Carrol v. State

• Citation: 183 So. 703,183 Miss. 1
• Decision Date: 17 October 1938
• Docket Number: 33284
• Court: Mississippi Supreme Court
• Parties: CARROL v. STATE

183 So. 703

183 Miss. 1

CARROL v. STATE

No. 33284

Supreme Court of Mississippi

October 17, 1938

(In Banc.)

1. CRIMINAL LAW.

Admission of testimony of witness who might have been defendant's common-law wife was not reversible error, where most of what she said appeared in other evidence, including defendant's confession.

2 HOMICIDE.

In murder prosecution against defendant who participated in robbery of decedent killed in carrying out common purpose to rob, instruction setting forth circumstances under which defendant might be found guilty was not erroneous because of failure to Include element of deliberate design (Code 1930 section 985 (a, c)).

3 HOMICIDE.

The statute setting forth requirements of indictment for homicide covers all homicides, both statutory and common law, and under indictment drawn in accordance therewith any facts evidencing murder or manslaughter may be introduced (Code 1930, section 1211).

4 HOMICIDE.

The fact that defendant did not himself strike fatal blow did not relieve him of responsibility for death of decedent who had been struck by one of defendant's confederates in carrying out common purpose to rob (Code 1930, section 985(c)).

HON. R. B. ANDERSON, Judge.

APPEAL from circuit court of Warren county HON. R. B. ANDERSON, Judge.

Louis Carrol was convicted of murder, and he appeals. Judgment affirmed.

Affirmed.

Jack P. Canizaro, of Vicksburg, for appellant.

The lower court over the objections of the appellant permitted Lula Smith, the common law wife of the appellant, to testify in the cause against the appellant, and her testimony was highly prejudicial to the rights of the appellant and clearly reversible error. The evidence introduced in the cause on the hearing of the objection to the testimony of Lula Smith unquestionably and manifestly shows that Lula Smith was and is the common law wife of the appellant, and incompetent as a witness against him.

Sims v. Sims, 122 Miss. 745, 85 So. 73; Sec. 3249, Code of 1906, Hemingway's Code, Sec. 2556; Floyd v. Calvert, 53 Miss. 37; Sykes v. Sykes, 163 Miss. 487, 139 So. 853; Jones v. Lamensdorf, 175 Miss. 565, 167 So. 624; Barton v. State, 143 So. 861, 165 Miss. 355.

The appellant was indicted for murder, which indictment reads, omitting the formal parts, "did, then and there, wilfully, unlawfully, feloniously and of their malice aforethought kill and murder one, Lemon Pelekas, a human being. . . ." As it can be readily seen the indictment was drawn under paragraph (a) of Section 985, of the Code of 1930, which defines murder. It specifically charges that the appellant, Louis Carroll, wilfully, unlawfully, feloniously and of malice aforethought killed and murdered Lemon Pelekas. Therefore, since the indictment is drawn under said paragraph, it is absolutely necessary that a deliberate design to effect death is shown by the evidence, and since such is the case any instruction given the State eliminating the deliberate design to effect the death of Lemon Pelekas, and instructing the jury to return a verdict of guilty even if they believe from the evidence that such person was killed without such a deliberate design on the part of the appellant, was fatal error.

There was a material variance between the indictment and the proof, since the indictment charges wilful and malicious murder, and the proof shows that the murder was committed by one Theodore Blanchard while he along with the appellant and others were engaged in the commission of a felony, and of necessity, the indictment should have been drawn under paragraph "c" of said Section 985, to conform to the proof in the case.

Gentry v. State, 92 Miss. 141.

The instruction given the State excluded from the jury the essential requirement of conspiracy, that is, it was necessary that the conspiracy to commit robbery included an agreement to kill, if necessary.

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

When the state offered Lula Smith as a witness the defendant objected to her testifying "because she is his common law wife." The court held that she was a competent witness for the state because her testimony dearly showed that she was not, under the law, the common law wife of appellant.

We submit that the proof in this case of an alleged common law marriage between the parties does not rise to that degree required by law as laid down in the Barton case, and that the trial court committed no error in allowing this witness to testify.

Barton v. State, 165 Miss. 355, 143 So. 861.

The indictment in this case was not drawn with reference to the provisions of Section 985 (a) of the Code, but follows the wording of Section 1211 of the Code of 1930, which provides that it shall be sufficient to charge in an indictment for murder that the defendant did feloniously, wilfully and of his malice aforethought, kill and murder the deceased. This form, together with the one for manslaughter set out in the same section, covers all forms of homicide, whether statutory or common law.

Lee v. State, 124 Miss. 398, 86 So. 856.

The instruction complained of, in substance, told the jury that if it believed that Pelekas was killed in the course of a robbery perpetrated on him by the defendant and his joint actors, then it was immaterial whether they intended to kill him or not. This instruction sets out the provisions of Section 985 (c), Code of 1930, and it was certainly not erroneous in charging the jury that intent, under such circumstances, was an immaterial matter.

It is only when there is a turning aside from the common purpose by one of the participants and the commission of an offense by such one independent and outside of the original design that renders the others immune.

Lusk v. State, 64 Miss. 815, 2 So. 256.

That the killing of Pelekas as shown by the facts of this record was in the execution of the common design of the defendant and his companions clearly appears. There was no turning aside from the common design which prompted the assault upon Pelekas. As showing that all of the participants in this robbery are guilty of murder, whether they originally intended to kill or not.

Woodward v. State, 166 Miss. 596, 143 So. 859; Odom v. State, 172 Miss. 687, 161 So. 141; Fisher v. State, 150 Miss. 206, 116 So. 746; Huggins v. State, 115 So. 213.

OPINION

Smith, C. J.

This is an appeal from a death sentence under a conviction for murder. The appellant's complaints are: (1) that a woman whom the evidence discloses to be his common law wife was permitted, over his objection, to testify in behalf of the state, and (2) one of the instructions granted the state is erroneous.

Appellant did not testify and the evidence discloses without conflict therein, including a...