Carter v. State

• Decision Date: 19 October 1925
• Docket Number: 24729
• Citation: 140 Miss. 265,105 So. 514
• Court: Mississippi Supreme Court
• Parties: CARTER v. STATE. [*]

105 So. 514

140 Miss. 265

CARTER v. STATE. ^[*]

No. 24729

Supreme Court of Mississippi

October 19, 1925

Division B

1. CRIMINAL LAW. Instructions reciting, "if the jury believe beyond a reasonable doubt from the evidence in this case," reciting proper hypotheses, but omitting "or want of sufficient evidence," held not reversible error.

It is not reversible error for the state's instructions in a criminal case to recite, "If the jury believe beyond a reasonable doubt from the evidence in this case," reciting the proper hypotheses, but omitting from the instruction "or want of sufficient evidence," as under such instruction the jury must believe from the evidence beyond a reasonable doubt the guilt of the defendant, which means that there must be sufficient evidence to exclude every reasonable doubt of guilt. This is especially true where the instructions as a whole correctly announce the law applicable to the case.

2. CRIMINAL LAW. Refusal to give instructions argumentative in nature held not to reverse conviction.

The court need not give instructions which are argumentative in their nature, and the refusal to give such instruction will not reverse the judgment of conviction.

3 HOMICIDE. Refusal of instruction on right of landlord to enter premises of tenant not error, in absence of evidence that he had been forbidden to enter premises of tenant, or that coming into house was against tenant's will.

It is not error to refuse an instruction for the defendant, charged with murdering his landlord, that the landlord has no right to invade the premises of the tenant against the wishes and will of the tenant, and has no right under any circumstances to enter the dwelling house of the tenant with a deadly weapon for any purpose hostile to the tenant, where there is no evidence in the case that the landlord had been forbidden to enter the premises of the tenant, or that it was against the will of the tenant for him to come into his house.

4 HOMICIDE. Refusal to instruct that homicide is justified in resisting unlawful attempt to commit felony in or upon dwelling house where accused was held not error in view of evidence. It is not error to refuse to instruct the jury for a defendant charged with homicide that the homicide is justifiable when committed by any person in resisting an attempt unlawfully to commit any felony in or upon any dwelling house in which such person shall be, where the evidence merely disclosed a hostile intent against the deceased, if any hostile act is shown by the deceased, and where the law of self-defense was fully given for the defendant.

5. CRIMINAL LAW. Refusal of instruction that jury has duty to reconcile all evidence consistent with accused's innocence, and to acquit him if they reasonably can, held not reversible error; jury has duty to consider evidence as whole and draw proper inferences therefrom.

It is not reversible error to refuse an instruction to the jury for the defendant that it is their sworn duty under.the law to try to reconcile all of the evidence consistent with the innocence of the defendant and to acquit him if they reasonably can under all of the evidence introduced. It is the duty of the jury to consider the evidence as a whole and draw the proper inferences therefrom.

6 HOMICIDE. Refusal of instruction that one has right to defend house and family against unlawful acts and injury held not error, in absence of hostile act or intent toward member of family or residence as such, in view of other instructions.

It is not error to refuse an instruction for a defendant charged with homicide, that a man has a right to defend his house and family against unlawful acts and injury by another, where there is no evidence to show any hostile act or intent towards any member of the family or any hostile act toward the residence as such, and where the right of self-defense is fully given in instructions for the defendant as to hostile acts towards him.

7. CRIMINAL LAW. On objection to statements of prosecuting attorney, sufficient amount of language should be set out in bill of exceptions to show context in which language was used. Where statements of a prosecuting attorney are objected to, a sufficient amount of the language should be set out in the bill of exceptions to show the court the context in which the language was used, so that the real meaning of the language may be judged by the context.

HON. R L. CORBAN, Judge.

APPEAL from circuit court of Adams county, HON. R. L. CORBAN, Judge.

Ed Carter was convicted of manslaughter, and he appeals. Affirmed.

Judgment affirmed.

Engle & Laub, for appellant.

A great number of serious errors were committed on the trial of this case in the matter of the instructions. Every one of the six instructions given, states the proposition that: "If the jury believe beyond a reasonable doubt from the evidence in this case that . . ." whereas the proper wording of this instruction would be to follow the law as stated in Hale v. State, 72 Miss. 140, 16 So. 387, which declares that an instruction as to reasonable doubt which declares that it must arise out of the evidence is objectionable since it may arise from want of evidence and this rule of law applies in this case now here for hearing and since all of the state's instructions ignored the proposition that the reasonable doubt could arise from a lack of evidence as well as out of the evidence, serious harm was done the defendant in the granting of these six instructions for the state.

It is further submitted that the state's instructions are misleading as they require a conviction regardless of who was the aggressor, there having been evidence introduced tending to establish that deceased was killed while making an attack upon the defendant and that the defendant killed the deceased without malice, aforethought. People v. State, 33 So. 289.

Therefore, the instructions obtained by the state in this case were erroneous in failing to set out that the doubt might also arise from want of evidence upon the part of the state as to how the killing actually took place. Howell v. State, 53 So. 954.

The court committed further error in refusing instruction No. 4 that: "The court instructs the jury for the defendant that a landlord has no right to invade the premises of his tenant against the wishes and will of the tenant, and has no right under any circumstances to enter the dwelling house of the tenant, armed with a deadly weapon for any purpose hostile to the tenant."

This instruction states a proposition of law in a proper form as applicable to, this case. The law as set forth in this instruction would doubtless have influenced the jury in reaching a verdict.

The court further erred in refusing instruction No. 5, which is that: "The court instructs the jury that the killing of a human being, by act of another, is justifiable when committed by any person in resisting any attempt unlawfully to kill such person or to commit any felony upon him or upon or in any dwelling house in which such person shall be."

This instruction plainly states the law under the facts of this case and on what theory the court refused it we were never able to decide. It is a vital instruction. It was the most important instruction asked by the defendant and went to the very gist of the case and the refusal of this instruction alone we submit is sufficient grounds for the reversal of this case.

The court committed further error by refusing the first instruction which is: "The court instructs the jury for the defendant that it is their sworn duty under the law to try to reconcile all the evidence consistent with the innocence of the defendant and to acquit him if they reasonably, can under all the evidence introduced."

This is an old instruction used in numerous cases in this state and has been passed upon by this court before. It is not covered by any other since granted defendant and the defendant was entitled to it, and the failure to give it in view of the fact that it was not covered by any other instruction is sufficient grounds for reversal.

The court in reading the record in this case will note that the state improperly kept referring to the fact that the defendant had not surrendered himself to some white man while he was near Hamberg, Miss., the first night after the killing. This line of questioning was objected to by the defendant, and the court very promptly sustained the objection of the defendant to this line of testimony as being improper in this case yet although such testimony was ruled out by the court the district attorney made use of same as above set forth in the special bill of exceptions when he, the district attorney made his argument to the jury and, as we have stated herein before, in a case as close as this case this argument was improper and it cannot be said that such a line of argument did not influence the jury in reaching the verdict they reached. Under such circumstances this case should be reversed.

Francis S. Harmon, assistant attorney-general, for the state.

I. Counsel for appellant complains that prejudicial error was committed because none of the six instructions given for the state covers the question that a reasonable doubt may arise from the lack of evidence as well as from the evidence in the case. Counsel cites Hale v. State, 72 Miss. 14, 16 So. 387. The court will find that in the Hale case a specific instruction covering reasonable doubt was granted, and in this specific instruction the phrase "want of evidence" was left out.

In the case at bar the six instructions granted the state all used the stereotyped form, "The court instructs the jury for the state that if they believe beyond every reasonable doubt from the evidence in this case," etc....