Nelson v. State

• Decision Date: 05 June 1922
• Docket Number: 22243
• Court: Mississippi Supreme Court
• Parties: NELSON v. STATE

92 So. 66

129 Miss. 288

NELSON v. STATE

No. 22243

Supreme Court of Mississippi

June 5, 1922

1 JURY. Court, on voir dire, should not indicate its views on defense of insanity.

In a murder trial, where the defense is insanity, it is error for the court, on the voir dire examination of the jurors, to use any language which is calculated to disparage said defense. On such examination of the jurors, the court should so deport itself as that no juror can surmise the court's views of such defense.

2 JURY. Conduct of the court in examining juror, on voir dire as to defense of insanity, held error.

It is error in the trial court, on the voir dire examination of the jurors in such a case, to use this language: "Now suppose that the evidence should show that the defendant was feeble-minded and not as bright as Woodrow Wilson or some other persons, and further that the defendant knew the difference between moral right and wrong, would you convict him, if the state had proved that he committed the crime regardless of his plea of insanity?" To this question the defendant then and there duly excepted, whereupon the court remarked: "We all have our right to our opinion about the matter." The court also used repeatedly the following language to the proposed jurors in speaking of the defense of insanity: "Now, suppose the defendant sets up insanity as a defense, and he has got a right to, if he wants to. He can interpose any defense he wants to. Will you consider this defense as you would any other?"

3. WITNESSES. Permitting the district attorney to ask witness if he had bought liquor of the defendant on trial for murder held error.

It was error for the court to permit the district attorney, on cross-examination of a witness for the defendant, to ask the witness if he had ever bought any intoxicating liquors from the defendant, because that fact, if proven, would be irrelevant to the issue of the guilt or innocence of the defendant on a charge of murder.

4. CRIMINAL LAW. State's testimony that deceased asked officers for protection against defendant held inadmissible as hearsay and not res gestae.

It was error for the court to admit testimony offered by the state to the effect that, before the homicide the deceased asked the officers of the law to protect him against violence at the hands of the defendant, because such statements by the deceased were not part of the res gestae but hearsay evidence, and come within the rule against such evidence.

5. HOMICIDE. Instruction on insanity held confusing and misleading.

The court gave the following instruction for the state: "The court instructs the jury for the state that you cannot acquit the defendant on his plea of insanity, if you believe from the evidence beyond a reasonable doubt that he killed the deceased without authority of law, and with the deliberate intention of taking his life, and at the time he knew that it was morally wrong so to do, and this is true, even though you may further believe that the defendant was insane and could not control himself and was feeble-minded and was not like an ordinary man." Held, that said instruction, if it embodies a correct statement of the law, is so involved in the language as to be confusing and misleading to the jury, for the jury might, on a casual reading, come to the conclusion that the latter part of the charge is contradictory of the first part.

6. HOMICIDE. Instruction held erroneous as authorizing conviction, without proof of necessary elements beyond a reasonable doubt.

The court instructed the jury for the state as follows: "The court instructs the jury for the state that, under the law, even if you believe from the evidence in the case that the defendant was feeble-minded and could not control himself, had poor judgment, and was not as bright as other men, that it would be your duty to convict him, if he knew the difference between moral right and wrong, if he killed the deceased without authority of law and with the deliberate intention of effecting his death." Held, this instruction was erroneous, because it authorized a conviction at the hands of the jury without the necessary elements of the crime therein set forth, having been proven by the evidence beyond a reasonable doubt.

7. HOMICIDE. Instruction that, if jury found defendant insane, the court must commit him to an insane asylum held error.

It was error for the court to instruct the jury that, if they returned a verdict of guilty of killing the deceased without authority of law, but that, at the time, the defendant did not know right from wrong, and that he had not been restored to reason and was dangerous to the community, it would then be the duty of the court to order the defendant confined to the insane asylum for treatment, until discharged by the authorities of that institution, because, under the law, the disposition which might be made of the defendant after reaching the insane asylum was not proper to be considered by the jury.

8. HOMICIDE. Instruction as to defendant's knowing right from wrong is error, where not fixed as at the time of the alleged crime.

It was error to give an instruction for the state that "insanity cannot be a defense to a criminal charge, if the defendant knows the difference between right and wrong;" because the word "knows" refers to the present, and the law requires that the defendant know the difference between right and wrong at the time of the alleged crime.

9. CRIMINAL LAW. Giving instruction just prior to jury's retiring without affording defendant's counsel opportunity to examine held error.

It was error to give said last above instruction under the following circumstances: After all the evidence was in, and arguments on each side had been concluded and the jury was ready to retire and consider their verdict; said instruction, having been procured from the court by the district attorney and having been written out by him in long hand in the presence of the jury and handed to the court by him in their presence, and by the court marked "Given;" which instruction was thereupon immediately read to the jury, without having been submitted to counsel for the defendant and without giving defendant an opportunity to answer the same by procuring an explanatory instruction from the court.

HON. J. D. FATHEREE, Judge.

APPEAL from circuit court, Lauderdale county, HON. J. D. FATHEREE, Judge.

A. A. Nelson was convicted of murder and sentenced to life imprisonment, and he appeals. Reversed and remanded.

Reversed and remanded.

H. T. Odom, for appellant.

The second error complained of is the conduct of the trial judge. In the case of Green v. State, 53 So. 415, 97 Miss. 834, our court held it to be a matter of common knowledge that jurors as well as officers of the court are very susceptible to the influence of the judge. This court will very probably take judicial notice that much prejudice exists among the laity against the defense of insanity to a charge of murder. This being true, the trial court should with the utmost care, guard its remarks and actions before the jury lest some statement creep into the records, which might disparage this defense in the eyes of the jury to the great prejudice of the defendant on the trial. Collins v. State, 99 Miss. 47, 54 So. 665; Leverett v. State, 112 Miss. 394, 73 So. 273.

The whole trend of the voir dire examination was to influence the proposed jurors against the defendant, and to strongly impress them with the idea that their duty was to convict. Such examination was erroneous, and very prejudicial to the defendant.

And here permit me to direct the court's attention to the fact that the trial court, in line with this voir dire examination referred to above, granted the following instruction for the state:

"4. The court instructs the jury for the state that under the law even if you believe from the evidence in the case that the defendant was feeble minded and could not control himself, was not as bright as other men, that it would be your duty to convict if he knew the difference between moral right and wrong, if he killed the deceased without authority of law and with the deliberate intention of effecting his death."

This instruction while not seemingly as strong as the question put to the jurors by the court on their voir dire examination, yet it reiterates the same idea, and serves to recall to the minds of the jury the prejudicial statements of the court at the beginning of the trial. Hence, the prejudicial effect of the voir dire examination was increased by this instruction, and I most seriously urge that the voir dire examination, together with this instruction on this point should cause a reversal of this case.

Under the third assignment of error I contend that the trial court admitted certain incompetent testimony, which was highly prejudicial to the appellant.

First, over the objection of appellant, court permitted the district attorney to examine witnesses, Ira D. Hawkins, as follows: "Q. Did you ever drink any wine he made? A. I don't recollect whether I did or not. Q. Did you ever drink any of the shinney he made? A. No, sir. Q. You did not? A. No, sir." This line of examination is highly improper, incompetent and calculated to prejudice the jury against appellant.

Second, I complain of the following testimony of Mr. Ed. Mosby: "Q. I will ask you whether or not on the day that Ed Henson was killed, if he came to the justice of the peace court, Mr. Clay's office, and asked for protection against this man Nelson?"

In section 224, 13 R. C. L. under the title of homicide subtopic, conduct, condition and utterances of deceased, we find the following general statement of the law: "What he may have done or said at a time previous to the...