Carter v. State

• Decision Date: 05 March 1934
• Docket Number: 30980
• Citation: 152 So. 876,169 Miss. 285
• Court: Mississippi Supreme Court
• Parties: CARTER v. STATE

152 So. 876

169 Miss. 285

CARTER v. STATE

No. 30980

Supreme Court of Mississippi

March 5, 1934

Division B

1. CRIMINAL LAW.

Instruction stating correct abstract principle of law applicable to state's case is not objectionable, when governing principles of law are correctly stated to jury by other instructions.

2. CRIMINAL LAW.

Instruction in substance, that person present at time and place crime is committed by another, and who unlawfully encourages and commands such other person to commit crime, is subject to indictment jointly with person who actually commits crime held not objectionable as assuming that crime was committed and that defendant encouraged and aided in its commission.

3. CRIMINAL LAW.

Instruction in substance, authorizing conviction of manslaughter if defendant, acting in conjunction with others, unlawfully killed named person, in heat of passion, without malice, by use of dangerous weapon, and not in necessary self-defense, held not objectionable as telling jury that defendant was guilty unless he acted in necessary self-defense.

4. HOMICIDE.

In homicide prosecution, instruction, in substance, authorizing conviction of manslaughter even though jury believed that deceased made threats against lives of defendants, held not objectionable.

5. HOMICIDE.

In homicide prosecution, instruction, in substance, authorizing conviction under indictment if jury believed that defendant, acting in conjunction with named persons, unlawfully, with malice aforethought, killed named person, held not objectionable as authorizing conviction without finding that person who actually killed deceased was guilty.

6. HOMICIDE.

In homicide prosecution, instruction, in part, authorizing conviction irrespective of whether deceased made threats against defendant's life, and regardless of deceased's treatment of his wife, held not objectionable.

7. HOMICIDE.

In homicide prosecution, instruction on self-defense, requiring defendant to have been in danger, real or apparent, held not erroneous.

8. CRIMINAL LAW.

Instructions for both state and defendant must be read together.

9. CRIMINAL LAW.

Minor errors in one or more instructions, if reconcilable when instructions for both state and defendant are read together, are harmless, if they make consistent whole and correctly state applicable principles of law.

HON. J. Q. LANGSTON, Judge.

APPEAL from circuit court of Marion county, HON. J. Q. LANGSTON, Judge.

J. W. V. Carter was convicted of manslaughter, and he appeals. Judgment affirmed.

Affirmed.

T. B. Davis and Robert Hall, both of Columbia, for appellant.

Assuming that the testimony of all the witnesses who sought to bring about this conviction be true, yet it is insufficient to make out a case against this appellant.

The following instruction is erroneous: "The court instructs the jury for the state that it is the law of this state that a person who is present at time and place where another commits a crime, and who wilfully, unlawfully, feloniously and of his malice aforethought encourages and commands such other person to commit such crime, is subject to indictment and conviction for such crime just the same and jointly with the person who actually commits such crime."

This instruction assumes that a crime has been committed and that this appellant encourage and commanded the commission of this crime.

Instruction No. 2 is erroneous in that it charges the jury that this appellant is guilty unless he acted in his necessary self-defense.

Instruction No. 3 is erroneous for several reasons; in the first place this instruction as well as other instructions for the state permit the jury to return a verdict of guilty against this defendant without first finding the principal Fred Carter guilty of the crime charged.

Harper v. State, 83 Miss. 402.

Again this instruction and other instructions granted the state tells the jury that they may convict this defendant even though the deceased made threats against the life of said defendant and regardless of what they may believe as to the treatment accorded the wife of the deceased by the deceased, in other words the court tells the jury that they need not consider the threats made by the deceased against the lives of the defendants. This instruction is very harmful.

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

Each person present, consenting to the commission of the offense, and doing any act which is an ingredient in the crime, or immediately connected with it, or leading to its commission, is as much a principle as if he had with his own hand committed the whole offense.

McCoy v. State, 91 Miss. 257, 44 So. 814; Kittrell v. State, 89 Miss. 666, 42 So. 609; Douglas v. State, 44 So. 817; Crawford v. State, 133 Miss. 147, 97 So. 534; Dedeaux v. State, 125 Miss. 326, 87 So. 664; Eaton v. State, 163 Miss. 130, 140 So. 729; Cody v. State, 148 So. 627.

OPINION

Anderson, J.

Appellant was indicted for the murder of Robert McCain, and was convicted of the crime of manslaughter and sentenced to the penitentiary for a term of fifteen years. From that judgment he prosecutes this appeal.

Appellant and his two sons, Fred and Murray Carter, were jointly indicated for the murder of McCain. There was a severance as to appellant, but the two sons were tried jointly and convicted of manslaughter, and sentenced to the penitentiary for fifteen years. That judgment was affirmed by the Supreme Court in Carter et al. v. State, 167 Miss. 331, 145 So. 739. The killing was done by appellant's son Fred Carter, but the state's evidence showed that appellant and the other son, Murray Carter, were present aiding, abetting, and encouraging the homicide.

Appellant assigns and argues as error the action of the court in giving the following instructions for the state:

1. "The court instructs the jury for the state that it is the law of this state that a person who is present at the time and place where another commits a crime, and who wilfully, unlawfully, feloniously and of his malice aforethought encourages and commands such other person to commit such crime, is subject to indictment and conviction for such crime just the same and jointly with the person who actually commits such crime."

2. "The court instructs the jury for the state that if you believe from the evidence beyond a reasonable doubt that on the occasion in question, the defendant, J. W. V. Carter acting in conjunction with Fred Carter and Murray Carter, did then and there wilfully, unlawfully and feloniously kill Robert McCain, a human being, in the heat of passion, without malice, by the use of a dangerous weapon, without authority of law, and not in necessary...