Howell v. State

• Citation: 98 Miss. 439,53 So. 954
• Court: Mississippi Supreme Court
• Decision Date: 16 January 1911
• Parties: TOWNES HOWELL v. STATE

53 So. 954

98 Miss. 439

TOWNES HOWELL v. STATE

Supreme Court of Mississippi

January 16, 1911

October 1910

APPEAL from the circuit court, Copiah county, HON. D. M. MILLER Judge.

Appellant Townes Howell, was tried for murder and convicted of manslaughter and sentenced to ten years in the state penitentiary, and from said judgment appeals to this court.

Judgment reversed and cause remanded.

Wells &amp Wells, for appellant.

The court erred in giving to the state instructions marked numbers three, five and six, which are as follows, to-wit:

"Three. The court instructs the jury that a reasonable doubt to authorize an acquittal is a doubt arising on the evidence and not a mere possibility of innocence."

"Five. The court instructs the jury for the state that under the law, you do not have to know that the defendant is guilty before you are authorized to find him guilty, but it is the duty of the jury only to believe from the evidence beyond every reasonable doubt that he is guilty; and in passing upon the guilt or innocence of the defendant, it is not the duty of the jury to entertain doubts which are purely speculative and unsupported by the evidence."

"Sixth. The court instructs the jury for the state, that what is meant, as a reasonable doubt in this case is a doubt that would arise from the evidence or want of evidence to a reasonable man, and it is not the duty of the jury in this case to acquit the defendant on doubts which are unsupported by the evidence, or which might be purely speculative."

The fatal error of these instructions is the same and is contained in each. Each of them is an effort to define what is a reasonable doubt and a direction to the jury not to acquit the defendant on a reasonable doubt unsupported by the evidence or which might arise from the want of the evidence, and each leaves out of the definition one essential element thereof that a reasonable doubt may be founded upon the want of the evidence as well as upon the evidence.

Now, the want of the evidence in behalf of the state in case at bar was and is its great, yea its vital weakness. It had to rely entirely on circumstantial evidence to rebut the positive testimony of the defendant. No wonder then that each definition drawn on behalf of the state as to what constitutes a reasonable doubt should be drawn omitting the essential element above referred to in order that the instructions should be of any service to the state. But how harmful, how fatal the result of this patent error to the defendant?

Not a single instruction for the defendant of the large number obtained in his behalf undertakes to define a reasonable doubt and makes it clear that a reasonable doubt can be found on the want of the evidence just as well as upon the evidence itself. We challenge counsel for the state to point out to us even one such defendant's instruction which was given by the court. The defendant, it is true, asked for an instruction which would have endeavored to correct the vital error which was contained in said three instructions for the state, but it was refused by the court. The court will observe that these definitions of reasonable doubt do not simply omit the essential element of such a definition in not mentioning the fact that it may be founded upon the want of the evidence, but expressly commands the jury not to acquit on any doubt which is unsupported by the evidence, or founded upon the want of the evidence. This then was no simple omission which might be corrected by being supplemented by some other instruction for the defendant, the two making one harmonious definition of the principle, but the said three instructions state the direct opposite of what is the law on that subject. This constitutes fatal error. It must always be followed by a reversal.

What patience has this court with erroneous efforts to define reasonable doubt? How long, O Lord, how long?

By the instruction for the state, of which complaint is made in the second assignment of error, the learned court undertook the dangerous, if not impossible, task of defining that which is generally held to be indefinable. . . . In the matter of asking instructions, the beaten way is the safe way; the known paths are the sure ones. Reversed. Brown v. State, 72 Miss. 98.

"It is assigned for error that the court erred in granting the second instruction asked by the state. We hold, at this term, in Brown v. State, ante, page 95, that this instruction is erroneous. The facts of this case, a case in which the evidence consists of vague threats and circumstantial evidence, emphasized with peculiar force the correctness of that ruling. This certainly is a case in which we cannot say such charge was not material, reversible error. The many unwise efforts to define a reasonable doubt are very remarkable, in view of the previous decisions of this court and of other courts, and of the fact that the phrase itself, 'beyond reasonable doubt' is 'an expression invented by the common law judges for the very reason that it was capable of being understood and applied by plain men in the jury box.' 2 Thomp. Trials, § 2463. If the common law judges in their wisdom settled on this expression, 'beyond a reasonable doubt'--as the one most easily understood by plain men in the jury box, can we not accept this refined gold without seeking to gild it--this lily without painting? . . . and the representatives of the state, an able and accomplished body of gentlemen, should heed the voice of wisdom and caution, saying to them, as to this brief and plain formula: 'This is the way. Walk you in it.' Burt v. State, 72 Miss. 410."

"This charge falls under the condemnation of our opinion in the case of Brown v. State, 72 Miss. 95, where we first animadverted upon a charge infected with the vice which inheres in this eighth instruction in the present case. It falls under the condemnation of our opinion in the case of Burt v. State, 72 Miss. 408, etc. . . . We are constrained again to condemn it. 'Precept upon precept, line upon line, here a little and there a little,' is one method of inculcating legal truths, as it is of teaching scriptural truths, and we patiently and hopefully await the results of this method of winning bench and bar to a recognition of and acquiescence in the judgments of the court." Powers v. State, 74 Miss. 780.

"Definitions of reasonable doubt should not be risked in criminal trials. Reasonable doubt is purely and simply a reasonable doubt. It is its own complete definition, and the accused is entitled to his verdict of twelve men, each of whom, on the whole evidence, must be free from any reasonable doubt in his own mind, not the mind of the prosecutor or the court; and he should be allowed to have his own conception of what a reasonable doubt is to him, not the prosecutor of the court; and he should not be under any legal compulsion to have to give, or be able to formulate and state the reason which may raise a reasonable doubt in his mind and conscience. Suffice it to say that if he, in fact, have any, the accused is entitled absolutely to his vote on the verdict." Klyce v. State, 78 Miss., page 454.

If the face of these oft given and earnest admonitions of this court to refrain from attempting definitions of reasonable doubt, the state's counsel through the lower court tried three times to do so and violated these oft given admonitions and slaughtered the rights of the defendant in so doing, surely then this court should not hesitate to reverse therefor.

It hardly needs citation of authority to show that a reasonable doubt may be entertained by a jury from a want of evidence. This court in Knight v. State, 74 Miss. 141, held as follows, to-wit:

"The first instruction asked for the appellant should have been given as asked. The modification was specially harmful in a case like this, where the defendant relied very strongly upon the want of evidence connecting him with the offense. In the elaborate and learned note of Mr. Freeman to Burt v. State, 48 Am. St. Rep. 570, S. C., 72 Miss. 408, it is said: 'So it is error to limit a reasonable doubt to something which is suggested by, or arises from or springs out of the evidence adduced, as this gives too narrow a definition of reasonable doubt. Such a doubt may arise from a want of evidence as to some fact having a natural connection with the cause. It has reference to that uncertain condition of mind which may remain after considering what has not been proved, as well as what has. Wright v. State, 69 Ind. 163 (35 Am. Rep. 212); Densmore v. State, 67 Ind. 306 (35 Am. Rep. 96). This is in conformity with our holdings in Hall v. State, 72 Miss. 150. . . . Reversed."

See also Jeffries v. State, 77 Miss., page 761; Matthis v. State, 80 Miss., page 498.

We submit that this error above complained of, three times committed in the state's instructions, no where corrected in the defendant's given instructions, attempted to be corrected in a refused instruction for the defendant, the error being a misdirection on the vital point in this close case, a reversal is inevitable--the vice too patent--the injury to the defendant irreparable. We go further and say that in our judgment these three instructions stating directly the opposite of the law would cause a reversal hereof even though there were a half dozen instructions for the defendant stating the law positively and correctly. This is true because they could not be harmonized. The jury would have two standards. It would have no true guide on this vital point.

If there were no other errors in this case than those above complained of, we submit that the case should be reversed and remanded.

The court erred in granting instruction number eleven for the state, which instruction is as follows,...