Johnson v. State

• Decision Date: 07 February 1921
• Docket Number: 21521
• Court: Mississippi Supreme Court
• Parties: JOHNSON v. STATE

86 So. 863

124 Miss. 429

JOHNSON v. STATE

No. 21521

Supreme Court of Mississippi

February 7, 1921

1. CRIMINAL LAW. Instructions not supported by evidence erroneous. Instructions which are not supported by the evidence should not be given.

2 HOMICIDE. Instruction authorizing conviction of manslaughter if killing result of simple negligence held erroneous.

In a prosecution for homicide, an instruction which authorizes a conviction of manslaughter if the killing was the result of the simple negligence of defendant while he was attempting to commit a felony is erroneous when the statute upon which the prosecution is based predicates criminality upon culpable negligence, and not upon simple negligence.

HON. J W. T. FALKNER, JR., Judge.

APPEAL from circuit court of Marshall county, HON. J. W. T. FALKNER JR., Judge.

Matry Johnson was convicted of manslaughter, and he appeals. Reversed and remanded.

Cause reversed and remanded.

L. A Smith, for appellant.

The defendant, it is true, was violating the law in that he had a pistol in his pocket and was shooting craps. Both of these offenses were not malum per se but only Malum prohibitum, and our court has held in the case of Dixon v. State, 61 So. 423, that an accidental killing while the slayer was armed, and in that case, undeniably shooting the pistol while drunk, even though the slayer at the time was engaged in misdemeanors, was not manslaughter. In the course of that decision the court very pertinently comments as follows: "It is possible, that had the victim, instead of the defendant, fired her pistol upon the highway (and this is the worst feature of this case from a legal standpoint) and had the defendant received the pistol bullet in his brain, all of us would have found ourselves sympathizing with her, rather than demanding her punishment. And in the instant case suppose the grand jury had indicted Wallace Wall for manslaughter, on the theory that he was culpably negligent to trying to seize Matry Johnson we would be sympathizing with him for becoming involved in trouble for doing what his judgment took to be right. The books have records of such cases. See Adams v. State, 65 Ind. 565. It is submitted that Wallace Wall had as much to do with the killing of June Johnson as did the appellant, except that appellant had the pistol in his pocket, from which it fell when Wallace Wall seized appellant.

In the Dixon case, supra, the court quoted the rule in cases like the one at bar correctly, which is as follows: "When a man, in the execution of one act, by misfortune, or chance, and not designedly, does another act, for which, if he had wilfully committed it, he would be liable to be punished in that case, if the act he was doing was lawful, or merely malum prohibitum, he shall not be punished for the act arising from the misfortune or a chance; but if malum in se it is otherwise. The court further says that the principles involved in the case are not new but run through all the books, and to cite authorities is unnecessary.

Let us examine the instant case in the light of the law as announced and approved in the Dixon case, supra. At most, there are just two hypotheses on which argument can be based that the pistol in the possession of appellant made the death of his brother manslaughter. The first is that the appellant was breaking the law by being engaged in a crap game and by carrying the pistol. But the courts say that both these misdemeanors being malum prohibitum, the mere commission of them is not controlling. So that we may dismiss that theory at once, without further consideration, because Dixon was likewise carrying a pistol, was also drunk, and was also shooting recklessly on the highway, and the bullet he shot glanced and hit the deceased young lady. What a close parallel there is to that case and the one at bar. Here, the appellant was shooting craps, was carrying a pistol, which he did not shoot, but which fell and went off and the bullet glanced and killed his brother. There is no proof whatever to show he was shooting recklessly, except a faint and ridiculous intimation to that effect by the prosecuting witness, who was contradicted by every other witness, without exception who saw what occurred.

The second hypothesis is that he was attempting to draw the pistol in order to shoot Marion Horton, the prosecuting witness. But not a single witness says he was trying to shoot Marion Horton, except Robert Sanders, who stated that he did not see the episode, and only turned around from his task of fire building after the shot had bee fired. Even Marion Horton himself denies that appellant was shooting at him.

The statute under which this indictment was brought is the statute against murder; the statute under which the indictment became the conviction of a charge against appellant was section 1244, Mississippi Code 1906, as follows: "Every other killing of a human being, by the act, procurement or culpable negligence of another, and without authority of law, not provided for in this chapter, shall be manslaughter. Or, if it was not that section, it was section 1236 of the same Code, as follows: "The killing of a human being, without malice, in heat of passion, but in a cruel or unusual manner, without authority of law, and not in necessary self-defense, shall be manslaughter." Or, if it was not that section, then it was section 1237 of the same Code, as follows: "Every person who shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any unlawful act, or after such attempt shall have failed, shall be guilty of manslaughter."

On the first section quoted, supra, 1244, the court granted to the state instruction No. 1. Having granted that instruction, the court had no right to grant any other instructions to the jury defining manslaughter in a way inconsistent with instruction No. 1, because section 1244, on which the charge is based specifically provides that "every other killing of a human being by the act, procurement or culpable negligence of another not provided for in this chapter, shall be manslaughter." In other words, all other instructions defining manslaughter necessarily conflict with this definition and the effect is to make the jury feel that they had to get the defendant coming or going. There was no escape. This charge and this statute are the only reasonable bases to presume to be the foundation of the prosecution, yet there are other charges given entirely inconsistent with this one, and not supported by a scintilla of evidence. Charge No. 5 granted the state is a companion charge to this one and evidently based on the same section of the Code, yet that charge tells the jury if the defendant was guilty of negligence in the handling of his pistol, etc., the jury should find the defendant guilty of manslaughter. The statute says the negligence must be culpable negligence, yet the court told the jury that mere negligence was only necessary, which denied to the defendant the right of self-defense by proving that even if negligent he was not culpably negligent. There is a vast deal of difference between culpable negligence and mere negligence and to instruct the jury that mere negligence in handling his pistol would justify a conviction, conceivably misled the jury to the prejudice of the defendant. This error alone should reverse the case. The court should furthermore have instructed the jury that the negligence must be culpable, and that they had a right to decide as to whether the killing was a pure accident or not, and not negligence at all, and the omission to thus instruct the jury was prejudicial error. Fitzgerald v. State, 20 So. 966.

The instruction asked by the state must be based on the testimony if grantable at all, and surely it cannot be contended that the court granted defendant a fair trial when practically every definition of manslaughter, even remotely hinting at an inferential similarity of appearance with the facts in this case, was granted against defendant. Evidence could not be found to support them all because they are inconsistent. Appellant could not be guilty of effecting the death of deceased, without design, while culpably negligent in the handling of a pistol, and at the same time and by the same acts and circumstances be guilty of killing the deceased without malice in the heat of passion in a cruel and unusual manner, not in necessary self-defense with a dangerous weapon. This is the language of charge No. 2 granted the state. Of course, the killing of the deceased was in an usual manner, so unusual that there is no counterpart of the case in the law books, exactly. But surely that unusualness is not sufficient to justify the conviction of appellant, and surely there must be design behind the unusualness especially as it is coupled with the adjective cruel, because cruelty evinces a depraved and inhuman design. Design is inconsistent with culpable negligence. Appellant certainly had no way of escape from the labyrinth, and the jury could not furnish him a cord to guide him, as they themselves were lost in a maze of cross-roads, and conflicting guide posts, and naturally went estray. It was easy for them to reach the conclusion that the court meant the appellant to be convicted by some rule of law and if it did not exactly fit the case, then take all of them and make a hodge-podge and convict the defendant anyhow.

To further confuse the jury and absolutely close all avenues or justifiable acquittals of appellant, the court granted instruction No. 3 to the state, which told them that if they did not believe appellant killed deceased negligently or if they did not believe that appellant killed deceased in the heat of passion in a cruel and inhuman...