Howard v. State

• Decision Date: 30 May 1938
• Docket Number: 33129
• Citation: 182 Miss. 27,181 So. 525
• Court: Mississippi Supreme Court
• Parties: HOWARD v. STATE

181 So. 525

182 Miss. 27

HOWARD v. STATE

No. 33129

Supreme Court of Mississippi

May 30, 1938

Division B

1 HOMICIDE.

In murder prosecution, where defendant testified that she was being assaulted and beaten by two persons, each about her size and strength, whether defendant believed and had good reason to believe that she was in danger of loss of her life or great bodily harm from such beating was for jury.

2. CRIMINAL LAW.

An instruction that flight was a circumstance from which guilt might be inferred was erroneous.

3. CRIMINAL LAW.

Flight is a circumstance which may be considered by the jury in connection with all the other material evidence in the case in determining guilt but it is not substantive evidence of guilt, since it is consistent with innocence as well as guilt.

4. CRIMINAL LAW.

Standing alone, flight is insufficient to establish guilt.

5. CRIMINAL LAW.

In murder prosecution where evidence made a case of murder manslaughter, or not guilty, failure to give manslaughter instruction was not error, where such instruction was not requested and the instruction given for the state did not exclude such an instruction.

6 HOMICIDE.

Where evidence made a case of murder, manslaughter or not guilty, instruction that if from all evidence jury had reasonable doubt as to whether the killing was done in heat of passion or proceeded from principle of self-defense, jury should find defendant not guilty, gave defendant more than she was entitled to, since it permitted acquittal if the killing was manslaughter.

HON. W. A. ALCORN, JR., Judge.

APPEAL from the circuit court of Bolivar county, HON.W. A. ALCORN, JR., Judge.

Daisy Howard was convicted of murder, and she appeals. Reversed and remanded.

Reversed and remanded.

Roberts & Smith, of Cleveland, for appellant.

The verdict of the jury is contrary to law and the evidence and, therefore, the request of appellant for a peremptory instruction to the jury to find the appellant not guilty should have been granted.

This court has many times held that where a defendant testifies to a state of facts which will absolve him or her from criminal responsibility, and such testimony is not contradicted, then the defendant's evidence must be taken as true and a peremptory instruction granted.

Weathersby v. State, 147 So. 481.

If the court should be of the opinion that under the evidence appellant should not be discharged, we then earnestly insist that certainly the evidence does not and cannot sustain a conviction for murder. There was no element of malice shown in the case, and since the uncontradicted proof is that both the deceased and Carrie Floyd were in the act of assaulting appellant at the time the shots were fired, and, although we contend that appellant should be discharged because the shots were fired in self-defense, there could be no question that the shots were fired in the heat of passion, if not in self- defense.

Staiger v. State, 70 So. 690.

We have assigned as error the giving of two instructions on behalf of the State, either of which, we think, is sufficiently erroneous and harmful to cause a reversal of this case. This court has held that when a case is close upon the facts it is highly important that no error of law appear in the record.

Johnson v. State, 23 So. 579.

The second instruction given for the state is positively erroneous and prejudicial to the rights of appellant. The instruction complained of is as follows: "The court instructs the jury. for the State that even though you may believe, from the evidence in this case, that the defendant and the deceased had some kind of personal difficulty inside the cafe of John D. McWilliams, and that the deceased was actually engaged in assaulting the defendant with her fist and feet, and was being beaten without excuse or justification, this does not and cannot, in law, excuse or justify the defendant in taking the life of the deceased. "

This instruction, in effect, is a peremptory instruction to the jury that appellant was not and could not, in law, be justified in taking the life of Carrie McWilliams in this case, because it directs the jury that if they believe that there was a difficulty in the cafe between appellant and Carrie McWilliams, and that Carrie McWilliams was beating appellant without excuse or justification, then appellant was not and could not be justified in taking her life.

The instruction leaves completely out of view and takes from the consideration of the jury the fact that Carrie Floyd was also beating appellant with the bottle and instructs them, if they believe an admitted fact, the appellant was not justified. The instruction is further erroneous in that it is not qualified as to the relative size of appellant and the other women.

Hill v. State, 49 So. 145; Bailey v. State, 165 So. 122.

The instruction is not only not cured by the instructions received by the appellant, but it is in direct conflict with and at variance with instruction No. 3 given for the appellant.

A part of this instruction complained of and which, in thought and principle, is wholly disconnected from the other portion of it, is as follows: "The court charges the jury that flight is a circumstance from which guilt might be inferred."

The granting by the court of this instruction was error for which this cause should be reversed and remanded. There is no evidence in the record from which flight can be inferred, and if there was, whether or not there was flight would be a question for the jury. This charge does not define flight and leaves nothing to the discretion of the jury. The effect of this instruction is to charge the jury that, as a matter of law, the facts shown constituted flight, and that the jury must consider such flight as a circumstance of guilt.

26 C. J. 741; People v. Herbert, 361 Ill. 64, 196 N.E. 821.

Flight from the scene of an offense is not substantive evidence of guilt, since it is consistent with innocence as well as guilt, though it may bear upon the purpose and intent of the party.

People v. MacCollough, 274 N.W. 693, 281 Mich. 15; Walters v. State, 135 So. 600.

W. D. Conn, Jr., Assistant Attorney-General, for the State.

We submit that the facts of the case at bar do not call for the application of the rule of the Weathersby case, 147 So. 481, relied on by appellant. The least that can be said with reference to the facts of this case is that the homicide was of no lesser grade than manslaughter. The jury could have been well warranted in finding that this was an unnecessary killing at most, whether with malice or not. And, since a charge of manslaughter is an integral part of an indictment for murder, a peremptory instruction to find the defendant not guilty was properly refused, on the facts of this case.

Redwine v. State, 149 Miss. 741, 115 So. 889; Calvin v. State, 175 Miss. 699, 168 So. 75.

There was no manslaughter instruction requested by either the state or the defendant, but the defendant allowed the case to go to the jury on instructions which were calculated to require the jury to convict of murder or acquit. This court has held that in determining whether the facts of a case demonstrated that the homicide was murder or manslaughter, the jury has a wide discretion in their finding. They may believe a part of some of the testimony and disbelieve other parts. If there is any reasonable, competent evidence in the record to sustain the verdict of the jury, this court will not set aside the finding of the jury.

Woodward v. State, 130 Miss. 611, 94 So. 717; Cook v. State, 85 Miss. 738, 35 So. 110; Triplett v. State, 159 Miss. 365, 132 So. 448.

Appellant complains of the instruction given at the request of the state which, in substance, tells the jury that an assault on one with the fists and feet affords no justification for taking the life of the party. This instruction states a correct rule of law.

Waldrop v. State, 98 Miss. 567, 54 So. 66; Moore v. State, 144 Miss. 649, 110 So. 216; Hall v. State, 1 So. 351.

We submit there is no conflict in the instructions.

Guilt cannot be predicated upon the fact of flight alone, but it is a matter from which guilty knowledge and fear may be inferred and is a proper matter for the jury to consider in connection with all the other evidence in a case. The writer has not found where the court has ever approved an instruction worded such as the one here considered. Certain instructions involving the law of flight have been considered by the court heretofore and were uniformly held not to be on the weight of the evidence.

Tatum v. State, 142 Miss. 110, 107 So. 418; Ransom v. State, 149 Miss. 262, 115 So. 428; Sims v. State, 164 Miss. 16, 142 So. 468.

In these cases the instructions with reference to flight go further than does the one at bar and while we think the instruction, as given, states, in substance, a correct rule of law, yet, as to whether it goes far enough is a matter submitted to the court.

OPINION

Anderson, J.

Appellant was indicted, tried and convicted in the circuit court of Bolivar county of the crime of murder, and sentenced to the penitentiary for life. From that judgment she prosecutes this appeal.

Appellant is a negro woman thirty-seven years old. She was convicted of the murder of Carrie McWilliams, also a negro woman. Carrie...