Murphy v. State
| Decision Date | 03 February 1919 |
| Docket Number | 20465 |
| Citation | 80 So. 636,119 Miss. 220 |
| Court | Mississippi Supreme Court |
| Parties | MURPHY v. STATE |
1. CRIMINAL LAW. Instructions. Credibility of witnesses.
An instruction for the state in a criminal case is not reversible error, as being on the weight of evidence, which directs the jury's attention to the situation and location of the witnesses with reference to the scene of the difficulty.
2. CRIMINAL LAW. Instructions. Credibility of accused.
An instruction for the state in a criminal case, that in determining the credibility of witnesses, the notice and interest any witness may have may be considered, does not single out the defendant as a witness in her own behalf where she was not the only witness who testified for the defense, her father having also testified for the defense.
3. CRIMINAL LAW. Instructions. Cured by other instructions.
Even though an instruction for the state may indirectly suggest the interest of the defendant on the point of credibility yet this is not reversible error where the jury reading all the instructions together could have no doubt about their right and duty to consider carefully the testimony of the defendant as a witness in her own behalf.
APPEAL from the circuit court of Stone county, HON. J. H. NEVILLE, Judge.
Ida Murphy was convicted of assault with intent to kill and appeals.
The facts are fully state in the opinion of the court.
Overruled.
Mize & Mize, for appellant.
Counsel for the state cite the case of Vail v. State, 94 Miss. 365, in which it was held that the error of the instruction complained of in that case was cured by one given for the defendant. It further appears that there was another witness to nearly all the material facts of the case. That case is very different from the case at bar. In the instant case, the only witness to the actual facts of the fight, for the defendant, is the defendant herself, the other two testifying to threats previously made only, and their testimony, if believed, would not have entitled the defendant to an acquittal. In the Vail case, the instruction given for the defendant that he was a competent witness in his own behalf was much more elaborate than the one procured by the defendant in the instant case, and in that case there was another witness to all the material facts of the homicide and testified in corroboration of the defendant, but such is not true of the case at bar.
We could cite other cases holding the same effect as those in our original brief, but they were referred to in the cases cited and we have not again cited them, but the line of authorities is unbroken that where the defendant is the only witness to the fact to testify, then it is error reversible to give this instruction. Of course it is true that if there are other witnesses to the actual facts then it is proper to give it as in the Vail case and a number of other cases where there were several witnesses, but not where the defendant is the only witness to the fact. The instruction should further have this clause in it: "If, because thereof you believe such witness or witnesses not entitled to belief."
As before stated this is a close case on the facts, one witness saying it happened in one way and the defendant saying it happened another and these being the only witnesses to the actual difficulties, we respectfully insist that it was fatal error to give the instruction complained of which could have been directed at no other witness by the defendant.
We submit the case should be reversed.
Frank Roberson, Assistant Attorney-General, for the state.
The sole proposition in this case is whether the court erred in giving instruction No. 2 for the state. This instruction is as follows: "The court instructs the jury for the state that you are the sole judge of the weight of the testimony and the credibility of the witnesses and in considering all the evidence in the case, you may take into consideration the situation and location of the witnesses with reference to the scene of the difficulty, the motive each may have for testifying and the interest any witness or witnesses may have in the result of the trial, and if after considering all the evidence, you believe that any witness or witnesses have corruptly, wickedly, and knowingly testified falsely about any material fact in the case you may disregard the testimony of said witness or witnesses altogether."
Counsel for appellant seriously argue that this instruction should not have been given and that the case should be reversed, because it is directed at the defendant and singles out her testimony above that of other witnesses. In support of this proposition, he cites: Smith v. The State, 90 Miss. 111; Gaines v. State, 48 So. 182; Chapman v. The State, 102 Miss. 179; and Piggott v. State, 107 Miss. 552.
Also several other cases. These cases all hold that where the defendant himself is the only witness testifying in his behalf that an instruction such as was given the state in this case was error.
But the case at bar is not that kind of case, for the reason that two other witnesses testified for the defendant other than the appellant herself. These two witnesses, moreover, testified as to certain threats alleged to have been made by Mary Stewart against the appellant, the purpose of the testimony being to show that Mary Stewart was the aggressor rather than the appellant.
The purpose of the instruction complained of clearly shows that it was not intended, nor did it in fact single out the testimony of the appellant.
It may be that the defendant might be included within some phases of this instruction, but, as was said by the court in the case of Vail v. State, 94 Miss. 365, 48 So. 725, "so that it is not true of this case either that the defendant was the only witness testifying in his behalf or that this instruction necessarily pointed to him and him alone."
If it might be said that the instruction complained of, standing alone, was erroneous, the giving of instruction No. 2 for the defendant would cure it of any such error. This instruction is as follows: "The court instructs the jury that the defendant is a competent witness in her own behalf and her testimony is entitled to the same consideration as that of any other witness."
It is elementary that all the instructions in a case are to be taken together in announcing the law of the case. In the light of the facts of this case and the instructions given the state and the one just set out, it seems to me that the instruction complained of was properly given and at the most any error in the giving of the instruction was cured by the instruction given for the appellant. See the case of Vail v. State, supra, wherein the court speaking through Chief Justice WHITFIELD, held that a similar instruction was cured by an instruction given the defendant.
The court will also note that in that case, attention was directed to the fact that the cases cited for the appellant in that case, being the same case as the one cited in the case at bar, were nearly all cases in which the defendant was the only witness in his behalf.
The instruction is also criticised as picking out part of the testimony and directing the jury's attention to that phase of the case. Counsel for appellant complain because the words "with reference to the scene of the difficulty" are used as descriptive in connection with the word "location." This contention is without merit for the reason that if the jury had the right to be instructed as to taking into consideration the location, and counsel admit that this might be done, it is certainly eminently proper for the court to advise the jury as to what location had reference to, and, of course, it means the scene of the difficulty. Moreover, this instruction picks out no part of the testimony at all.
I submit that this case should be affirmed, first because the instruction is proper in this case since two witnesses other than the appellant herself testified for defendant as to the material facts, and second, that any error in the instruction as an abstract proposition was cured in the giving of the instruction for the defendant.
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Reed v. State, 41175
...on the facts other than the defendant himself. Hughey v. State, Miss.1925, 106 So. 361; Thompson v. State, supra; Murphy v. State, 1918, 119 Miss. 220, 80 So. 636. Nor does it exist where the wife of the defendant is his only witness on the merits. Jones v. State, 1923, 130 Miss. 703, 705, ......
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Callas v. State
...v. State, 48 So. 182. It is the contention of the state that none of these decisions are applicable to the case at bar. See Murphy v. State, 119 Miss. 220, 80 So. 636. PACK, J. Appellant was tried and convicted upon a charge of assault and battery with intent to kill and murder Steve Giones......
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Jones v. State
...modified by our court in the cases of Viol v. State, 94 Miss. 365, 48 So. 725; Poole v. State, 100 Miss. 158, 56 So. 184; Murphy v. State, 119 Miss. 220, 80 So. 636. foregoing cases hold that such an instruction is not erroneous where other witnesses than the defendant testify, and to whom ......
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Maxey v. State
...it the jury to convict the defendant must believe the entire state's case. Piggott v. State, 107 Miss. 552, 66 So. 583; Murphy v. State, 119 Miss. 220, 80 So. 636; Hart State (Miss.), 115 So. 887. It was not error to refuse the instruction requested by appellant. Carter v. State, 140 Miss. ......