Smith v. State
| Citation | 572 So.2d 847 |
| Decision Date | 24 October 1990 |
| Docket Number | No. 07-KA-59241,07-KA-59241 |
| Parties | Arthur James SMITH v. STATE of Mississippi. |
| Court | United States State Supreme Court of Mississippi |
F. Holt Montgomery, Jr., Pass Christian, James F. Thompson, Gulfport, for appellant.
Mike C. Moore, Atty. Gen., John R. Henry, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
Before HAWKINS, P.J., and SULLIVAN and PITTMAN, JJ..
Arthur James Smith appeals his conviction in the circuit court of the First Judicial District of Harrison County under a two-count indictment of murder and aggravated assault.
Because Smith has not brought before this Court relevant portions of the trial record, we do not consider his assignment of error to the granting of State instructions. We likewise find his complaint as to the refusal of his instruction without merit, and affirm.
The grand jury of the First Judicial District of Harrison County on July 16, 1987, indicted Arthur James Smith on two counts: murder of Deborah Kelly and aggravated assault with a deadly weapon, a handgun, upon Varanda Falconer. Following a trial he was found guilty on both counts and sentenced to life imprisonment for murder and 20 years for aggravated assault, the sentences to run consecutively. The judgment of conviction was signed and entered November 4, 1987. Motions for new trial and reduction of sentence were overruled and Smith has appealed.
The record on appeal does not contain any transcription of the State's case-in-chief. It contains the direct and cross-examination of Smith and Diane Spencer, a defense witness, and the testimony of Lisa Kilpatrick and James Middleton, rebuttal witnesses for the State.
It does not contain any of the trial proceedings wherein the instructions were considered and rulings made by the circuit judge.
Smith has three assignments of error, all dealing with either the granting or refusal of instructions. We do not consider his second assignment complaining of two instructions granted the State, because there is nothing in the record showing Smith objected to them at trial. Martin v. State, 354 So.2d 1114, 1118 (Miss.1978).
Smith's first assignment complains of the court's refusal of defense Instructions D-2 and D-11:
JURY INSTRUCTION D-2
The killing of a human being is justifiable when committed by any person in resisting any attempt unlawfully to kill such person or to commit any felony upon him.
If you find from the evidence in this case that the killing of Deborah Kelly on March 11, 1987, was committed by Defendant in resisting an attempt unlawfully to kill him or commit a felony upon him, then you shall find Defendant Arthur James Smith not guilty of all charges, and shall so state by your verdict.
The Court instructs the jury that if you find from the evidence in this case that the Defendant Arthur James Smith killed Deborah Kelly by accident and misfortune in doing a lawful act with ordinary caution, or in the heat of passion with sudden and sufficient provocation, then you shall find Defendant Arthur James Smith not guilty of the crime of murder or of any lesser included offense concerning the death of Deborah Kelly.
The jury was amply instructed that before they could convict Smith the State had to prove the act was done "not in necessary self-defense." There is nothing in the record supporting his claim that Smith killed Kelly "by accident or misfortune in doing a lawful act with ordinary caution," and the remainder of the instruction is not a correct statement of the law. Moreover, the jury was fully and correctly instructed on manslaughter in the heat of passion. In reviewing error in the granting or refusal of instructions, this Court looks at all instructions, and if the jury was fairly, fully and accurately instructed on the law governing the facts of the case, failure to give a requested instruction not ground for reversal. Peel v. Gulf Transport Co., 252 Miss. 797, 174 So.2d 377 (1965); City of Meridian v. King, 194 Miss. 162, 11 So.2d 205, sugg. of error o'ruled 11 So.2d 830 (1943).
Smith's third assignment argues the failure of the court to grant Instruction D-7:
JURY INSTRUCTION D-7
The Court instructs the jury that no person may be convicted upon...
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