Johnson v. State

Decision Date25 February 1901
CourtMississippi Supreme Court
PartiesJACOB JOHNSON v. STATE OF MISSISSIPPI

FROM the circuit court of Adams county. HON. JEFFERSON TRULY Judge.

Johnson appellant, having been indicted and convicted of murder appealed to the supreme court. The opinion states the case.

Affirmed.

A. H. Geisenberger, for appellant.

In the case of Walton v. State, 57 Miss. 533, the court say, on page 534, that they think the lower court erred in refusing the instruction to the jury informing them that in case they failed to affix to the crime the punishment for life in the penitentiary, that it was the duty of the court to impose on the. accused the penalty of death. And in an elaborate and well considered opinion the court gives in detail the reasons for the opinion that the error was made by the trial court, and all the reasons alleged in that case will apply with strong force to the case at bar.

The peremptory nature of the charge given the jury for the state directed them to find the verdict "guilty as charged," if they believed the defendant guilty, without giving them any instructions or guidance as to the right to fix the penalty at less than death. Of course, if no instruction on the subject had been asked of the court, as has been held in the case of Penn v. State, 62 Miss. 450, a conviction will not be reversed because such an instruction had not been given. But here the instruction was asked by defendant and refused by the court for no reason that the appellant can see, and no instruction given in lieu thereof informing the jury of their right and the law of the case.

Monroe McClurg, attorney-general, for appellee.

Appellant is before this court without a single meritorious controversy. Omnia praesumuntur rite esse acta. Phillips' case, 57 Miss. 357; Spivey's case, 58 Miss. 743; Hunt's case, 61 Miss. 577; Lea's case, 64 Miss. 201; Code 1892, §§ 732, 4370; Watkins' case, 60 Miss. 323; Bang's case, 61 Miss. 363. After appellant's instruction as to the form of the verdict had been refused, evidently because it did not announce the law, it was his right to inquire of the court what the objection was, and to present another properly stating the law. There is no merit in his contention that because he requested an erroneous instruction that the court without further request should have instructed the jury as to the form of the verdict. Penn's case 62 Miss. 450, is conclusive of this proposition. Evidently the instruction requested and refused in Walton's case, 57 Miss. 533, was properly drawn.

OPINION

CALHOON, J.

Jacob Johnson was convicted of the murder of Ella Johnson, and sentenced to death. It was a murder without any pretense of justification, excuse or alleviation. The man and the woman bad lived for a number of years in adulterous cohabitation, with occasional separations. On the last breach the woman had left him. He persistently hunted her up. In his diabolical and revengeful pursuit, he saw one Robert Kaiser, inquired of him whether the perpetrator of a recent murder had been arrested, and said he was going to kill somebody, and not a man, but a woman. An hour or so before he did the killing he informed one Sam Martin that he was going to kill some one. About half after five o'clock in the afternoon, after hunting for her all day, he found her, seized her by the left arm and shot her twice with a pistol, killing her almost instantly, and then left, and was arrested some ten days afterwards in Louisiana, to which state he had fled. All this is undisputed.

The district attorney wisely asked but one instruction, and it was wholly unobjectionable on the facts, though we think it wiser always to add the words, "and not in...

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21 cases
  • Pruitt v. State
    • United States
    • Mississippi Supreme Court
    • March 7, 1932
    ...was without authority to give such instruction at his own instance. Section 586, Code of 1930; Gilbert v. State, 78 Miss. 300; Johnson v. State, 78 Miss. 627; Canterbury State, 90 Miss. 279; James v. State, 106 Miss. 353; Dalton v. State, 141 Miss. 841; Tatum v. State, 142 Miss. 110. The te......
  • Calicoat v. State
    • United States
    • Mississippi Supreme Court
    • February 19, 1923
    ...on a trial for murder is prejudicial to the defendant, we find in the following authorities: Virgil v. State, 63 Miss. 317; Johnson v. State, 78 Miss. 627, 29 So. 515; Stovall v. State, 94 Miss. 373, 47 So. Hannah v. State, 80 Miss. 375, 39 So. 855; Parker v. State, 102 Miss. 113, 48 So. 92......
  • Vance v. State
    • United States
    • Mississippi Supreme Court
    • September 12, 1938
    ... ... to express to the jury its own conviction that the killing ... was done in a cruel and unusual manner. Such an instruction, ... besides assuming facts not proven, is clearly on the weight ... of the evidence ... Klyce ... v. State, 78 Miss. 450; Johnson v. State, 78 Miss ... 627, 29 So. 515 ... This ... instruction also fails to advise the jury as to the quantum ... of proof necessary to a conviction of manslaughter ... Walters ... v. State, 176 Miss. 790; Jones v. State, 84 Miss ... 194, 36 So. 243 ... ...
  • McLeod v. State
    • United States
    • Mississippi Supreme Court
    • July 10, 1922
    ... ... 724 ... Where ... the evidence in the prosecution for homicide does not warrant ... conviction of a greater offense than manslaughter, the court ... must instruct as to manslaughter though not requested so to ... do. May v. State, 89 Miss. 291, 42 So. 164; ... Johnson v. State, 23 So. 579; McDonald v ... State, 78 Miss. 369, 29 So. 171; Gamlin v. State, 29 So ... The ... defendant in this case requested the lower court to charge ... the jury to find him not guilty of murder, but this the lower ... court refused to do. We submit that the ... ...
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