Reed v. State, 41175

• Decision Date: 08 June 1959
• Docket Number: No. 41175,41175
• Citation: 237 Miss. 23,112 So.2d 533
• Parties: John L. REED v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 533

112 So.2d 533

237 Miss. 23

John L. REED v. STATE of Mississippi.

No. 41175.

Supreme Court of Mississippi.

June 8, 1959.

J. W. Kellum, Sumner, for appellant.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., for appellee.

ETHRIDGE, Justice.

Appellant, John L. Reed, was convicted, in the Circuit Court of Lowndes County of assault and battery with intent to kill Mahlon Vickery, Chief of Police of the City of Columbus, and was sentenced to serve five years in the state penitentiary. The jury was amply warranted in finding, as it evidently did, that he was guilty of a willful assault and battery upon Chief Vickery with an intent to kill him. Vickery was in his office unarmed when Reed, a policeman, shot him several times with a pistol. Appellant concedes there was 'ample testimony to warrant the jury in finding the appellant guilty.' In fact, the overwhelming weight of the evidence supports the jury's finding of guilt.

The State obtained eight and the defendant twenty-five instructions. The latter fully set forth his version of self-defense and the law with reference to his rights. His principal assignment of error is directed to Instruction Number 1 given the State: 'The Court instructs the jury for the State that you are the sole judges of the credibility of the witnesses who testify in this case, and in determining what weight you should give the testimony of any witness, you have the right to consider their demeanor upon the witness stand; what interest, if any, they have in the results of the trial, if it has been shown by the evidence they have any, and all other facts and circumstances in the evidence in this case.'

Appellant contends it was reversible error to give this instruction. He was the only witness in his defense on the facts of the case. He also offered six character witnesses as to his general reputation in the community for peaceableness. Appellant argues Number 1 was reversible error, because it directed the jury's attention to his interest in the result of the trial and commented by inference on his testimony. He relies upon a line of cases holding such an instruction to be error where defendant is the only witness in his behalf on the facts. Buckley v. State, 1885, 62 Miss. 705; Woods v. State, 1890, 67 Miss. 575, 7 So. 495; Townsend v. State, Miss.1892, 12 So. 209; Smith v. State, 1907, 90 Miss. 111, 43 So. 465; Gaines v. State, Miss. 1909, 48 So. 182; Chatman v. State, 1912, 102 Miss. 179, 59 So. 8; Pigott v. State, 1914, 107 Miss. 552, 65 So. 583; Jones v. State, 1929, 154 Miss. 640, 122 So. 760; Thompson v. State, 1930, 158 Miss. 121, 130 So. 112; State v. Jennings, Miss.1951, 50 So.2d 352. The condemnation of this instruction does not apply where there are witnesses for defendant 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, 94 So. 851. However, since appellant was his only witness on the facts, we think it was error for the trial court to give State's Instruction No. 1, but that the error was harmless and non-prejudicial.

Defendant obtained 25 instructions setting forth in full his defenses and theories. In several of his instructions, particularly Number 22, attention was called to his testimony. Defendant's Instruction Number 22 states: 'The court instructs the jury for the defendant that the law makes the defendant a competent witness for himself, and permits him to testify in his own behalf, and his testimony you cannot arbitrarily, under your oath, disregard, simply because he is the defendant in the case; but it is your duty to consider Reed's testimony, as you consider the testimony of any other witness in this case, and, if you have no other reason to disbelieve him as a witness than the fact that he is the defendant in the case, then it is your sworn duty to believe him, and believe that he spoke the truth, and it is sufficient, in connection with the other testimony in this case, to raise in your minds a reasonable doubt of his guilt, then you should find him not guilty, and the form of such a verdict may be: 'We, The Jury, Find The Defendant Not Guilty."

In the foregoing instruction defendant called attention to his own testimony, and by clear implication referred to his own interest in the case as not warranting disbelief in him as a witness; and if there is no other reason to disbelieve him than 'the fact that he is the defendant in the case, then it is your sworn duty to believe him, and believe that he spoke the truth, * * *' This latter, quoted part of Number 22 was clearly more than appellant was entitled to and has been condemned. Coleman v. State, Miss.1945, 22 So.2d 410; see also Dunbar v. State, 1931, 159 Miss. 603, 132 So. 748, 85 A.L.R. 520. Defendant's Instruction Number 4 told the jury it was the sole and only judge of the weight and worth of the testimony of the witnesses. His Number 8 called attention to his testimony and said, 'all that is required of the defendant is that he, by his testimony, raise a reasonable doubt * * *' as to guilt. His Instruction Number 13 states: 'The court instructs the jury for the defendant that, under the law, he is a competent witness in his own behalf, and that you have no right to disbelieve him merely because he is the defendant, and his testimony is entitled to such weight, faith, and credit as you may think proper to give it.'

In view of the instructions granted defendant, and particularly Number 22, it is manifest that the jury was amply instructed on all points pertinent to the defense, and his Number 22 cured whatever error there might have been in State's Instruction Number 1. The former, at appellant's own request, directed the jury to consider Reed's testimony as that of any other witness, and not to arbitrarily ignore him, 'simply because he is the defendant in the case.' At his own instance, appellant called to the attention of the jury his interest in the case. So the argument that State's Instruction Number 1, in general terms, impliedly called to the jury's attention his interest in the result, is to say the least anomalous, and an inconsistent position by defendant. We will not reverse the trial court for an error created by the defendant's own instruction. Two earlier cases hold to the same effect on this precise issue.

In Vails v. State, 1908, 94 Miss. 365, 48 So. 725, 726, the defendant was convicted of manslaughter. He claimed self-defense. The State was granted an instruction similar to Number 1 for the State in this case. The Court said that it 'must be taken in connection with' an instruction given defendant similar to Reed's Number 22. The opinion said: 'We remark, first, that if there was any error in this fourth instruction given for the state on this point, it was certainly cured by the eighth instruction, just above set out, given for the defendant on the same point. It would be difficult, indeed, to frame an instruction on this point more favorable to the defendant than this said eighth instruction is.' As a second reason, the opinion in Vails noted there was another witness for the defense in addition to appellant. But the Court based its decision on both of the stated reasons; the curative instruction theory is part of the ratio decidendi of the case.

This interpretation was confirmed subsequently in Matthews v. State, 1914, 108 Miss. 72, 78, 66 So. 325. Defendant was convicted of murder, and was the only witness in his behalf on the facts. The State obtained an instruction somewhat similar to the State's Number 1, and apparently defendant obtained one substantially similar to Reed's Number 22. To appellant's complaint concerning the State's instruction, this response was made: 'The ground of this objection is that appellant was the only witness who testified in his behalf on the material points of the case, and therefore the instruction was necessarily aimed at his testimony. If the court committed error in granting this instruction, it was cured by the first paragraph of the first instruction granted appellant. Vails v. State, 94 Miss. 365, 48 So. 725.' See also Murphy v. State, 1918, 119 Miss. 220, 228, 80 So. 636; Callas v. State, 1928, 151 Miss. 617, 630, 118 So. 447; Hoxie v. Hadad, 1943, 193 Miss. 896, 899-901, 11 So.2d 693; 1 Alexander, Miss. Jury Instructions (1953), Sections 1641, 1642; 2 Alexander, Ibid, Sections 4973, 4992. Hence we conclude that State's Instruction Number 1, although erroneously given, is not reversible error, but was entirely harmless and non-prejudicial, under the circumstances, and was cured by Reed's Instruction Number 22.

In addition, it is a well settled rule of appellate review, both at common law and under Rule 11 of this Court, that a judgment will not be reversed on the ground of misdirection to the jury, 'unless it shall affirmatively appear, from the whole record, that such judgment has resulted in a miscarriage of justice.' Clearly the latter contingency cannot exist here. The overwhelming weight of the evidence reflects appellant's guilt. An impartial jury, duly mindful of the obligations of their oaths, could not reach a different result. Brown v. Addington, Miss.1958, 102 So.2d 365; Annotations, 29 Miss.L.J. 381-385 (1958). So for both of these reasons, the judgment of the circuit court is affirmed.

Affirmed.

McGEHEE, C. J., and LEE, KYLE, ARRINGTON and GILLESPIE, JJ., concur.

HALL, Justice (dissenting).

With deference I am impelled to dissent from the conclusion of the majority in this case and I do so not because I think the appellant is innocent but because I think that the decision of the Court has the effect of repealing Sec. 1691, Code of 1942, which is as follows: 'The accused shall be a competent witness for himself in any prosecution for...