Long v. State

• Decision Date: 09 May 1932
• Docket Number: 29884
• Citation: 163 Miss. 535,141 So. 591
• Court: Mississippi Supreme Court
• Parties: LONG v. STATE

141 So. 591

163 Miss. 535

LONG v. STATE

No. 29884

Supreme Court of Mississippi, Division B

May 9, 1932

(Division B.)

1 HOMICIDE.

Evidence sustained verdict of manslaughter.

2. HOMICIDE. Where accused unlawfully pointed pistol at deceased who was killed as result, court properly refused to submit accidental killing to jury (Code 1930, section 989).

Court properly refused to submit question of accidental killing to jury, because where accused unlawfully pointed pistol at deceased, who was killed as a result thereof, accused was guilty at least of manslaughter, whether pistol was intentionally discharged or not.

3 HOMICIDE.

Voluntary drunkenness is no defense to crime of manslaughter.

4. CRIMINAL LAW.

Admitting sheriff's testimony that after killing accused said he did not want to talk then because he was too drunk held not reversible error, as forcing defendant to testify against himself.

5. CRIMINAL LAW. District attorney's statement to jury that in his judgment accused was guilty of manslaughter held not error, where there was evidence of malice and no evidence of innocence.

There was evidence from which jury could infer legal malice, it not being necessary that there be actually a willful intent to make a killing murder, since if one deliberately kills another, or with knowledge of its probable consequences intentionally does an act that results in death of another he does it with "malice aforethought."

6 JURY.

Formal affidavit that accused's counsel had no knowledge of juror's relation to attorney for state and that they would have challenged juror for cause if they had, or testimony under oath, is essential to present matter.

7 JURY.

That juror was first cousin of attorney for state was not legal disqualification.

8. CRIMINAL LAW.

Denial of mistrial because of juror's relation to state's attorney held not error, where accused was clearly guilty of manslaughter, of which he was convicted.

9. CRIMINAL LAW.

Accused cannot complain of conflict in instructions due to erroneous instruction which he procured court to give.

10. HOMICIDE. Where accused was charged with murder and manslaughter, instruction to acquit, unless accused intentionally killed deceased, should not have been given.

Instruction should not have been given, because, even if accused's mind was so impaired by intoxication that he could not form specific intent, the proof showed that he had unlawfully pointed pistol at deceased, which resulted in killing, and that accused was guilty at least of manslaughter.

HON. S. F. DAVIS, Judge.

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

J. J. Long, Jr., was convicted of manslaughter, and he appeals. Affirmed.

Affirmed.

Osborn & Witty, and Gardner, Odom & Gardner, all of Greenwood, for appellant.

The district attorney, over the vigorous objection of defendant, was allowed by the court to prove that Long told the sheriff that morning, while Long was in custody, that he, Long, "had rather not talk about it." After this objection of defendant was overruled, the district attorney was allowed to repeat his question and obtain the same answer from the sheriff.

This was an error of the lower court, most injurious to the defendant's case. Furthermore, it was a clear cut violation of defendant's constitutional right not to be required to give evidence against himself. Defendant was not required, under the law to tell the sheriff what had occurred, and on the other hand, was guaranteed by the constitution the right to refrain from doing so. The purpose of this testimony, which was brought out by the district attorney was, of course, unquestionably, to prejudice defendant before the jury by raising the inference that when defendant declined to talk, he was impliedly admitting his guilt, and such an inference, that certainly was the only inference the district attorney sought to raise, and did raise, must have been harmful to defendant in the eyes of the jury.

The failure of the accused in any case to testify shall not operate to his prejudice, or be commented upon by counsel.

Section 1530, Code of 1930.

For the district attorney to prove by this witness of high standing and great influence that Long declined to talk out of court was probably more harmful to Long's case than would have been the district attorney's comment upon Long's failure to testify on the trial, if Long had so failed to testify.

This character of evidence, erroneously admitted, has been emphatically condemned by this court.

Bunkley v. State, 77 Miss. 540, 270 So. 638; Boyd v. State, 84 Miss. 414, 36 So. 525.

There are many authorities in other states which lay down a rule of law analogous to the principal for which we here contend.

Merriweather v. Commonwealth, 118 Ky. 870, 4 A. & E. Ann. Cas. 1039; Towrey v. State, 163 P. A. C. 331, L.R.A. 1917D; People v. Smith, 172 N.Y. 210, 64 N.E. 814; State v. Carter, 106 La. 407, 30 So. 895; State v. Diskin, 44 Am. Rep. 448; Commonwealth v. McDermot, 123 Mass. 440, 25 Am. Rep. 120.

Another reversible error committed by the court was in allowing the district attorney, during the closing argument, over the objection of the defendant, to make the following statement to the jury.

My deliberate judgment is that the defendant is guilty of manslaughter, if you take everything the defendant says as true.

This statement of the district attorney was objected to because it gave his opinion, or his judgment as to the guilt or innocence of defendant, and this was improper and constituted reversible error.

State v. Mack, 14 So. 141; State v. Iverson, 68 So. 98; State v. Harper, 78 So. 845.

It is improper to give to the jury conflicting instructions, even though one of them may announce the law correctly. Such instructions leave it to the jury to determine which of two contrary rules they will follow.

Southern Railroad Co. v. Kendrick, 40 Miss. 374; L. & N. R. Co. v. Cuevas, 139 So. 397; R. C. L. Vol. 14, page 777; Id . Sec. 45; Id . Sec. 38; Bluedorn v. Missouri Pac. R. Co., 32 A. S. R. 615; Meyer v. Hafemeister, 100 A. S. R. 900; 18 Ann. Cas. 166; 97 A. S. R. 393; 15 L.R.A. (N.S.) 1109; 131 A. S. R. 709; 24 L.R.A. (N.S.) 1185; 45 A. S. R. 859; 64 A. S. R. 322; 32 A. S. R. 615; 23 A. S. R. 465; Ann. Cas. 1913D 674; 33 A. S. R. 249; 101 A. S. R. 579; 66 A. S. R. 450.

The court below refused to grant the following instruction requested by appellant:

The court further instructs the jury for the defendant that, if, after considering all the evidence in this case, there arises in their minds a reasonable doubt as to whether the deceased was killed intentionally by the defendant or by accident, they will promptly find the defendant not guilty.

The court will notice that this instruction which was refused, is based upon the idea that this unfortunate occurrence happened by accident. In other words, it was accidental, certainly not intentional.

Means Johnston and Richard Denman, both of Greenwood, for the state.

There is not a scintilla of evidence in the record that the deceased was killed by accident. The testimony in this case as shown by this record shows that the defendant had made a proposition on two different occasions with Miss Ingram to go to the bedroom with him prior to the difficulty, and it further shows without contradiction that about forty-five minutes before the killing he made a proposition to the other young lady.

The defendant, by the testimony of his witnesses to the effect that the defendant was drunk, that he was incapable of knowing what he was doing at the time of the killing, raised the issue of manslaughter, and if the instruction had been granted the jury could not have considered the issue of manslaughter.

Robertson v. State, 153 Miss. 770, 121 So. 492.

Appellant does not contend that the state introduced any such statement incriminating the defendant in his presence over their objection, for no such thing was done, and all of the authorities cited by appellant on this proposition have no application to the facts of the case at bar.

The question was asked the sheriff on cross-examination and was perfectly right and proper for the purpose of testing the relevancy of the testimony of the sheriff concerning the defendant's condition, intending to show that he knew what he was doing, notwithstanding the sheriff had testified he was drunk, but regardless of that fact, the sheriff testified that he was not even certain that the defendant made such answer, and he certainly could not have materially injured the substantial rights of the defendant in the trial of his case, and if error was inconsequential error.

The statement of the district attorney complained of shows on its face that it was not an expression of his private opinion independently of the testimony, but that it was his judgment that defendant was guilty of manslaughter providing you believe everything the defendant said was true. He had a perfect right to comment on the testimony given by the defendant and to draw conclusions therefrom.

State v. Mack, 14 So. 149; Show v. State, 103 Miss. 640, 60 So. 726.

State's counsel in argument may comment on evidence and deduce inference therefrom and point out witness by name.

Callas v. State, 151 Miss. 617, 118 So. 447.

Prosecuting attorneys may comment upon evidence and draw such conclusions therefrom as they think proper.

Blackwell v. State; Faulk v. State, 59 So. 225; Dunn v. State, 99 So. 154; Griggs v. State, 109 So. 611.

It has been held that the district attorney should be allowed considerable latitude in arguing his case to the jury.

155 Miss. 629, 125 So. 115.

Counsel for appellant say that the trial court tells the jury in six instructions for the state that they can...