Smith v. State

• Decision Date: 22 June 1914
• Docket Number: 17424
• Citation: 65 So. 498,107 Miss. 574
• Court: Mississippi Supreme Court
• Parties: DAVID SMITH v. STATE

65 So. 498

107 Miss. 574

DAVID SMITH v. STATE

No. 17424

Supreme Court of Mississippi

June 22, 1914

APPEAL from the circuit court of Tishomingo county. HON. CLAUDE CLAYTON, Judge.

David Smith was convicted of murder and appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Bennett & Elledge, for appellant.

Referring to the third assignment of error which is that the court erred in giving the fifth instruction given for the state the last paragraph of which reads as follows: Or they may return, if warranted by the testimony, the following verdict "We the jury find the defendant not guilty." We do not understand that the jury should be warranted by the testimony in order to acquit. They may acquit for the lack of testimony or evidence. Is a defendant required to prove his innocence? We submit that the instruction amounts to informing the jury that the defendant is required to meet testimony, whether sufficient to convict or not, before they would be warranted in bringing in a verdict of not guilty.

It may be urged that the error in this instruction, if any, was and is cured by instructions for the defendant. We contend that the instruction is such that it is fatal error to give it and no amount of instructions for the defendant could cure the error. Who is in a position to say that under all the circumstances in this case the defendant was not prejudiced by this instruction when the defendant staked his case on a conviction as charged or an outright acquittal? The defendant was either guilty as charged or he was entirely innocent. Refering now to the fourth and all subsequent assignments of error, all of which go to the form and sufficiency of the verdict--to the contention that no verdict has been rendered in this case.

A jury verdict is one thing, while the language used to convey that verdict into court is quite another thing; the jury verdict is the meeting of the minds of twelve jurors, on the issue presented to them by the parties, in the light of the law as given them by the court in instructions; the language used by the jury is but the vehicle for conveying the verdict to the court. The jury in this case returned into court the following: "We, the jury, find the defendant guilty as charged but disagree as to the punishment and ask the mercies of the court." The jury in this case was instructed that: The court charges the jury for the state that they may return either of the following verdicts in this case if warranted by the testimony: First: "We, the jury, find the defendant guilty as charged" in which event it will be the duty of the court to sentence the defendant to be hanged. Second: "We, the jury, find the defendant guilty as charged but disagree as to the punishment." In which event it will be the duty of the court to sentence the defendant to the penitentiary for his natural life. Third "We, the jury, find the defendant guilty as charged" and fix his punishment at imprisonment in the penitentiary for life. In which event it will be the duty of the court to sentence the defendant to the state penitentiary for his natural life.

In the face of the second and third paragraphs of this charge, can it be said that the jury in this case found by their verdict that this defendant should be sentenced to the pentitentiary for his natural life? The jury in this case was thoroughly instructed as to the form of their verdict and the consequent penalties that would follow the bringing in of either of said verdicts, and in view of this fact we insist that the recommendation to mercy cannot be treated as surplusage.

Under the circumstances of this case and the aforesaid instructions, paragraphs two and three, we think that, as a matter of fact, the jury never reached a verdict and never returned a verdict into court. The concurrence of the minds of twelve jurors is necessary to a verdict and the defendant is entitled to this or to a mistrial. As stated in some of the cases the verdict is vague, ambiguous and clouded. Smith v. State, 75 Miss. 556, 558; Owens v State, 82 Miss. 25, 30; Avant v. State, 88 Miss. 227; Sykes v. State, 92 Miss. 250.

The trial court, in this case, treated the recommendation to mercy as surplusage and entered it accordingly; this appears to be the course taken by the trial court in the Owens case cited above. In the light of this record and the above cases this verdict cannot be lightly passed over; we cite the Sykes case above and we note that the court states in its opinion in that case that the trial court erred in not requiring the verdict cleared up and that it (the supreme court) "would not be willing to reverse for this error alone." The language of the court here will have to be passed as dictum; to say the least of it, it cannot be said that the court, in the Sykes case, intended to allow more latitude in the matter of the verdict of a jury in a criminal case; the law and the reasons for the law in the Smith case, the Owens case and the Avant case, goes back to our definition of a jury verdict given above and until the jury do agree in this manner, there is no verdict.

Geo. H. Ethridge, for appellee.

It is insisted that the fifth instruction for the state was erroneous for the reason that it tells the jury that they may return a verdict of not guilty if warranted by the testimony. The instruction is in the form of a verdict, and the jury are told that they may return either of the following verdicts if warranted by the testimony--this embraces a finding of guilty as charged, guilty as charged with a disagreement as to the punishment, guilty as charged with the fixing of the punishment at imprisonment for life, and guilty of manslaughter, or finding of not guilty.

While it is true that a verdict of not guilty can be predicated on the absence of a sufficient amount of evidence, yet the evidence of the case warrants the instruction of not guilty where the evidence is insufficient. The verdict that a jury may return under the law must, in any case, be reached from a consideration of the evidence in the case. The consideration of the evidence in the case must, on account of the absence of a sufficient amount of probative or positive evidence, warrant a discharge. In a case, however, where several different verdicts may be rendered according as the jury may believe from the evidence is right and proper, it cannot be said that the jury can find arbitrarily on any of the different hypotheses. The jury must always be governed by the testimony. It is their duty to acquit when the testimony is not sufficient to convince the mind beyond a reasonable doubt that the hypothesis of guilt is established. In construing instructions in a case, the court looks at the entire instructions, both for the state and the defense and they are construed together, one as limiting, explaining or modifying another. If the jury are told, in the instructions, that they may reach a verdict of acquittal because of a want of testimony, the defendant has gotten the benefit of all rights under the law.

In instruction two for the defendant, the jury are expressly told that if any member of the jury has a reasonable doubt of the guilt of the defendant arising out of the evidence or the want of evidence, it is the duty of the jury to acquit. In instruction three, the same information is given the jury that if there is a reasonable doubt from the lack of evidence, that they should acquit the defendant. The same is in instructions four, five, seven, and thirteen, and the jury are fully instructed in the case that a lack of evidence to convict made it their duty to acquit. There could be no possible reason to believe that the jury were misled upon this point. The hypothesis of manslaughter was given in two instructions for the state and any prejudice growing out of any of the other instructions that would have eliminated manslaughter are expressly cured by these instructions where manslaughter was defined and the jury are told that if the evidence warrants a verdict of manslaughter under such definition that they could so find.

It is next insisted that the verdict of the jury is insufficient to support the...