Ervin v. State
| Decision Date | 12 July 1920 |
| Docket Number | 21038 |
| Citation | 123 Miss. 139,85 So. 183 |
| Court | Mississippi Supreme Court |
| Parties | ERVIN v. STATE |
March 1920
APPEAL from circuit court of Carroll county, HON. T. L. LAMB, Judge.
1 HOMICIDE. Instruction defining manslaughter held not erroneous despite omission, where only defense was self-defense.
An instruction for the state defining "manslaughter" as killing "in the heat of passion without malice," at a time when defendant was in no danger at the hands of deceased, but omitting "without authority of law," was not erroneous where the only defense relied upon by the defendant was "self-defense."
2 HOMICIDE. Cause of death as question for jury.
In a trial for homicide, held on the evidence that it was a question of fact for the jury as to whether an ax wound inflicted by defendant or the prior striking of deceased in the stomach by a brick thrown by defendant was the cause of death.
Lena Ervin was convicted of manslaughter and he appeals. Affirmed.
F. N. Glass, for appellant.
Instruction No. 1 for the state attempted to define manslaughter and was in the following language: "The court instructs the jury for the state, that if you believe from the evidence beyond a reasonable doubt that the defendant killed the deceased in the heat of passion, without malice, at a time when he was in no danger real or apparent of losing his life or of receiving great bodily harm at the hands of the deceased, you will find him guilty of manslaughter . . ." and in attempting to define manslaughter, the court instructed the jury, in the same instruction, as to its duties. The instruction was erroneous in that it was an effort on the part of the state to have the jury acquainted with the necessary elements of manslaughter, but it failed to state one necessary statutory element that the act must be done "without authority of law." It may be contended that the instruction is not a definition of manslaughter, but the language used is one that cannot be viewed in any manner except as a definition, with further instructions regarding the duties of the jury, when it plainly tells the jury that if they believe from the evidence certain things relative to the case at issue you will find him guilty of manslaughter. The language used is nothing short of an effort to define the crime, and then instruct the jury as to its duty in the premises, when the definition robs defendant of a statutory right by failing to give the jury the benefit of a full definition of the crime. The instruction is fatal when it failed to advise the jury that the defendant must be acting without authority of law, before they would be warranted in bringing in a verdict of guilty in the case. This contention is supported by this court in Ivy v. State, 84 Miss. 264, McNeal v. State, 115 Miss. 678, 76 So. 625; Barnes v. State, 118 Miss. 621.
This error was fatal, probably, in the trial of this case which entitled the defendant to a new trial on account of the conflict in the theories with reference to the cause of Blake's death. Under the theory of the state, as presented to the jury, Blake's death was caused by the ax wound in the back, inflicted deliberately by appellant during the second difficulty. However, the only evidence offered by the state was that of Blake's mother-in-law who testified that blood passed from Blake in a bowel discharge shortly before his death, and also the evidence of some negroes that bloody water ran out of the coffin before Blake was buried. It is shown conclusively, however, by the evidence of Dr. Kittrell that the death was due solely to peritonitis caused by the blow in the stomach with a brick, which could not have been caused by the ax wound in the back. (Dr. Kittrell's evidence, Record page 47). Also it is shown by the Doctor that the discharge mentioned could have been caused by peritonitis. (Dr. Kittrell's evidence, same page of the record). This wound was caused under different circumstances entirely, than that which surrounded the parties at the time the ax wound was inflicted. This wound was inflicted with a brick while the parties were in a running fight, Lem being chased by Blake and his wife who were very energetic in their use of brick and an ax on him.
I would, therefore, respectfully submit that for these reasons the verdict was contrary to the law and the evidence; the state's instruction No. 1, in giving to the jury an incomplete definition of manslaughter, with an instruction to find defendant guilty upon finding for only a part of the State's case, contributing largely to the conviction and robbed appellant of a right given to him by law, entitled him to a new trial, and that the lower court erred in overruling defendant's motion for same.
I would respectfully ask that this cause be reversed and remanded and appellant be given a new trial.
Frank Robertson, Attorney-General, for the state.
Appellant complains of the action of the court in granting instruction No. 1 for the state. This instruction may be found at page 69 of the record. It reads as follows: "The court instructs the jury for the state that if you believe from the evidence beyond a reasonable doubt that the defendant killed the deceased in the heat of passion, without malice, at a time when he was in no danger, real or apparent, of losing his life or of receiving great bodily harm at the hand of the deceased, you will find him guilty of manslaughter and the form of your verdict will be, 'We, the jury, find the defendant guilty of manslaughter."
Defendant also complains of instructions Nos. 2 and 3. given for the state, but does not urge this action of the court as error in their brief. It is submitted that there is nothing wrong with instructions Nos. 2 and 3, and I shall confine my argument to instruction No. 1.
It will be noted that instruction No. 1 for the state does not attempt to define the crime of manslaughter and for this reason it was not necessary to include the words of the statute without authority of law. Dixon v. State, 64 So. 468.
The appellant cites Ivy v. State, 84 Miss. 264; McNeal v. State, 115 Miss. 678; and Barnes v. State, 118 Miss. 621. The court in Dixon v. State, cited above, discusses Ivy v. State, and also Rutherford v. State, 100 Miss. 832, on the question of omitting the words "without authority of law" from an instruction.
In the Ivy case the court reversed on other grounds than that of erroneous instructions. The language of the court on the question of omitting the words "without authority of law" is found in the last paragraph of the decision and is as follows: "The first instruction for the state ought to have contained the words, "without authority of law" since it was manifestly drawn under the statute."
The instruction in this case attempted to define murder under section 1149, Code of 1892. It is submitted that this case is not decisive of the case at bar in that the former case dealt with an instruction which attempted to define, not to instruct. Moreover it would appear that the last paragraph of the decision in the Ivy case is dicta.
In the McNeal case, a, manslaughter case, the court held that the omission of the words "without authority of law" in an instruction attempting to define manslaughter was erroneous. It will be seen again that there was an attempt by the court to define the crime under the statute, whereas in the instant case the instruction...
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