Hudson v. State

• Decision Date: 15 May 1939
• Docket Number: 33554
• Citation: 188 So. 561,185 Miss. 677
• Court: Mississippi Supreme Court
• Parties: HUDSON v. STATE

188 So. 561

185 Miss. 677

HUDSON v. STATE

No. 33554

Supreme Court of Mississippi, Division A

May 15, 1939

APPEAL from the circuit court of Monroe county HON. THOS. H JOHNSTON, Judge.

Jim Hudson was convicted of murder, and he appeals. Affirmed.

Affirmed.

R. L Pullen and Richard B. Booth, both of Aberdeen, for appellant.

The court committed error in granting each and all of the instructions requested by the appellee, particularly Instruction No. 2. Appellant contends that Instruction No. 2 granted for the state was fatally erroneous in that it failed to correctly guide the jury in reaching a verdict for a number of reasons, and for purposes of discussion these reasons will be divided into several topics. First, that the instruction erroneously defined malice aforethought. Second that the instruction was on the weight of the evidence. Third, the instruction limits self-defense to the moment of the killing. Fourth, the instruction failed to include therein the phrase, "Believe from the evidence in the case beyond a reasonable doubt."

The instruction is clearly erroneous and prejudicial in that it informs the jury that it is sufficient that the deliberate design to kill existed only at the very instant of the fatal stabbing and that such constitutes malice aforethought; and in that it makes every intentional killing murder, unless in self defense.

Though it may have been termed deliberation, premeditation deliberate design, premeditated design, or malice aforethought, the quality represented has always been considered and recognized by this court as an essential element of the crime of murder.

McDonald v. State, 29 So. 171, 78 Miss. 369; Gamblin v. State, 29 So. 764; Breet v. State, 47 So. 781, 94 Miss. 669; Burnett v. State, 46 So. 248, 92 Miss. 826; Caffey v. State, 24 So. 315; Herring v. State, 99 So. 270, 134 Miss. 505; Kearney v. State, 8 So. 292, 68 Miss. 233; Hunter v. State, 21 So. 306, 74 Miss. 515; Beasley v. State, 8. So. 234, 64 Miss. 518; 13 R. C. L. 931, 932; Lott v. State, 93 So. 481, 130 Miss. 119; Smith v. State, 91 So. 41; Butler v. State, 170 So. 148, 177 Miss. 91; State of Iowa v. Sypes, 47 A. L. R. 407, 209 N.W. 458.

The process of premeditation and deliberation cannot be simultaneous with the commission of the act, but must precede the act by some appreciable length of time and must precede the formation of the design to kill.

State v. Sopher, 70 Iowa 494, 30 N.W. 917; Commonwealth v. Tucker, 189 Mass. 457, 7 L. R. A. (N. S.) 1056, 30 N.W. 917; State v. Clayton, 83 N. J. L. 673, 85 A. 173.

It is not enough that the design to kill existed at the time of the killing, but it must have been formed before it was put into execution.

29 C. J. 1116.

The thought of taking life must have been consciously conceived in the mind, and the conception must have been meditated on, and a deliberate determination formed to do the act, though these things may follow as instantaneously as successive thought can follow each other.

13 R. C. L. 777; Jackson v. State, 79 Miss. 42, 31 So. 420; McDonald v. State, 29 So. 171, 78 Miss. 369.

Since in a criminal case the jury returns no specific findings of fact, and it is impossible in most cases for the court to honestly say that the jury did or did not accept as true certain facts, it is impossible to say, except in some few cases, that the defendant was not prejudiced by an erroneous instruction. The damage to defendant will be increased where the evidence is nearly evenly balanced, or is directly conflicting on the point which is erroneously defined.

Cook v. State, 85 Miss. 738, 38 So. 110.

The instruction was on the weight of the evidence.

McDonald v. State, 29 So. 171, 78 Miss. 369.

The instruction deprives the defendant of the value of the presumption of innocence and removes from the consideration of the jury everything but the immediate intent at the time of the stabbing and is clearly an instruction on the weight of evidence. As such it can only mislead the jury on the law as to one of the material elements of the case, and operated to the great prejudice of the defendant; and for these reasons alone constitutes reversible error.

Wilburn v. State, 18 So. 576, 73 Miss. 245; Hood v. State, 155 So. 679, 170 Miss. 630; Leverett v. State, 73 So. 233, 112 Miss. 394; Wicker v. State, 65 So. 885, 107 Miss. 690; Wood v. State, 33 So. 285, 81 Miss. 408; Mosely v. State, 41 So. 384, 89 Miss. 802.

The instruction limits self-defense to the moment of the killing.

Vance v. State, 183 So. 280; Irby v. State, 185 So. 812.

The instruction fails to include therein the phrase: "Believe from the evidence in the case beyond a reasonable doubt."

Butler v. State, 83 Miss. 437; Butler v. State, 177 Miss. 91, 170! So. 148; Busby v. State, 177 Miss. 68, 170 So. 140; Powers v. State, 168 Miss. 541, 151 So. 730; Godwin v. State, 73 Miss. 873, 19 So. 712.

We do not have a case here of complementary instructions. The instruction complained of was the only instruction wherein the state set out its theory of the case and attempted to apply a principle of law to the evidence of the case. It is true that the state, in its first instruction, set out a correct statement of the law, but that instruction was purely and certainly a statement of an abstract principle of law, taken evidently from the Code of 1930. We want further to make note that the instruction complained of is the last instruction given for the state in this case.

14 R. C. L., pages 814, 815; I. C. R. R. Co. v. Minor, 69 Miss. 710, 11 So. 101, 16 L. R. A. 627; Ellis v. Ellis, 160 Miss. 345, 134 So. 150; Louisville & N. R. Co. v. Cuevas, 162 Miss. 521, 139 So. 397; Chapman v. Copeland, 55 Miss. 476; Russell v. Williams, 168 Miss. 181, 150 So. 528; Pollard v. State, 53 Miss. 410.

In further support of our statement that the error in the instruction was not cured we cite the following authorities which bear, more or less, upon the proposition.

Enghlin v. Pittsburg County R. R. Co., 94 A. L. R. 1180; 14 R. C. L. 775, 776, 777, 813; 17 C. J. 343, 347; Marx v. Berry, 168 So. 61; Burke v. State, 72 Miss. 408, 16 So. 342; Kenton v. State, 31 Miss. 504; Harper v. State, 83 Miss. 402, 35 So. 572; Murphy v. State, 89 Miss. 827, 42 So. 877; Hawthorne v. State, 58 Miss. 778; Josephine v. State, 39 Miss. 647; House v. Fultz, 13 S. & M. 39; Herndon v. Henderson, 41 Miss. 584; Miss. Central R. Co. v. Miller, 40 Miss. 45; I. C. R. Co. v. McGowan, 92 Miss. 603, 46 So. 55; Godfrey v. R. R. Co., 101 Miss. 565; Lbr. Co. v. Dickinson, 125 So. 93; Railroad v. Cornelius, 95 So. 90; R. R. v. Phillips, 12 So. 825; Mahaffey v. Russell, 100 Miss. 122; McNeil v. Bay Springs Bank, 100 Miss. 271; Hinds v. McCullers, 121 Miss. 666, 677; R. R. v. Trotter, 61 Miss. 417; Soloman v. Compress Co., 69 Miss. 319.

The court committed error in overruling the motion of the appellant for a new trial. On the motion for a new trial the appellant presented matters which the court had no opportunity previously to consider, principally the selection of the talesmen on the jury by interested parties. The court at that time also had the opportunity to view the cumulative effect of the errors committed and to review the conviction in the light of the trial as a whole. Upon a consideration of those matters the trial court would have been warranted in and should have granted the appellant a new trial, and it was error to fail so to do.

The verdict of the jury was contrary to the great weight and preponderance of the evidence in that the evidence is not sufficient to sustain a conviction of murder.

The defendant was prejudiced by the fact that the sheriff and his deputy were allowed to summon talesmen jurors and that the said sheriff and his deputy had reasons to be interested in the outcome of the case because of close personal relationship to the parent of the deceased, and that the said deputy habitually advised with the state's attorneys in the selection of jurors for criminal cases.

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

Appellant complains of the instruction defining malice aforethought, which was granted the state. Appellant says this instruction erroneously defined malice aforethought; was on the weight of the evidence; that it improperly limited self-defense to the moment of the killing; that it failed to include therein the phrase that the jury must "believe from the evidence in the case beyond a reasonable doubt." This instruction has been before this court a great number of times, although in most instances the instruction has not been set out verbatim in the opinion. However, this instruction is a verbatim copy of the instruction used in Eaton v. State, 163 Miss. 130, 140 So. 729.

Also see what was said by the court in Huddleston v. State, 134 Miss. 382, 98 So. 839, as sustaining the proposition that malice may be suddenly formed and that no particular time or deliberation is required to make a killing deliberate and malicious.

Williams v. State, 163 Miss. 475, 142 So. 471; Motley v. State, 172 Miss. 148, 159 So. 553; Busby v. State, 177 Miss. 68, 170 So. 140; Johnson v. State, 140 Miss. 889, 105 So. 742.

Appellant refers to certain cases wherein the court has condemned instructions which estop an accused from pleading self-defense on the ground that such instructions limit the right to self-defense to the very instant of the killing. The instruction involved here is not the same character of instruction at all. As stated by Judge Anderson, in the Eaton case, supra, the instruction is primarily a definition of malice aforethought.

Woods v. State, 184 So. 511.

Appellant assigns the action of the court in overruling his motion for a new trial as error. This motion for a new trial raised no...