowledge of either of the two combatants, fire at and kill one of them, as his prejudice or prepossession may prompt, the survivor is responsible in law for the homicide." So this doctrine of their joint responsibility is repudiated by the supreme court in the quotation which I have just made. Both Abel and Bud Canterbury testified that they did not see each other during the conflict. Therefore, if there were any offenses committed at all by these two defendants, or either of them, it was several, and not a joint offense. "In homicide,--if without concert, one inflicts an injury on a man one day, and another injures him on a different day, and he dies, the two cannot be indicted jointly; because, in law, under these facts they are not jointly guilty. 1 Bishop, New Criminal Procedure, sec. 470, par. 2; Regina v. Devett, 8 Car. & P., 639; Archb....