Houston v. State

• Decision Date: 07 July 1913
• Docket Number: 16,662
• Citation: 62 So. 421,105 Miss. 413
• Court: Mississippi Supreme Court
• Parties: FLOYD HUSTON v. STATE

62 So. 421

105 Miss. 413

FLOYD HUSTON v. STATE

No. 16,662

Supreme Court of Mississippi

July 7, 1913

APPEAL from the circuit court of Marshall county, HON. H. K. MAHON Judge.

Floyd Huston was convicted of manslaughter and appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

W. A Belk, for appellant.

Appellant is guilty of murder or nothing. If the state's evidence was sufficient to develop any theory at all it was to the effect that Floyd Huston, the appellant, without any provocation whatever sought Harris, interrogated him about his hat, accused him of being responsible for the loss of some money, rubbed his pistol under Harris' nose, shoved him back and shot him at a time when Harris was doing nothing whatever to Huston. Yet the state asked for and received a charge of manslaughter. I fail to see the slightest element of manslaughter in this case. As Judge COOK has so well said in Parker v. State, 58 So. 979: "There is no half way ground here; no debatable question, except the defendant's guilt or innocence of murder." It seems that in reaching such a verdict the jury "struck a balance by crediting the defendant with self defense and then debting him with murder, and by this process finding him guilty of manslaughter" to again quote from Judge COOK in the Parker case, supra.

Wherefore we insist that it was fatal error for the state to have been given this charge on manslaughter. As said by Judge CAMPBELL in Virgil v. State, in 63 Miss. 320 in discussing this question: "The danger from such an instruction is that the jury took license from it to find a verdict for manslaughter upon testimony on which it would shrink from rendering a verdict of guilty of the higher crime charged.

Geo. H Ethridge, assistant attorney-general, for the state.

As to the sixth assignment of error, second division of the argument in the brief of appellant, that the appellant is guilty of murder or nothing, I submit that it is wholly untenable. The deceased in his dying declaration said that Floyd Huston accused him of bringing a man over there that beat him out of his money and rubbed a pistol in his face and shot him. This, taken in connection with the testimony of the defense that Harris cursed the appellant as he is claimed to have cursed him and coupled with the other circumstances in evidence would, under some phases, constitute manslaughter. The jury does not have to believe the one theory and discard the other entirely, but they can accept such parts of the testimony of the state as they may believe to be true and accept such part of the defendant's testimony as they may believe true, and render a verdict on such testimony though neither the theory of the defendant or the state is accepted as an entirety. In this case, the jury might believe that the deceased used the language attributed to him by Huston and they may have believed that Huston shot him in the heat of passion and not from cold, deliberate design to murder. The jury had a right to accept the theory of the state as an entirety if they believed it beyond a reasonable doubt, and they had a right to accept the theory of the defendant if they believed it, or they had a right, if they believed from the evidence that Huston provoked the difficulty and if the deceased resented the insults heaped upon him and did actually draw his pistol and shot for fear of danger by Huston, to find him guilty of manslaughter, because the appellant would not be justifiable in shooting even in self defense if he started the difficulty and then shot to save his life. He had to be free from blame for bringing on the difficulty or else he had to try to abandon the difficulty to the utmost of his ability under the circumstances before he could enjoy the right of self-defense. Suppose the jury did believe that Harris said that he would shoot any man that accused him of stealing a hat, and suppose that Huston shot him for such statement when Harris was doing nothing and making no overt act to do any harm to him; that might be a sufficient statement, considering the language that Huston attributes to Harris to influence the passion of a man in good standing in society to such an extent as to reduce the killing from murder to manslaughter but when this is considered in connection with the instructions that the defendant obtained telling the jury that they must acquit unless the evidence convinced them beyond a reasonable doubt and to the entire satisfaction of the jury. The jury might have been influenced by this set of instructions telling them that they could not convict of murder unless they not only believed him guilty beyond a reasonable doubt but also that it must be to the entire satisfaction of the jury. It would be a strange view for the court to take, and is a strange view for counsel to take that the jury must accept absolutely the theory of the one or the other. The evidence of one side may modify the evidence of the other side. It may be that the jury does not believe entirely all the testimony on either side and they may have taken the several parts of the evidence and considered them together; and certain theories and facts in this case that would make manslaughter. Our statutes have reduced certain offences at common law to manslaughter and the circumstances under which cases may constitute manslaughter are very diversified. Our statutes undertake to announce specifically a great many phases of killing and pronounce them murder, some justifiable, some excusable and some manslaughter, but the specific statutory declaration by the concluding section of manslaughter in sweeping terms declares that every killing not governed by the express provisions of the Code, shall constitute manslaughter. It is exceeding difficult to draw the line between murder and manslaughter. Especially is this true where killings occur in hot blood where the parties are more or less influenced by liquor and where each party knows the other to be dead game and knows that any trifling might result in serious consequences. A man may misjudge his right to take human life; he may honestly think in his own mind that he has a right to take life, but if the facts and circumstances surrounding him are not such that a man reasonably has a right to do so, he is not justified. What he might term reasonable, or what he might think reasonable might not meet the standard of reasonableness required by the jury, and in such cases, the offense would be manslaughter, because a man would be acting on an honest belief of a right to take life and would not be guilty of the cold and deliberate malice necessary to constitute murder, and every unlawful killing that is not malicious and premeditated is manslaughter and not murder.

The statutes of what constitute murder and manslaughter are so diversified that the court should accord to the jury the widest latitude in determining these facts. Besides, if a killing is not justifiable, even if it is deliberate and cold-blooded murder, and the jury convict the defendant of the unlawful offense of manslaughter, he cannot be heard to complain because, if there is any error it is error in his favor, and certainly the court will not give him the benefit of error in his favor. I think that the court has gone wide of the mark in reversing cases for manslaughter charge because it is difficult to see how it could be hurtful to the defendant. It mitigates his punishment, if anything, because wherever the jury believe that he is not justifiable, we cannot assume that they are disposed to hesitate in holding a man to accountability when he is not justified in killing. The court ought not to substitute its judgment for that of the circuit judge and of the jury, if by any possible hypothesis, the defendant is guilty of either charge. If the testimony shows him to be...