Johnson v. State

• Decision Date: 02 November 1925
• Docket Number: 24930
• Citation: 105 So. 742,140 Miss. 889
• Court: Mississippi Supreme Court
• Parties: JOHNSON v. STATE. [*]

105 So. 742

140 Miss. 889

JOHNSON v. STATE. ^[*]

No. 24930

Supreme Court of Mississippi

November 2, 1925

Division B

1 HOMICIDE. Evidence held to sustain conviction for murder.

Evidence examined, and held sufficient to justify a verdict of guilty of murder.

2. HOMICIDE. To sustain conviction of murder, it is not indispensable that motive be shown.

It is not indispensable that motive be shown in order to sustain a conviction of murder.

3. HOMICIDE. In murder case, use of deadly weapon may justify inference of malice on part of accused.

In a murder case, the use of a deadly weapon may justify the inference of malice on the part of defendant.

4 HOMICIDE. Deliberate design to effect death of another may be formed in instant.

The deliberate design to effect the death of another may be formed in an instant. There is no particular measure of time necessary for its formation.

5 HOMICIDE. Instruction on self-defense in murder case held not error.

The following instruction for the state in a homicide case held not erroneous: "The court instructs the jury that to make a homicide justifiable on the grounds of self-defense, the danger to the slayer must be either actual, present, and urgent, or the slayer must have reasonable grounds to apprehend a design on the part of the deceased to kill him, or do him some great bodily harm, and, in addition to this, that there was imminent danger of such design being accomplished, and hence mere fear, apprehension, or belief, however sincerely entertained by one person that another designs to take his life, will not justify the former in taking the life of the later party. A party may have a lively apprehension that his life is in danger, and believe the grounds of his apprehension just and reasonable and yet he acts at his peril. He is not the final judge; the jury may determine the reasonableness of the grounds upon which he acted."

HON. S. F. DAVIS, Judge.

APPEAL from circuit court of Leflore county, HON. S. F. DAVIS, Judge.

Minnie Johnson was convicted of murder, and she appeals. Affirmed.

Affirmed.

Gardner, Odom & Gardner, for appellant.

Our principal contention is that the verdict of murder is contrary to the law and evidence. The verdict of murder is not supported by the evidence. The essential elements of murder are lacking. The state's proof made out a case of manslaughter, and nothing more. An analysis of the proof will support our contention. There is nowhere in the record a word of positive proof as to malice. The testimony of the state's witnesses, on the other hand, negative such idea and makes out a clear case of manslaughter.

Even though we should admit that malice might be inferred from the previous quarrel, which we do not, before a case of murder could be made, we must find that the testimony of the appellant as to defending herself was a pure fabrication and false, and further, that the state's witnesses testified falsely with reference to the deceased snatching up the cards and taking up the lamp. In other words, to sustain the verdict of murder we must infer that both the appellant's testimony and that of the state's witnesses is at least untrue in their material parts and finally base the verdict of murder? solely upon the inference from the appellant's testimony. By such a process it certainly never could be said by this court that the state had made out a case of murder beyond a very reasonable doubt. The verdict of murder, we respectfully submit, should be based on facts or positive proof, and not on inferences. Pigott v. State, 107 Miss. 552, 65 So. 583.

Instruction No. 4, granted for the state, is confusing, calculated to mislead the jury, does not correctly state the law and should not have been given. It tells the jury that the appellant could not plead self-defense unless the danger was "actual, present and urgent," making no provision for apparent danger. As we understand the law, the accused has as much right to defend himself when the danger is apparent as if same were real, qualified, of course, by the limitation that the danger must be reasonably apparent. Therefore, since the instruction deprives the accused of the right to defend himself from reasonably apparent danger, he is cut off from a substantial right by this instruction. It is true the instruction is qualified by the clause "or the slayer must have reasonable ground to apprehend a design on the part of the deceased to kill him or to do him some great bodily harm." Yet in our judgment this does not cure the defect in the instruction, because the qualifying clause by no means makes it clear that the accused had a right to act on appearances. Such an instruction was condemned in Ingrain v. State, 62 Miss. 142;

Another objection to this instruction is that it tells the jury that in addition to the other qualifications of appellant's right to defend herself, the danger must be imminent. We submit that the danger does not have to be imminent in fact. It is only necessary that it be apparent danger and apparently imminent.

The latter part of the instruction tells the jury that it is the final judge and "may determine the reasonableness of the grounds upon which accused acted." It does not inform the jury that it must determine whether or not the grounds upon which the accused acted were reasonable. It simply says the jury "may." It is thus seen that, by this instruction, the court tells the jury that it is not for the accused to say whether or not the grounds were reasonable, but that the jury "may" say whether or not the grounds were reasonable. In other words, the instruction leaves it uncertain as to how the reasonableness is to be determined. It only states positively that the accused cannot determine this. The instruction fails to give the jury any standard by which it is to determine whether or not the action of the accused was reasonable but such a standard was fixed by our court in Scott v. State, 65 Miss. 297.

The appellant was improperly convicted, the verdict is not supported by the law or the evidence, and, therefore, the case should be reversed and remanded.

J. L. Byrd, assistant attorney-general, for the state.

The record shows sufficient evidence of malice to warrant the finding of the jury. The testimony of the appellant, found in the record at pages 36 and 37, furnishes the motive and the malice. It is not every killing which happens on the spur of the moment that is manslaughter. This court has said that the provocation must be substantial and not merely of fleeting, fancied wrong. Preston v. State, 25 Miss. 383.

The jury in the instant case was fully warranted in finding that the superinducing cause was not present and that the murder was committed without any provocation whatever.

Complaint is made of instruction No. 4, granted to the state. Counsel is frank enough to admit that the same instruction was objected to by him and criticised in the argument of another case heretofore decided by this court, and that the court refused to hold that the instruction was erroneous and did not reverse the case. That case, as we recall it, was the case of John Stucky v. State, affirmed by this court on June 8, 1925. Counsel advances no new argument and cites no authority not heretofore cited and this court having declined to reverse on this instruction in the case above cited, we presume that it will not reverse here. In this case, the lower court merely followed the course approved by the court in the cited case. We submit that the instruction was proper.

OPINION

ANDERSON, J.

Appellant Minnie Johnson, was indicted and convicted in ...