Stevenson v. State

• Decision Date: 16 June 1924
• Docket Number: 24145
• Citation: 136 Miss. 22,100 So. 525
• Court: Mississippi Supreme Court
• Parties: STEVENSON v. STATE. [*]

100 So. 525

136 Miss. 22

STEVENSON v. STATE. ^[*]

No. 24145

Supreme Court of Mississippi

June 16, 1924

Division B

HOMICIDE. Instruction authorizing conviction of manslaughter held harmless where evidence would authorize conviction of murder.

Where on the trial of a defendant charged with murder, 'the evidence for the state showed that defendant was guilty of murder, while the evidence for the accused showed a case of accidental killing, and the defendant was convicted of manslaughter, an instruction which authorized the jury to convict of manslaughter was harmless error.

CRIMINAL LAW. Failure to give unrequested instruction defining manslaughter not erroneous.

Under Code of 1906, section 793, forbidding the court to grant instructions not asked for, the failure of the court to give an instruction defining manslaughter, where neither party requests it, is not error.

3. HOMICIDE. In prosecution for murder, instruction advising jury of penalty for manslaughter held not reversible error.

Where on the trial of a. defendant charged with murder, the evidence for the state, if believed, made out a clear case of murder, while the evidence for the defendant, if accepted showed an accidental killing, and the defendant was convicted of manslaughter, an instruction which informed the jury that in case of a conviction of manslaughter the court might sentence the "defendant to the penitentiary for a term of years, not to exceed twenty years, was not prejudicial to the rights of the defendant and was not reversible error.

HON. R. L. CORBAN, Judge.

APPEAL from circuit court of Jefferson county, HON. R. L. CORBAN, Judge.

James Stevenson was convicted of manslaughter, and he appeals. Affirmed.

Judgment affirmed.

Truly & Truly, for appellant.

I. There was error in granting any kind of a manslaughter instruction when there was no evidence to justify it. Our court has held in many cases, beginning with Virgil v. State, 63 Miss. 320, that it is reversible error to grant an instruction for manslaughter where the crime is either murder or nothing. The only case in this state holding to the contrary which has come under our observation is the case of Huston v. State, 62 So. 421, which was expressly overruled by the case of Rester v. State, 70 So. 881. See also, Leavell v. State, 92 So. 630; Ealy v. State, 91 So. 417; Hannah v. State, 39 So. 855. This constitutes one class of case; the other class consists of cases in which this court has reversed cases because a manslaughter instruction, under such state of facts, was granted the state. A few of the latter class are: Virgil v. State, 63 Miss. 320; Stovall v. State, 47 So. 479; Parker v. State, 58 So. 978; Walker v. State, 86 So. 337.

II. Next, the instruction complained of does not attempt to define the crime of manslaughter but leaves the definition to the whim or imagination of the jury. It will be noted that in neither of the two instructions granted the State (which were the only ones requested) is there any definition of what constitutes manslaughter. Must a human being, however humble, be left to the whim or caprice of a jury which is instructed "you may find him guilty of manslaughter" and then leave a definition of that crime to the same jury? Green v. State, 37 So. 646; Johnson v. State, 20 So. 515.

These cases settle the law in this state, in our humble opinion, that in any case where a manslaughter instruction is proper, it is absolutely necessary to tell the jury what constitutes that crime.

III. The instruction tells the jury the penalty for manslaughter and only gives part of that. There are at least two cases in our state which state this to be error. Johnson v. State, 29 So. 515, and Ellerbe v. State, 30 So. 57.

F. S. Harmon, Assistant Attorney-General, for the state.

I. Counsel vigorously insists that the fourth paragraph of instruction No. 2, informing the jury that they might find the defendant guilty of manslaughter, constituted reversible error, and it is with this question that the court is here concerned.

Learned counsel cites a number of cases by the Mississippi court upholding his contention, but he failed entirely to refer to the all-important, recent cases of Calicoat v. State and Strickland v. State, 131 Miss. 169, 95 So. 318, decided in 1922 which are conclusive here.

The jury in the case at bar found that the defendant was guilty of an unlawful homicide. They thus rejected his own testimony that the killing was the result of an unfortunate accident. True, they made a mistake which lessens the sentence, but they made no mistake as to finding the defendant guilty of unlawfully killing this woman. Surely he cannot complain where, under the same finding of fact he either would have been hanged or committed to the penitentiary for life if the mistake had not been made. See, also, Powers v. State, 83 Miss. 699.

II. But appellant insists with equal vigor that it was fatal error not to give the jury a definition of manslaughter. Thus he insists on the one hand that it was error to give the manslaughter instruction at all, and then on the other seeks a reversal because still another error was not committed. However, the short answer to appellant's contention is that if he had wanted the jury instructed as to a definition of manslaughter he could have requested such an instruction of the trial judge. Having failed to do so, he should not now be heard to complain. Dickson v. State, 106 Miss. 697, 64 So. 379. Section 793 of the Code of 1906, section 557, Hemingway's Code, forbids the judge to do anything except "at request of either party he shall instruct the jury upon the particulars of law applicable to the cause." If counsel for appellant thought it necessary for the jury to be instructed liberally as to the definition of manslaughter, it was his privilege and right under the statute to request such an instruction in writing. See, also, Railroad Company v. Moore, 101 Miss. 775.

III. Finally, it is insisted that paragraph 4 of this second instruction for the state is erroneous in that it refers to the sentence. Counsel cites Ellerbe v. State, 30 So. 57, where there was an indictment for murder and a conviction of manslaughter, and the court informed the jury that they might find the defendant guilty of manslaughter and added these words: "Under this verdict the court may fine the defendant in any sum not less than five hundred dollars, or imprisonment in the county jail not more than one year or both, or may sentence him to the penitentiary not less than two years." The court held that this clause, above cited, was reversible error, but based its holdings upon the fact that it considered the punishment in its milder form and looked too much like an invitation to compromise. This, in itself is sufficient to distinguish the two cases. In the Ellerbe case the jury was liberally informed as to the minimum verdict. In the case at bar, the jury was casually informed as to the maximum verdict, which could not exceed twenty years. There is quite a difference in the two cases. It is easy to see how a jury would be misled if the court informed them that the punishment may vary from hanging down to the five hundred dollars fine. But here, after specifically setting forth the various verdicts which the jury might return in finding the defendant guilty of murder, the court referred in most general language to the maximum penalty for manslaughter. And since in the average adult a twenty-year sentence is so clearly equivalent in its practical results to a life sentence, the difference between the two is not so extreme and the open invitation to compromise on the lesser offense, which was decisive in the Ellerbe case, is entitled to little consideration here.

OPINION

COOK, J.

The appellant, James Stevenson, was indicted and tried in the circuit court of Jefferson county for murder and was convicted of manslaughter, and sentenced to serve a term of ten years in the state penitentiary, and from this conviction and sentence he prosecuted this appeal.

The appellant shot and killed his wife in their home. Other than the appellant, there was only one eyewitness, the sixteen-year old stepson of the appellant. The testimony of this boy, if believed, makes a clear case of murder, while if the testimony of the appellant is accepted the killing was accidental.

In this state of the record the state secured the following instruction:

"The court instructs the jury for the state that their verdict will be in one of the following forms:

"(1) 'We, the jury, find the defendant guilty as charged.' In this event the court will sentence the defendant to be hanged.

"(2) 'We, the jury, find the defendant guilty as charged and fix the punishment at life imprisonment in the state penitentiary.'

"(3) 'We, the jury, find the defendant guilty as charged, but certify that we cannot agree on the punishment.' In this event the court will sentence the defendant to life imprisonment in the state penitentiary.

"(4) 'We, the jury, find the defendant guilty of manslaughter'--in which event the court will sentence him to serve a term of years in the state penitentiary, not to exceed twenty years.

"(5) 'We, the jury, find the defendant not guilty.'"

The only assignment of error argued by counsel for appellant is directed at the fourth clause of this instruction, the objections to this clause of the instruction being summarized as follows:

"First. Because there is no evidence in the record...