Grant v. State
| Decision Date | 08 April 1935 |
| Docket Number | 31591 |
| Citation | 172 Miss. 309,160 So. 600 |
| Court | Mississippi Supreme Court |
| Parties | GRANT v. STATE |
(In Banc.)
CRIMINAL LAW.
In murder prosecution, where defense testimony authorized verdict of manslaughter, although instruction defining manslaughter was not requested, instruction that jury "may," if it finds accused guilty, render either of three specified murder verdicts held reversible error because excluding conviction for manslaughter; the word "may" being mandatory, not permissive.
APPEAL from the circuit court of Issaquena county HON. E. L. BRIEN Judge.
Alferta Grant was convicted of murder, and he appeals. Reversed and remanded.
Reversed and remanded.
John B. Gee, of Rolling Fork, for appellant.
The trial court erred in granting the instruction for the state, which instruction reads as follows: "The court instructs the jury for the state that if you find the defendant guilty in this case, your verdict may be in either of the following, to-wit: 'We, the jury find the defendant guilty as charged in the indictment,' in which event the court will sentence the defendant to be hanged, or, second: 'We the jury find the defendant guilty as charged in the indictment but cannot agree as to his punishment,' in which event the court will sentence the defendant to be confined in the state penitentiary for the period of his natural life, or, third: 'We the jury find the defendant guilty as charged in the indictment and fix his punishment at confinement in the state penitentiary for the period of his natural life.'"
The state cannot break apart an approved instruction of this court, and use only such parts that are favorable to the state and eliminate such parts that are favorable to the accused, as was done in this instance.
This instruction, together with others granted for the state, admits of but the highest degree of punishment in event the jury should believe the defendant guilty of anything.
Ex parte Grimmett, 152 So. 263; 25 So. 689; 36 So. 1012.
The instruction which the appellee declares to be permissive is only permissive as to a verdict for murder. It instructs the jury that it may return either of the three murder verdicts.
Tatum v. State, 142 Miss. 110.
W. D. Conn, Jr., Assistant Attorney-General, for the state.
It will be noticed that the instruction No. 1 complained of is permissive and not mandatory and does not operate to shut out the jury to a consideration of murder alone. Since this instruction, in setting out the forms of verdict which might be returned, is permissive in form and does not preclude a manslaughter verdict, it seems that this instruction is not erroneous in view of the following decisions:
McLeod v. State, 130 Miss. 83, 92 So. 828; Tatum v. State, 142 Miss. 110, 107 So. 418; Grady v. State, 144 Miss. 778, 110 So. 225; Davis v. State (Miss.), 154 So. 304.
The trial court cannot give an instruction unless it is requested so to do in writing and where the defendant has asked no instruction relating to manslaughter, there is nothing of which he may complain.
McLeod v. State, 130 Miss. 83, 92 So. 828; Cosey v. State, 161 Miss. 747, 138 So. 344.
Appellant, Alferta Grant, was convicted in the circuit court of Issaquena county on a charge of murder, and was sentenced to be hanged, and from this conviction and sentence this appeal was prosecuted.
The evidence offered by the state would support the conviction of murder; while under the testimony of the appellant, which is in a measure corroborated by the testimony of one of the principal state witnesses, a manslaughter verdict might have properly been returned. Neither the state nor the defendant requested an instruction defining manslaughter, or announcing the law applicable thereto; but the state secured an instruction reading as follows:
The appellant contends that this instruction is erroneous for the reason that it prohibits a verdict of manslaughter, and shut the jury up to a verdict of murder or not guilty; and this assignment of error calls for a reconsideration of former decisions of this court bearing on this point.
In the case of Johnson v. State, 75 Miss. 635, 23 So. 579, it was held that if a conviction of manslaughter would be correct should the jury accept one view of the evidence, an instruction limiting the verdict to a conviction of murder or an acquittal was erroneous.
In Allen v. State, 139 Miss. 605, 104 So. 353, the state secured an instruction which reads, in part, as follows: "The court instructs the jury for the state that you may return either of the following verdicts in this case, to-wit," followed by the forms for the three possible murder verdicts, and also a verdict of not guilty. Upon the authority of Johnson v. State, supra, the court held that this instruction excluded a manslaughter verdict, and that, since the evidence warranted a verdict of manslaughter, it was reversible error, although no instruction on manslaughter was requested.
In Tatum v. State, 142 Miss. 110, 107 So. 418, the trial court granted the following instruction, "The court instructs the jury for ...
To continue reading
Request your trial
-
Adams v. State
...imprisonment, or that they could disagree as to the punishment and the court would sentence him to life imprisonment. In Grant v. State, 172 Miss. 309, 160 So. 600, the reviewed the cases dealing with this question and overruled its previous decision in the case of Tatum v. State, 142 Miss.......
-
Watts v. State
...United States, 1908, 207 U.S. 425, 28 S.Ct. 163, 52 L.Ed. 278.2 See State v. Starr, 1917, 24 N.M. 180, 173 P. 674, and Grant v. State, 1935, 172 Miss. 309, 160 So. 600. ...
-
McMullen v. State, 47607
...as charged.' Your verdict should be written upon a separate sheet of paper.' A similar instruction was objected to in Grant v. State, 172 Miss. 309, 160 So. 600 (1935) on the grounds that it prohibited a verdict of manslaughter, and shut the jury up to a verdict of murder or not guilty. The......
-
Dillon v. State
... ... jury rejected the insanity plea and the evidence abundantly ... sustains the verdict. The failure to inform the jury that it ... might convict appellant of manslaughter under these ... conditions was not error. Morris v. State, Miss., ... 174 So. 562 (not reported in state reports); Grant v ... State, 172 Miss. 309, 160 So. 600 ... Appellant says that the conviction of murder cannot stand ... because the evidence fails to show that appellant entertained ... malice. The jury was properly instructed on that question, ... both by the state and the defendant. As to ... ...