Samuels v. State

• Decision Date: 11 March 1929
• Docket Number: 27355
• Citation: 153 Miss. 381,120 So. 920
• Court: Mississippi Supreme Court
• Parties: SAMUELS et al. v. STATE. [*]

120 So. 920

153 Miss. 381

SAMUELS et al. v. STATE. ^[*]

No. 27355

Supreme Court of Mississippi

March 11, 1929

Division A

Suggestion of Error Overruled March 25, 1929.

APPEAL from circuit court of Panola county, Second district, HON GREEK L. RICE, Judge.

Walter Samuels and another were convicted of manslaughter, and they appeal. Affirmed.

Judgment affirmed.

Herbert M. Fant and R. T. Keyes, for appellants.

The trial court erred in not granting a continuance. Irene Pilcher was an eyewitness to the shooting and a most material witness. She testified at the habeas corpus trial, and was present at the committing trial. This fact attests the importance and value the appellants placed upon her presence and testimony in the trial court. The affidavit for continuance was timely made and in regular and statutory form. Under very similar circumstances and state of facts this court has almost invariably reversed such cases, and upon the authority of the following cases we urge that the judgment must be reversed for the failure of the lower court to grant the continuance. Whit v. State, 85 Miss 208, 37 So. 809; Montgomery v. State, 85 Miss. 330, 37 So. 835; Caldwell v. State, 85 Miss. 283, 37 So. 816; Scott v. State, 80 Miss. 197, 31 So. 710; Walton v. State, 87 Miss. 296, 39 So. 689; Vallm v. State, 96 Miss. 651; Anderson v. State, 50 So. 554; Dobbs v. State, 51 So. 915; Childs v. State, 146 Miss. 794, 112 So. 23. Irene Pilcher was only temporarily out of the jurisdiction of the court. The testimony shows that she had been living in the second district of Panola county, Mississippi. She was a resident citizen of the same. Her father lived there and still lives there. She had gone to Birmingham, Alabama, only about three weeks before the trial. She had gone there to be with her husband who was temporarily employed there as a carpenter. She had left a part of her belongings. She had told her father she wouldn't be gone long. She had gone before and didn't stay long. There is no reason to disbelieve the testimony of her father, Bud Moore, that she would be back to testify at the next term of court. The appellants were given no time to get in touch with Irene Pilcher in Birmingham to procure her presence. They were forced to go to trial within three days after the return of the indictment. It was not until the day of the trial that they knew she would not be present. Undoubtedly the case of the appellants was greatly prejudiced by the absence of Irene Pilcher. Cade v. State, 96 Miss. 434, is directly in point. In reversing that case because of the absence of a witness who was in another state, Judge MAYS speaking for the court said: "It is true that it is shown that the witness is beyond the jurisdiction of the court, and if there had elapsed any sufficient length of time between the return of the indictment and the date of the trial for the defendant to have procured this witness we would not interfere with the court's ruling, but the trial was the second day after the indictment was found, thus giving the defendant no reasonable time to exert himself to procure witness." See, also, Knox v. State, 97 Miss. 523.

In view of the fact that the appellants were forced to excuse Mr. Birdsong by one of their peremptory challenges, all of which were finally exhausted, under the ruling of this court in Logan v. State, 50 Miss. 269; Hubbard v. Rutledge, 57 Miss. 7; Klyce v. State, 79 Miss. 652, 31 So. 339; Fugate v. State, 82 Miss. 189, 33 So. 942; Langston v. State, 129 Miss. 394, 92 So. 554, and others, we shall proceed with our argument on this assignment as if Mr. Birdsong was a member of the trial jury in the case. We feel sure that Mr. Birdsong was honest in his belief that he had formed no opinion, but we submit to this court that no human can hear witnesses testify from the witness stand under their solemn and sacred oath without forming an opinion of some kind one way or the other. We submit further that no man can so disconnect his mind from his ears as to hear sworn testimony and not form some sort of an opinion or impression in regard to it. When Mr. Birdsong heard these witnesses testify for the state and afterwards heard the ruling of the court that the appellants be not allowed bond, he either believed or disbelieved the witnesses whom he heard testify and either thought the magistrates were correct or incorrect in denying appellant's application for bond; whichever he did, he formed an opinion that rendered him wholly incompetent as an impartial juror. Consequently, we are led to the conclusion that Mr. Birdsong had an opinion, formed from hearing the witnesses, as to the guilt or innocence of these appellants, whether he knew it or not.

The state's contention was that the appellants killed the deceased with a deadly weapon, to-wit: a pistol. If they did, they were guilty of murder. However, the appellants' contention was that Sam Griffin killed the deceased and that they (the appellants) did not fire a shot. If they did not, they were guilty of no crime whatsoever. It is a clear case of murder or nothing and the court erred in giving manslaughter instructions. The question for this court to decide now is whether or not this error in the trial court was harmful to the appellants. Most cases of homicide may be divided into two classes, as follows: (1) Those where only the nature and quality of the act are to be determined and (2) those where only the identity of the slayer is to be determined. Rarely ever do we find an instance where both questions are presented at the same time for determination. As we road the various decisions of this court on the question, we understand the rule to be as follows: (1) Where the killing is admitted by the accused and only the nature and quality of the act remain to be determined, a manslaughter instruction is harmless, if the facts are sufficient to support a verdict of guilty of murder. Calicoat-Strickland v. State, 131 Miss. 169, 95 So, 318. (2) Where the killing is denied by the accused, it being a case of murder or nothing, and only the identity of the slayer remains to be determined, a manslaughter instruction is reversible error. Virgil v. State, 63 Miss. 317. (3) Where the killing is murder or nothing and the jury, without any manslaughter instruction from the court, returns a verdict of guilty of manslaughter, it is error on the part of the jury, but in favor of the accused, and therefore harmless. Virgil v. State, supra. This court has stated in a number of cases that giving manslaughter instructions in such cases is error but is usually an error in favor of the appellant of which he cannot complain. Rolls v. State, 52 Miss. 391; Huston v. State, 105 Miss. 414, 62 So. 621; Calicoat-Strickland v. State, 131 Miss. 169, 95 So. 318; Stevenson v. State, 136 Miss. 22, 100 So. 525; White v. State, 142 Miss. 484, 107 So. 755; Goss v. State, 144 Miss. 420, 110 So. 208; Alexander v. State, 110 So. 367, 145 Miss. 675; Barnett v. State, 146 Miss. 893, 112 So. 586; Blalock v. State, 148 Miss. 1, 113 So. 627; Everett v. State, 147 Miss. 570, 113 So. 186; Taylor v. State, 148 Miss. 713, 114 So. 823. The Calicoat-Strickland case, supra, is the last instance we find where this court has gone into the merits of the question and has given a full discussion of the same, the opinions since that case merely citing the Calicoat-Strickland case as its sole authority.

At first glance it might seem that the case at bar is covered by the decision in the Calicoat-Strickland case, and the cases decided under it. However, after a close examination we find that it is not, but is covered completely by the case of Virgil v. State, 63 Miss. 317, wherein the appellant was accused of the murder of an infant by burning a house, and the sole question was whether or not he burned the house. In that case the court said: "It was error to instruct the jury that it might find the defendant guilty of manslaughter. Such an instruction is, ordinarily, free from objection in trials for murder, because it is favorable to the defendant, who may not complain if a more favorable view is taken of his case than the facts justify, but in this case the issue was, who committed the act which caused the death? There could be no difference of opinion as to the grade of the offense of the perpetrator. . . . The just objection to such an instruction in such case is that it compromises the right of the accused to have the jury determine the single question whether or not he is guilty of the act which constituted the crime. The danger from such an instruction is that the jury may take license from it to find a verdict for manslaughter upon testimony on which it would shrink from rendering a verdict of guilty of the higher crime charged. . . . If the evidence in such case does not warrant conviction of the charge of murder, it, of course, does not of manslaughter, for the question is not as to the grade of the offense, but as to the connection of the accused with it, and an instruction as to the grade of the offense, is misleading and harmful." The circumstances in the case at bar are very similar to those in the Virgil case, supra; in the case at bar the sole inquiry is, who is guilty, and there is no room for the inquiry, of what is he guilty, and the trial court committed error prejudicial to the appellants by injecting the latter into the case.

Rufus Creekmore, Assistant Attorney-General, for the state.

Counsel made a motion for a continuance of this case, because of the absence of the defense witness, Irene Pilcher. The testimony on the motion was to the effect that the witness had gone to Birmingham, Alabama, with her husband who was a carpenter and was doing carpenter work there; that when she left she stated that she would be back...