Newell v. State

Decision Date27 January 1975
Docket NumberNo. 48076,48076
Citation308 So.2d 71
PartiesCecil NEWELL, Jr. v. STATE of Mississippi.
CourtMississippi Supreme Court

Travis Buckley, Donald A. Smith, Laurel, for appellant.

A. F. Summer, Atty. Gen., by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.


Cecil Newell, Jr., was indicted with others for assault and battery with intent to kill and murder Currie Davis. He was tried separately and upon conviction was sentenced to seven and one-half years in the state penitentiary. From this action of the Circuit Court of Jones County, Second Judicial District, he appeals.

Currie Davis was beaten and stabbed by several assailants on the evening of March 25, 1973. The state's evidence is that the beating and stabbing were inflicted by Eugene Wallace and Jessie Carpenter, Jr., the appellant's co-indictees. The primary issue in the trial was whether the appellant had supported this assault by holding a rifle on the victim while the battery was being inflicted.

Newell contends that he was prejudiced and thereby deprived of a fair trial because the court (1) unduly restricted his cross-examination, (2) erroneous instructions were granted to the state and (3) a proper instruction of the defendant was refused.

The first contention is that a state witness was not permitted on cross-examination to respond to a question of whether the appellant, Carpenter, and Wallace had ample opportunity to kill Davis had that been their intention. The court determined the query called for a conclusion of the witness and sustained an objection to it. It is now argued that wide latitude is permitted on cross-examination in a criminal case and since the intention to kill is a necessary element of the crime charged, the court improperly curtailed cross-examination in this vital area of evidence.

We are not persuaded. The intention of a party is a fact determination to be made by the jury from the evidence. In arriving at this determination it has the duty to consider the testimony concerning the assault, the surrounding circumstances, including the expressions made by the participants. To permit comment on the subjective intentions of an accused by a witness based on conclusions reached from his observation invades the province of the fact finders. The issue of intent must be decided by the jury from the evidence in the case and not the conclusion of others. Shanklin v. State, 290 So.2d 625 (Miss.1974), and Golden v. State, 223 Miss. 649, 78 So.2d 788 (1955).

Instructions Numbers 4 and 5 of the state were prejudicial, in our opinion, since they define malice aforethought as 'cutting a human being with the deliberate design to effect the death of the person killed. (sic)' This would permit the jury to find the appellant guilty of intent to kill and murder upon a finding that Currie Davis was stabbed. This, of course, overlooks the law that there can be a deliberate design to kill arising in self-defense or in the heat of passion which is not murder, or intent to murder, since it is unaccompanied by malice aforethought. Earl v. State, 168 Miss. 124, 151 So. 172 (1933); Herring v. State, 134 Miss. 505, 99 So. 270 (1924); Lott v. State, 130 Miss. 119, 93 So. 481 (1922); and Thames v. State, 82 Miss. 667, 35 So. 171 (1903). Cf. Toney v. State, 298 So.2d 716 (Miss.1974).

We think Instruction Number 4 for the defendant was properly refused by the trial court. This instruction advises the jury that the state has the burden of proving to a moral certainty and beyond all reasonable doubt every material allegation lain in the indictment. However, this instruction did not advise, nor are there others advising, the jury of the essential elements of the crime charged by the indictment. Therefore, the jury, being uninformed of the elements of the crime, could not be reasonably expected to ascertain the constituents necessary to constitute the 'material allegations' of the indictment. Northcutt v. State, 206 So.2d 824 (Miss.1967); White v. State, 202 So.2d 633 (Miss.1967) and Mabry v. State, 248 Miss. 149, 158 So.2d 688 (1963), wherein we stated:

We hold that it is essential that an instruction shall charge the nature and elements of the offense, instead of referring the jury to the pleadings to ascertain what crime the defendant is alleged to have committed. 248 Miss. at 151, 158 So.2d at 689.

We conclude the court did not err in refusing this instruction.

The net result of the last instruction being refused is that the jury was left uninstructed as to the burden of proof in this criminal case. This fact, augmented by the state's instructions previously commented on, substantially prejudiced the appellant, in our opinion, and requires the cause to be reversed for a new trial. In deference to the trial judge, we note that he offered indulgence of time to the attorneys for corrections or other instructions for proper jury guidance, but neither was forthcoming.

The record portrays a discrepancy in our state's legal procedure that has literally cost thousands of dollars in new trials, untold expenditure of time, docket congestion and prolonged litigation. It points out the inability of a trial judge to instruct a jury as to the applicable law of a case due to legislative enactment and the decisions of this Court. More importantly, and aside from the practical considerations mentioned, this prohibition has been in the past, and now is, an impediment to the administration of justice that can no longer be indulged in courts of constitutional origin and which should not be tolerated in courts otherwise ordained since all share a common purpose-the fair and efficient administration of justice.

By Chapter 61, Section 12, Article 161, Mississippi Code of 1857 (Hutchinson's), trial judges were deprived of their power to instruct juries as to the law of the case. Whether this legislation was the result of a great awakening of the spirit of pure democracy in the state at that time or was the result of a lingering dislike of the tyrannical methods of the King's appointed justices in England, or a combination of both, is presently immaterial though it has historical interest. Hutchinson's Code provides:

No judge, in any case, civil or criminal, shall sum up or comment on the testimony, or charge the jury as to the weight of the evidence; but it shall be lawful for the judge to charge the jury upon the principles of law, applicable to the case, at the request of either party . . .. (Emphasis added.)

This statute, with slight modification, has been reenacted to the present as Section 11-7-155 (civil cause), Mississippi Code Annotated (1972), and Section 99-17-35 1 (criminal cause), Mississippi Code Annotated (1972). The deficiency of the statute is that many times it has permitted a lay jury to decide cases from the evidence without being instructed as to the law. On occasion juries have been left uninstructed due to the oversight, omission or ineptness of attorneys. More frequently, however, it is the result of advocates maneuvering for their client's best advantage since self interest is the motivating factor of the adversary system. Regardless of the reason the fact remains that juries are at times left groping blindly, though honestly, for the law of a case to aid them in arriving at a verdict when their oath requires only that they decide such issues from the evidence. Miss.Code Ann. § 13-5-71 (1972). Similar statutes and their import in other jurisdictions have been condemned and rectified. See Griffith, Charging the Jury, 8 Miss.L.J. 182 (1935), for a history and discussion of the statute.

Our decisions have expressed greater criticism of the statute and cases in recent years. In Jolly v. State, 269 So.2d 650 (Miss.1972), a case reversed for other reasons, we commented:

Even though the trial court cannot give instructions on its own . . . and is under no obligation to modify or correct a defective instruction . . . the lower court must refuse instructions which do not correctly state the principles of law applicable to the facts in a particular case. 269 So.2d at 653.

This points out the incongruity of the situation and that is, if the judge is requested to instruct the jury, he must instruct correctly, but if not requested to instruct, then the jury is left totally uninstructed.

In Duggan v. State, 256 So.2d 511 (Miss.1972), we repeated in reversing the case that no authority exists under our law for the giving of instructions by the court except as requested by the parties in writing:

. . . This case affords another instance of the unsatisfactory condition of Mississippi law with respect to the giving of jury instructions. 256 So.2d at 512.

See also J. C. Penney Co. v. Evans, 172 Miss. 900, 160 So. 779 (1935), where, though affirmed, we stated:

. . . Under section 586, Code of 1930, the trial judge is without the right to instruct the jury on his own initiative, but is restricted to the granting or refusing of instructions requested by the parties litigant, who are not required to request such. Under statutes of this character, the trial judge is without the power to prevent the submission of a case to the jury without instructions, but the practice of counsel in so doing has been condemned, 64 C.J. 821, and in some cases would amount to a breach of duty to the client. 172 Miss. at 907, 160 So. at 781.

Cases of similar import. 2

See also J. C. Penney Co. v. Evans, 172 747, 138 So. 344 (1931); Kress v. Sharp, 156 Miss. 693, 126 So. 650 (1930); Gulf & Ship Island R. Co. v. Simmons, 153 Miss. 327, 121 So. 144 (1929); House v. State, 133 Miss. 675, 98 So. 156 (1923); McLeod v. State, 130 Miss. 83, 92 So. 828 (1922); Davenport v. State, 121 Miss. 548, 83 So. 738 (1920); Jones v. Madison County, 72 Miss. 777, 18 So. 87 (1895); Bangs v. State, 61 Miss. 363 (1883); Watkins v. State, 60 Miss. 323 (1882); Stewart v. State, 50 Miss. 587 (1874); Edwards v. State, 47 Miss. 581 (1873); Wilson v. Kohlheim, 46 Miss. 346 (187...

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