James v. State

• Decision Date: 22 December 1913
• Docket Number: 17,065
• Citation: 106 Miss. 353,63 So. 669
• Court: Mississippi Supreme Court
• Parties: LOCKHART JAMES v. STATE

63 So. 669

106 Miss. 353

LOCKHART JAMES v. STATE

No. 17,065

Supreme Court of Mississippi

December 22, 1913

APPEAL from the circuit court of Leflore county, HON. MONROE MCCLURG, Judge.

Lockhart James was convicted of murder and appeals.

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

Affirmed.

Watkins & Watkins, for appellant.

The jury might well, under the testimony, have convicted the appellant of manslaughter under either section 1236 or 1237 of the Code of 1906. Now, if this is true, the failure of the court below to instruct the jury upon the question of manslaughter was a fatal error. The direct question was presented in Johnson v. State, 75 Miss. 635. On facts very similar to the facts at bar, the court said "A more unsatisfactory case, on the testimony, was perhaps, never presented to an appellate tribunal. There was not a charge given on either side as to manslaughter, and yet, on the proof, we think there might have been properly a verdict of manslaughter. We do not mean to say that a verdict of murder would be improper, on the testimony, if there had been no error of law; but, since a verdict of manslaughter might also be upheld, it was, in the distressingly conflicting state of the evidence, to the last degree important that no error of law should have been committed. The third instruction for the state shut the jury up to a verdict of murder or nothing, and was, on the record reversible error."

This case was referred to and approved in the case of May v State, 89 Miss. 291, wherein the court said: "The jury would have been well warranted in finding a verdict of manslaughter in this case. Indeed, the evidence would not well warrant any more serious finding, yet, there is not an instruction in the case as to manslaughter."

These two cases are conclusive of the case at bar. The testimony of the witness to which we have referred, fully justified, to say the least, the submission of the question of manslaughter to the jury. That being true, it was the duty of the court according to the authorities which we have cited to the court, even without the request of appellant's counsel of its own motion; or at least it was the duty of the prosecuting attorney to request an instruction in writing, from the court, defining manslaughter, and authorizing the jury to so convict if the evidence in their judgment justified such verdict. It is no answer to the argument to say that the appellant's counsel might have asked for the instruction. In the two cases which we have cited to the court no instructions were asked for the appellant, the court recognizing the well-known fact that for a defendant in the trial court to ask for an instruction on manslaughter would be met with the argument that he was begging the jury to convict him of the smaller offense, and common justice requires the state to define the lesser as well as the higher grades of punishment and to give the defendant at bar the benefit thereof. As a matter of fact, in this case the court in effect charged the jury that they could only convict the appellant of murder, as charged in the indictment. It is very likely that under the conflicting testimony in this case, the jury would have returned a verdict of manslaughter if they had been instructed that such verdict was permissible under the law and facts in the case. The facts were close. If the testimony of the appellant and several of his witnesses was true, he was not guilty of any...