Dalton v. State

• Decision Date: 02 November 1925
• Docket Number: 25211
• Citation: 105 So. 784,141 Miss. 841
• Court: Mississippi Supreme Court
• Parties: DALTON v. STATE. [*]

105 So. 784

141 Miss. 841

DALTON v. STATE. ^[*]

No. 25211

Supreme Court of Mississippi

November 2, 1925

APPEAL from circuit court of Chickasaw county, first district, HON THOS. E. PEGRAM, Judge.

(In Banc.)

1. CRIMINAL LAW. Conviction not reversed on appeal for refusal of change of venue, except on clear showing of abuse of trial court's discretion.

The granting of change of venue is so largely in the discretion of trial court that a judgment of conviction of crime will not be reversed on appeal on the ground that a change of venue has been refused unless it clearly appears that the trial court abused its discretion.

2 HOMICIDE. Refusal to direct verdict of not guilty held not error.

Evidence in homicide case examined, and held, that trial court committed no error in refusing to direct a verdict of not guilty.

3 HOMICIDE. Accused, who, after engaging in combat, struck deceased with dangerous weapon, causing death, held guilty of "manslaughter."

Where the defendant and deceased engaged in protracted altercation and combat, the anger of each being highly aroused against the other, resulting in the defendant not in necessary self-defense striking the deceased a blow on the head with a dangerous weapon, causing his death, the defendant is guilty of manslaughter, as defined by section 1238, Code of 1906 (Hemingway's Code, section 968), providing that the killing of 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 self-defense, shall be "manslaughter."

4 HOMICIDE. Charge on manslaughter, leaving out phrase "in the heat of passion," held not harmful to accused.

The instruction given for the state, in which is left out the phrase "in the heat of passion," was not harmful, but advantageous to the defendant.

5. CRIMINAL LAW. Accused, convicted of manslaughter, cannot complain on appeal of court's failure to define manslaughter, if he did not ask for such instruction.

APPEAL from circuit court of Chickasaw county, first district, HON. THOS. E. PEGRAM, Judge.

A. W. Dalton was convicted of manslaughter, and he appeals. Affirmed.

Affirmed.

B. N. Knox, for appellant.

An application for a change of venue, in the form prescribed by statute, presents a prima-facie showing for such change. Magness v. State, 103 Miss. 30. In the case at bar the appellant's affidavit was supported by the affidavits of two other resident citizens of Chickasaw county. To this the state introduced proof by several witnesses, but in each case, as the record will disclose, the witness was basing his opinion upon the high standard of citizenship of the county, or his personal opinion, on the theory that a "jury ought to be had from our county that would give the appellant a fair trial."

In the case at bar the proof by the state shows, from the officers of the court, that it would be a very hard job to get a jury. These facts place this case on the same basis as State v. Tennison, 79 Miss. 708, where this court said the lower court erred in not granting the change.

The court granted the state an instruction, defining the crime of manslaughter, which was the only pronouncement of the law touching the crime of manslaughter that was given the jury by the learned court, and this pronouncement was glaringly incorrect. It absolutely precluded the appellant from availing himself of the defense given him by section 961, Hemingway's Code, sections b and c, which is as follows: "The killing of any human being by the act, procurement or omission of another shall be excusable . . . (b) When committed by accident and misfortune, in the beat of passion upon any sudden and sufficient provocation."

The jury was misled into believing that, regardless of whether the killing was by accident and misfortune, in a sudden beat of passion upon sufficient provocation, they should convict the defendant of manslaughter. I submit that this erroneous statement of the law was fatal and deprived the appellant of a fair and impartial trial.

What proof is there to warrant the trial judge in submitting this case to the jury on a question of murder and of manslaughter? There is none, unless the learned trial judge was mistaken in his conception of the law then, as he was when he later charged the jury, and thought that the defendant had committed a crime, because there was proof that the defendant killed a man, without authority of law, without malice, and not in necessary self-defense. The state not only failed to prove the defendant guilty beyond all reasonable doubt, but did prove by all the evidence that Roland Kirby met his death as the result of a blow inflicted by appellant in absolute self-defense of his life. What jury, had it not been influenced, consciously or unconsciously, by the hostile public sentiment, would have returned a verdict of "guilty" against this appellant? If this defendant is guilty of a crime, or if a crime has been proven by the, state in this case, then section 960 (f) of Hemingway's Code, purporting to tell the citizens of Mississippi when they are justified in taking the life of their fellow human being is "nothing but a scrap of paper." Clearly, in this state of the proof, the court should have sustained the appellant's motion for a directed verdict of "not guilty."

J. L. Byrd, assistant attorney-general, for the state.

I. It is alleged that the court erred in refusing to grant a change of venue, on motion seasonably made by the appellant. The appellant made the statutory request, accompanied by the proper affidavit, and quite a number of witnesses were introduced both for the state, and for the defendant, on the question of the state of mind of the people of Chickasaw county.

Counsel for appellant insists that this case falls within the rule announced in Magness v. State, 103 Miss. 30. We submit, however, that this case does not fall within this rule, since the state had more than met the burden placed on it by the prima-facie case made out by appellant. Every witness introduced in behalf of the state, and there were numerous witnesses, testified that the defendant could, in their opinion, get a fair and impartial trial, and that his case had not been prejudged.

The record, as a whole, discloses that the defendant could, and as far as the record shows, did get a fair and impartial trial, and there was no error in the action of the court in overruling the motion for change of venue. See Mackie v. State, 138 Miss. 740, 103 So. 379.

II. Appellant argues that the court erred in overruling the appellant's motion for a peremptory instruction, and that the verdict of the jury was unwarranted, as the state's witness testified that the appellant acted in self-defense. We wish the court to bear in mind that the defendant introduced no evidence, but preferred to rest his defense on the record made by the state. His defense was self-defense, and this court is left to the determination of the one question, whether or not the facts revealed by the record are sufficient to justify the defendant in anticipating death or some great bodily harm at the hands of the deceased at the time the fatal blow was struck. With the testimony in the record we submit that the jury was entirely correct in arriving at the verdict which it did.

III. Complaint is made of instruction given at the request of the state. This instruction undertakes to define manslaughter, but one important element of manslaughter is omitted from the instruction, and that is that of "heat of passion." We submit, however, that if this instruction was erroneous, it was a harmless error, because the record shows beyond question that there was an element, of manslaughter in the case, and if the jury found a verdict of manslaughter and there was testimony on which to base it, the fact that the instruction erroneously defined manslaughter could not harm the defendant.

OPINION

ANDERSON, J.

Appellant, A. W. Dalton, was indicted in the circuit court of Chickasaw county for the murder of Roland Kirby, and convicted of manslaughter, from which judgment he prosecutes this appeal.

Appellant made application to the trial court for a change of venue on the ground that the public mind was prejudiced against his cause, and therefore he could not get a fair and impartial trial in Chickasaw county. His application was overruled, and that action of the court is urged by the appellant as a ground for reversal of the judgment of conviction. Appellant made the prima-facie showing prescribed by the statute for a change of venue. Thereupon both the appellant and the state introduced witnesses who gave evidence on the question. There was some evidence tending to show that there would be some difficulty in getting fair and impartial jurors from certain sections of the county. A...