Johnson v. State

• Decision Date: 10 November 1913
• Citation: 106 Miss. 94,63 So. 338
• Court: Mississippi Supreme Court
• Parties: ADA JOHNSON v. STATE

63 So. 338

106 Miss. 94

ADA JOHNSON v. STATE

Supreme Court of Mississippi

November 10, 1913

October 1913

APPEAL from the circuit court of Jones county, HON. PAUL B. JOHNSON Judge.

Ada Johnson was convicted of murder and appeals.

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

Affirmed.

Hardy &amp Arnold, for appellant.

First we submit that the verdict of the jury in this case is an illegal verdict, or rather is no verdict at all. It shows, by a simple reading thereof, that the jury left something not finished and uncompleted. We are aware of the rule that certain parts of a verdict will be treated as surplusage but that is where the verdict of the jury is complete without the additional part sought to be stricken out. Here the jury left unsaid part of what it meant to say. This is a case where the question of the punishment was left to the jury to be fixed by them. By the insertion of the word "or" in the verdict it showed that the jury did not reach an agreement on this question.

The lower court erred in not submitting to the jury the question of the guilt of the appellant of the crime of manslaughter. If the murder be what it is defined by section 1227, Code 1906 to be, then no where does the state furnish any evidence that shows the guilt of the appellant of the crime of murder. "There are no facts disclosed by this record to warrant a jury in finding that appellant acted with a deliberate design to affect the death of the person killed. Rowland v. State, 83 Miss. 483, 35 So. 826.

"Where the necessity to kill does not exist, if the killing be not done in pursuance of a premeditated design to take life, but on a sudden quarrel, it amounts to manslaughter only." Cotton v. State, 31 Miss. 504. No deliberation is shown here. The appellant is shown to have acted to save herself from a beating and choking. She was not guilty of murder. Guest v. State, 96 Miss. 871, 52 So. 211, where the distinction between these two crimes is clearly drawn.

The court in the case at bar limited, by its instructions, the jury to a finding as to one of two things, either guilt of the crime of murder or an acquittal. This was fatal error. The jury under the facts of this case, if authorized to convict of any thing, would most certainly have been justified in finding a verdict of manslaughter but most certainly not of murder.

Johnson v. State, 75 Miss. 635, 23 So. 579, wherein it is said that "the third instruction for the state shut the jury up to a verdict of murder or nothing, and was, on the record reversible error. "The court should have given an instruction submitting to the jury the question of manslaughter. The evidence does not warrant conviction of a greater offense than this and to not have submitted this question to the jury for their determination was fatal error." May v. State, 89 Miss. 291, 42 So. 154. Johnson v. State, 75 Miss. 635, 23 So. 579.

We do not presume that any serious contention will be made that the court did not err in sentencing the appellant for manslaughter. The jury convicted, if it did convict at all, of the crime of murder, the court passed sentence for a conviction of manslaughter and we submit that this was error, and in the state of this record respectfully submit that the appellant is entitled to be discharged entirely.

We next submit that the case should be reversed and remanded for a new trial because the jury was not properly held together and guarded but allowed to separate during the progress of this trial.

Then the appellant was not permitted to be present during a part of her trial. She was in the custody of the sheriff of the county. When court adjourned for dinner one of her attorneys was taken sick and a motion was made to continue or pass the case as set out in the proceedings. She was absent when this motion was made. Her absence was unknown to all parties, both the court, her attorneys and the district attorney. It was without fault on her part. This was during the selection of the jury to try her case. It is true the court discovered her absence before ruling and ordered the motion stricken out, and then when she was present took evidence thereon, that is on the motion, and overruled it. This did not cure the error. She was entitled to be present during the entire progress of the trial. Warfield v. State, 96 Miss. 170, 50 So. 561; Corbin v. State 55 So. 43.

Nothing could be legally done during her absence. This is not an open question in our state. Doss v. State, 61 So. 690; Booker v. State, 81 Miss. 391, 33 So. 221, 95 Am. St. Rep. 474; Sherrod v. State, 93 Miss. 774, 47 So. 554, 20 L. R. A. (N. S.) 509; Warfield v. State, 96 Miss. 170, 50 So. 561; McLendon v. State, 96 Miss. 860, 50 So. 864; Stanlet v. State, 97 Miss. 860, 53 So. 497; Sadler v. State 98 Miss. 401, 53 So. 783; Lee v. State, 101 Miss. 387, 58 So. 7.

Geo. H. Ethridge, assistant attorney-general, for the state.

It is insisted that the verdict of the jury in this case is an illegal verdict because the verdict returned by the jury read substantially as follows: "We, the jury, find the defendant guilty as charged, but cannot agree on the punishment, in which event it would be the duty of the court to sentence the defendant to the penitentiary for life, or."

It is insisted that the verdict is an incomplete verdict and that the jury did not understand the effect of the verdict and that it was not really a legal verdict. The verdict was complete and it is clear, from a reading of the verdict, that the jury understood that the punishment was to be inflicted by the court; that they themselves could not agree what the punishment should be, but even on the testimony of the jurors introduced, they all agreed as to the guilt of the defendant.

The recital of the verdict goes not only to show a verdict of guilty, but it shows that the jury were instructed and wrote that instruction in their verdict, that it was the duty of the court to inflict life punishment in the penitentiary. All after the term given, "We, the jury, find the defendant guilty as charged and cannot agree on the punishment," is surplusage, and no one asked to have the meaning of the jury cleared up at the time the verdict was returned to the court. Temple v. State, 61 So. .

It was next insisted by the appellant that the court committed error in not instructing the jury on manslaughter. It ought to be a sufficient answer on this objection to state to the court that the defendant was represented by a firm of able lawyers, the junior member of which had been practicing in court for a period of thirteen years, and the senior member of the firm is a man who has been long at the bar and noted as a lawyer of much ability. If they desired to have an instruction on manslaughter, they certain would have prepared and presented it to the trial judge, and failing to do so cannot now be complained of as failing to get the benefit of such instruction.

Under our system, the circuit court is not allowed to give instructions to the jury unless they are asked in writing, and if, in a murder case, a defendant thinks the best interest of the defendant is subserved in withholding an application for a manslaughter instruction and they act on that theory, they should not be heard to complain afterwards. The court is not allowed to instruct the jury on its own motion even though the jury ask for such instruction, and it has been held reversible error for the court to give such instructions under such circumstances. Johnson v. State, 78 Miss. 627, 29 So. 515; Gilbert v. State, 78 Miss. 300, 29 So. 477. See, also, section 792 of the Code as to instructions.

It is next contended that the judgment must be reversed because, in the judgment of the court imposing sentence, the judgment recites or uses the word, "manslaughter" instead of "murder" as being the crime when the whole record shows a verdict convicting of murder, and the refusal of the court to set aside the verdict and where...