Patterson v. State
| Decision Date | 04 February 1974 |
| Docket Number | No. 47680,47680 |
| Citation | 289 So.2d 685 |
| Parties | Leslie S. PATTERSON v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
J. A. White, Durant, for appellant.
A. F. Summer, Atty. Gen., by T. E. Childs, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
Leslie (also known as Lessie) Patterson, appellant, appeals from the Circuit Court of Holmes County, Mississippi, in which court he was convicted of the crime of murder. He was sentenced to serve the remainder of his life in the Mississippi State Penitentiary. We reverse.
By grand jury indictment appellant was charged with the murder of one Ratcliff on November 23, 1972. Erroneous instructions require that appellant be granted a new trial and a detailed statement of the facts is therefore unnecessary. Appellant's admitted shooting and killing of Ratcliff was apparently the result of his disapproval of the situation wherein Ratcliff had become the object of the affections of Mary Ann, appellant's alleged wife. The triangular affair ended in appellant's own residence where the killing occurred after appellant entered unannounced following a trip to another state. Appellant's trial strategy was in the main based upon a theory of self-defense. The state's case was that appellant unnecessarily shot and killed the deceased. Upon conflicting testimony the jury found appellant guilty as charged and without reciting the evidence, we point out that the verdict was amply supported by the proof. Likewise, the jury, by accepting his version, could have acquitted appellant but did not choose to do so.
Appellant says that the trial court should have limited the jury to a consideration of manslaughter and excluded from the jury any consideration of the crime of murder. He bases his contention in this regard upon an oral motion made by him at the conclusion of the state's evidence, and upon his requested jury instruction (peremptory) number one which the court declined to give. In neither the motion nor the instruction was there any language that mentioned the crime or charge of manslaughter. Should the appellant have desired that the court restrict the jury to a consideration of manslaughter only, he should have said so in specific language in his oral motion or, in the alternative, he should have requested a jury instruction advising the jury that they could consider only a verdict of manslaughter. Absent a request for a manslaughter instruction, a trial court will not be put in reversible error for not instructing the jury on manslaughter. Sexton v. State, 274 So.2d 658 (Miss.1973).
Next, complaint is made by appellant of the action of the trial court in granting the instructions numbered three and five for the state. In the case of Berry v. State, 288 So.2d 457, decided January 14, 1974, this Court followed the rule that objection to instructions cannot be made for the first time on appeal as is attempted in the case before us. The record does not show that any objection was made in the trial court and therefore the complaint of appellant is not reached here. Jones v. State, 279 So.2d 594 (Miss.1973); Gaines v. State, 272 So.2d 919 (Miss.1973); Malley v. State, 271 So.2d 448 (Miss.1973); Clark v. State, 260 So.2d 445 (Miss.1972); Miss.Sup.Ct.Rule 42.
Since this case will be for retrial, it is appropriate to point out that the state's instruction number three should be revised to include the element of malice aforethought if the jury issue of murder is submitted to the jury. The state's instruction number five, without defining 'malice aforethought,' indicates that this element does not have to exist for any given length of time provided it existed 'at the very moment the fatal shot was fired.' (Emphasis added.) There appears to be some confusion as to this instruction but we point out at this time that any such instruction should make it clear to the jury that 'malice aforethought' must pre-exist the infliction of a mortal wound in a murder case.
It is reversible error to give an instruction in such cases which contains language to the effect that malice aforethought may exist at the very instant that a fatal shot is discharged if an objection is made to the instruction. Nicholson v. State, 243 So.2d 552 (Miss.1971); Dobbins v. State, 207 So.2d 96 (Miss.1968...
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Ballenger v. State
...Ballenger relies on two cases dealing with malice aforethought. See Windham v. State, 520 So.2d 123, 126 (Miss.1987); Patterson v. State, 289 So.2d 685, 686 (Miss.1974). She also points out that both Mac and Ritter testified that while planning the robbery it was agreed that Ellis should no......
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Harrison v. State, 57898
...element of murder, and serves to distinguish murder from manslaughter. Taylor v. State, 452 So.2d 441, 443 (Miss.1984); Patterson v. State, 289 So.2d 685, 687 (Miss.1974). Malice may be established expressly or impliedly from the evidence. Motley v. Smith, 172 Miss. 148, 152, 159 So. 553, 5......
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Williams v. State, 95-CT-01199-SCT.
...Toney v. State, 298 So.2d 716, 719-20 (Miss.1974) (same); Pittman v. State, 297 So.2d 888, 893 (Miss. 1974) (same); Patterson v. State, 289 So.2d 685, 686 (Miss.1974) ("at the very moment the fatal shot was fired"); McDonald v. State, 78 Miss. 369, 375, 29 So. 171, 172 (1901) ("existed but ......
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Blanks v. State, 58318
...Toney v. State, 298 So.2d 716, 719-20 (Miss.1974) (same); Pittman v. State, 297 So.2d 888, 893 (Miss.1974) (same); Patterson v. State, 289 So.2d 685, 686 (Miss.1974) ("at the very moment the fatal shot was fired"); McDonald v. State, 78 Miss. 369, 375, 29 So. 171, 172 (1901) ("existed but a......