Tatum v. State
| Decision Date | 08 March 1926 |
| Docket Number | 25460 |
| Citation | 142 Miss. 110,107 So. 418 |
| Court | Mississippi Supreme Court |
| Parties | TATUM v. STATE. [*] |
Suggestion of Error Overruled March 22, 1926.
APPEAL from circuit court of Jones county, first district, HON. R S. HALL, Judge.
Earl Tatum was convicted of murder, and appeals. Affirmed.
Affirmed.
D. B. Cooley, for appellant.
The court erred in giving instruction number one for the state. The error complained of in this instruction is in the use of the word "only" as an adverb to modify the verb "believe." Used in this way the word "only" is synonymous with the words "merely," "barely," "scarcely," and "hardly." See Webster's New International Dictionary. In other words, the jury is told by this instruction that they have scarcely to believe, barely to believe, hardly to believe, or merely to believe the defendant guilty beyond a reasonable doubt in order to convict.
The law is that the state must make out its case to a moral certainty and beyond a reasonable doubt. To merely believe, etc., beyond a reasonable doubt does not mean the same thing as "must believe to a moral certainty and beyond a reasonable doubt." The latter has a much more intense meaning than the former, and requires a greater degree of belief of guilt in order to convict.
It was error to give instruction number two for the state. The instruction is in the following language:
We invite the court's attention to the particular wording of this instruction. No provision is made in this instruction, or in any other instruction given for the state or for the defendant, authorizing the jury to return a verdict against the defendant of manslaughter. This instruction compels the jury to return a verdict of murder or nothing. The giving of this identical instruction was condemned by this court in Matt Allen v. State, 139 Miss. 605, 104 So. 353; and Johnson v. State, 75 Miss. 635, 23 So. 579.
I submit, under the proof in this case, that a manslaughter verdict might properly have been rendered. The granting of this instruction, requiring and compelling, the jury to return a verdict of murder or nothing is reversible error.
The court erred in giving instruction number five for the state. It is assumed in this instruction as a fact that the appellant fled after the killing and remained in hiding, and that the jury is to infer guilt from this fact as a matter of law. It is clearly an instruction on the weight of the evidence, and hence, an invasion of the province of the jury. What weight is to be given testimony and what inferences can be logically deduced from it are questions which, by our law, are to be submitted solely to the judgment of the jury. Maston v. State, 36 So. 70.
J. A. Lauderdale, Assistant Attorney-General, for the state.
I. Instruction number one for the state is sound law and has been approved repeatedly by this court. Miller v. State, 35 So. 690; Pannell v. State, 102 So. 6. The granting of this instruction was assigned as error and strongly urged in the case of Lee Powell v. State, 90 So. 625. However, this court approved this instruction by affirming the case.
II. Instruction number two is not subject to the criticism made of it by counsel for appellant. Reading this instruction as a whole, it tells the jury the various verdicts they may return in the event they find defendant guilty as charged in the indictment. This instruction certainly does not exclude the jury from finding a verdict of guilty of manslaughter any more than it excludes the jury from finding a verdict of not guilty.
In the Allen case, 104 So. 353, the instruction told the jury that: "The court instructs the jury for the state that you may return either of the following verdicts in this case; to-wit: . . ." Then follows the three usual verdicts in case the defendant is found guilty of murder, and then the usual "not guilty" verdict. The court holds in this case that the testimony was such that the jury might have found defendant guilty of manslaughter and that this instruction by presuming to give each and every verdict the jury might render, excluded the jury from the right to bring in a verdict of guilty of manslaughter. In Johnson v. State, 75 So. 635, the final clause of the instruction complained of was as follows: "If, however, the jury agrees upon the guilt of the defendant but fails to agree upon the punishment, it is their duty under the law to return a verdict of guilty as charged." The court reversed this case because it held that the testimony was such as to authorize the jury to return a verdict of manslaughter and that this instruction excluded from them this right.
My contention is that the holding of the court in the two cases last named is not applicable to the instruction in the case at bar. The defendant could have asked for an instruction defining manslaughter and authorizing the jury to return a verdict of guilty of manslaughter just as he did ask for and obtain instructions telling the jury that under certain conditions they might return a verdict of not guilty.
The trial court is powerless to grant an instruction with reference to manslaughter or any other matter in controversy unless requested so to do in writing by one of the parties to the suit. Hays v. State, 130 Miss. 381; McLeod v. State, 130 Miss. 83; Davenport v. State, 121 Miss. 549; Johnson v. State, 106 Miss. 94; Dixon v. State, 106 Miss. 697; Pringle v. State, 108 Miss. 802; Canterbury v. State, 90 Miss. 279; Boykin v. State, 86 Miss. 481; Shubert v. State, 66 Miss. 446; Watkins v. State, 60 Miss. 323.
III. Instruction number five also assigned as error, does not assume as alleged by counsel that defendant fled but required the jury to believe from the evidence that he fled and remained in flight and hiding and that they might take this circumstance, if found to be true, into consideration along with all the other evidence in the case determining the guilt or innocence of the defendant. This instruction is not error and was properly given in this case. Appellant admitted that he fled through the woods to the railroad and left the state, and remained away until apprehended and brought back by the officers to stand trial. Bird v. U.S. 187 U.S. 118; Star v. U.S. 164 U.S. 627; Young v. State, 40 So. 656; Miller v. State, 19 So. 37; Thomas v. State, 18 So. 229.
Appellant was indicted and convicted in the First district of the circuit court of Jones County of the crime of murder and sentenced to the penitentiary for life. From that judgment he prosecutes this appeal.
Appellant, Fred Tingle, the deceased, and others were engaged in gambling when an altercation arose between appellant and deceased during which hot and abusive words were passed between them. As a result of this altercation, the game in which they were engaged broke up, the whole party leaving the house in which the gambling was going on about the same time. A few minutes afterwards appellant and the deceased came together again, when appellant shot the deceased, resulting in his death.
The evidence for the state made out a case of murder, while that for appellant made a case of self-defense. There were several eyewitnesses to the homicide; some, but not all of them, testified, the evidence for the state supporting the charge of murder, while that for appellant that the homicide had been committed in self-defense. In addition, the evidence was such as that the jury would have been justified under the law in returning a verdict of manslaughter. However, no manslaughter instruction was given by the court, neither the state nor appellant requesting such an instruction. The following instruction was given by the court at the request of the state:
Appellant contends that the giving of that instruction was error; that it shut the jury out from returning a manslaughter verdict. To support that contention appellant relies on Allen v. State, 104 So. 353, 139 Miss. 605, and Johnson v. State, 23 So. 579, 75 Miss. 635. In the Allen case the jury were charged by the instruction for the state there in question that if they found the defendant guilty of murder they should return either...
To continue reading
Request your trial
-
Pruitt v. State
... ... authority to give such instruction at his own instance ... Section ... 586, Code of 1930; Gilbert v. State, 78 Miss. 300; ... Johnson v. State, 78 Miss. 627; Canterbury v ... State, 90 Miss. 279; James v. State, 106 Miss ... 353; Dalton v. State, 141 Miss. 841; Tatum v. State, ... 142 Miss. 110 ... The ... testimony of the Williamson woman alone is sufficient not ... only to prove the corpus delicti, but to warrant the ... conviction of the appellant of the crime of murder ... Wellborn ... v. State, 140 Miss. 640; Matthews v ... ...
-
Drummer v. State
...giving this instruction.”); Ransom v. State, 149 Miss. 262, 115 So. 208, 209 (1928) (affirming a flight instruction); Tatum v. State, 142 Miss. 110, 107 So. 418, 419 (1926) (“The instruction embodies a correct principle of law and was applicable to this case under the evidence.”).¶ 23. The ......
-
Cosey v. State
... ... State, 108 Miss. 72, 66 So. 325; Davenport v ... State, 121 Miss. 548, 83 So. 738; McLeod v ... State, 130 Miss. 83, 92 So. 828; Hays v. State, ... 130 Miss. 381; Stevenson v. State, 136 Miss. 22; ... Allen v. State, 139 Miss. 605; Dalton v ... State, 141 Miss. 841; Tatum v. State, 142 Miss ... 110; Davis v. State, 157 Miss. 669 ... Argued ... orally by C. O. Japp, for appellant, and by W. A. Shipman, ... Assistant Attorney-General, for the state ... [161 ... Miss. 751] Ethridge, J ... The ... appellant was ... ...
-
Richardson v. State
... ... case to go to the jury on the sole theory of it being murder ... or nothing," counsel for appellant argue that ... instruction granted at the request of the state is erroneous ... This instruction has been approved by this court in Tatum ... v. State, 142 Miss. 110; and Grady v. State, 144 Miss ... There ... is no evidence that deceased was attempting to unlawfully ... search the defendant. The defendant himself testified and ... stated positively that he either killed the deceased by ... shooting his pistol ... ...