Robertson v. State

• Decision Date: 08 April 1928
• Docket Number: 27893
• Citation: 121 So. 492,153 Miss. 770
• Court: Mississippi Supreme Court
• Parties: ROBERTSON v. STATE. [*]

121 So. 492

153 Miss. 770

ROBERTSON v. STATE. ^[*]

No. 27893

Supreme Court of Mississippi

April 8, 1928

Division A

1 HOMICIDE. One pointing loaded pistol at another and discharging it by act of culpable negligence, resulting in death, is guilty of manslaughter (Hemingway's Code 1927 sections 809, 1023).

One feloniously pointing and aiming loaded pistol at and towards another and discharging it by an act of culpable negligence resulting in death of person at whom pistol was pointed, is guilty of manslaughter, under Hemingway's Code 1927, section 1023 (Code 1906, section 1244), notwithstanding Hemingway's Code 1927, section 809 (Code 1906, section 1045), specially denounces pointing of gun at another as crime.

2. HOMICIDE. "Culpable negligence," within manslaughter statute, is omission to do something, or doing something, which reasonable prudent person would or would not do (Hemingway's Code 1927, section 1023).

"Culpable negligence," within meaning of Hemingway's Code 1927, section 1023 (Code 1906, section 1244), relating to manslaughter, means omission to do something which reasonable, prudent, and honest man would do, or doing of something which such man would not do, under circumstances surrounding particular case.

3. HOMICIDE. Instruction jury could not convict defendant for manslaughter, but of murder, or nothing, held property refused (Hemingway's Code 1927, section 1023).

In murder prosecution, where there was evidence that defendant pointed loaded pistol at deceased and discharged it by an act of culpable negligence and deceased was shot and killed, instruction that jury could not convict defendant of manslaughter under Hemingway's Code 1927, section 1023 (Code 1906, section 1244), but must convict him of murder, or acquit, held properly refused.

HON. JNO. F. ALLEN, Judge.

APPEAL from circuit court of Carroll county, Second district, HON. JNO. F. ALLEN, Judge.

Kella Robertson was convicted of manslaughter, and he appeals. Affirmed.

Affirmed.

S.E. Turner and E. V. Hughston, for appellant.

There is no element of manslaughter in this record. The state's theory, as shown by its instruction on manslaughter, is that the facts of the case would justify a conviction of intentionally pointing and aiming a gun, under sec. 809, Hem. Code 1927, yet the facts recited in said instruction inform the jury that the intentional pointing and aiming a gun, which results in the killing of another, is manslaughter under sec. 1023, Hem. Code 1927. This is a misconstruction of said section. The intentional pointing and aiming of a gun which causes the death of another person is provided for in the chapter on Crimes and Misdemeanors, which takes it out of the purview of manslaughter, and makes it a separate and distinct offense. The conviction of manslaughter under the facts of this case could not be pleaded to an indictment for the "intentional pointing and aiming of a gun," the pointing and aiming a gun not being a constituent offense to that of murder or manslaughter. Conwell v. State, 128 Miss. 716, 86 So. 76.

J. A. Lauderdale, Assistant Attorney-General, for the state.

The granting of the instructions for the state, and the refusal to grant the instruction requested by the defendant, is the only error urged to reverse this cause. Even though we concede the granting of the manslaughter instruction was error, appellant cannot complain. Price v. State, 152 Miss. 625, 120 So. 751; Taylor v. State, 148 Miss. 715; Blaylock v. State, 148 Miss. 1; Alexander v. State, 145 Miss. 675; Goss v. State, 144 Miss. 420; White v. State, 142 Miss. 484; Stevenson v. State, 136 Miss. 22; Callicoate v. State, 131 Miss. 169.

The defendant stated to the state witness that he pointed his gun at deceased and in some way it was discharged. This brings the case clearly within the provision of sec. 1023, Hem. Code 1927. It was a violation of sec. 809, Hem. Code 1927, for the defendant to point or aim a gun at the deceased. This was certainly culpable negligence, and if he negligently discharged the gun while so pointed and killed deceased, he was guilty of manslaughter. The facts in this case with reference to culpable negligence are much stronger than the facts in Gregory v. State, 152 Miss. 133, 118 So. 906.

OPINION

MCGOWEN, J.

Appellant was tried upon an indictment charging him with murder in killing Ocie Robertson on the fifth of August, 1927. On the trial he was convicted of manslaughter, and sentenced to serve a term of ten years in the state penitentiary.

The homicide occurred at the home of the appellant. Louis Phillips and Lester Robertson testified to the effect that a company of men were in the appellant's home, and that they were scuffling in the hallway, when Ocie scratched appellant on the cheek. Appellant tried to catch Ocie, and, failing to do so, asked Phillips and Carpenter to catch him. A few minutes thereafter appellant, Phillips, and the deceased were in a room together. The appellant secured his pistol, and said he had been itching to shoot Phillips and the deceased, Ocie Robertson; he drew the pistol and pointed it at the witness Phillips, who ran from the room. Immediately the pistol was fired, Phillips returned to the room and found Ocie dead, with a pistol ball in his head, while the appellant was standing there with the pistol in his hand. No one else was in the room at the time the pistol was discharged.

Another witness for the state testified that the deceased told him that they had been scuffling and playing, and in some way Ocie scratched appellant; that they got to scuffling in the room where Ocie was; that appellant's pistol was hanging on the wall; and that the latter secured it, whereupon Phillips ran from the room and pulled the door shut behind him. Then the appellant pointed the pistol at Ocie, and in some way it was fired, killing the latter, who was a nephew. The evidence of the defendant and his witnesses was to the effect that the pistol was discharged in a scuffle over it, killing deceased.

We are asked to reverse the case because of an instruction granted for the state, and an instruction requested on behalf of defendant which, was refused. The two, taken together, raise the same question presented here for decision. The instruction granted for the state is as follows: "The court charges the jury for the state that the involuntary killing of a human being by another person is manslaughter when done by the culpable negligence of such other person without authority of law, and if you believe from all of the evidence in this case beyond a reasonable doubt that the defendant feloniously pointed and aimed a loaded pistol at and towards the deceased, Ocie Robertson, and discharged the same by an act of culpable negligence on the part of the said defendant, and that the said Ocie Robertson was shot and killed as result thereof and without the authority of law, then you will find the defendant guilty of manslaughter."

The following instruction was requested by the defendant and refused by the court: "The court instructs the jury that...