Ervin v. State, 21038

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: SYKES, J.
• Citation: 123 Miss. 139,85 So. 183
• Parties: ERVIN v. STATE
• Decision Date: 12 July 1920
• Docket Number: 21038

85 So. 183

123 Miss. 139

ERVIN
v.
STATE

No. 21038

Supreme Court of Mississippi

July 12, 1920

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.

HON. T. L. LAMB, Judge.

Lena Ervin was convicted of manslaughter and he appeals. Affirmed. [123 Miss. 140]

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. [123 Miss. 141]

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. [123...