Taylor v. State

• Citation: 148 Miss. 713,114 So. 823
• Decision Date: 12 December 1927
• Docket Number: 26714
• Court: United States State Supreme Court of Mississippi
• Parties: TAYLOR v. STATE. [*]

114 So. 823

148 Miss. 713

TAYLOR v. STATE. ^[*]

No. 26714

Supreme Court of Mississippi

December 12, 1927

APPEAL from circuit court of Rankin county.

(In Banc.)

CRIMINAL LAW. Defendant, convicted of manslaughter, on evidence which would sustain conviction for murder, cannot complain of giving of manslaughter instruction at state's instance.

In murder prosecution, where defense offered was an alibi and defendant was convicted of manslaughter, defendant could not complain of giving of manslaughter instruction at instance of state, where evidence would have sustained verdict of guilty of murder but not manslaughter.

HON. G E. WILSON, Judge.

HON. G E. WILSON, Judge.

Jim Taylor was convicted of manslaughter, and he appeals. Affirmed.

Judgment affirmed.

E. W Patrick, for appellant.

The court erred in granting the manslaughter instruction for the state. The general rule of law is announced in the case of Calicoat v. State, 131 Miss. 169, 95 So. 318. But there is another rule of law equally well founded, and thoroughly sustained by this court and which this court in the Calicoat case expressly held, that the Calicoat case, was not in conflict with. That rule of law is announced in Virgil v. State, 63 Miss. 317.

The only question was as to the identity of the party who did the shooting, and who killed Willie Brown the deceased. The manslaughter instruction asked for by the state, and granted to the state, was not an instruction on the issue before the jury, which was, who did the shooting? But it was an instruction as to the nature, grade or quality of the act, when the sole question was, what were the connections the defendant had with it? The evil effect of an instruction for the state that the jury may find the defendant guilty of manslaughter, is, that the jury may take license to find him guilty of manslaughter, upon testimony on which they would be unwilling to find the defendant guilty of murder. The jury has never passed upon the issue joined, as to whether or not the defendant was the party who committed the murder.

J. A. Lauderdale, Assistant Attorney-General, for the state.

Since Calicoat v. State, 131 Miss. 169, this court has consistently held that in cases where the proof for the state makes a case of not guilty, that the granting of a manslaughter instruction by the trial court is not prejudicial to the rights of the defendant. Strickland v. State, 131 Miss. 169; Stevenson v. State, 136 Miss. 22; White v. State, 142 Miss. 484, 107 So. 755; Goss. v. State, 144 Miss. 420, 110 So. 208; Alexander v. State, 145 Miss. 675, 110 So. 368; Blalock v. State, 148 Miss. 1, 113 So. 627.

Counsel for appellant contends that the ruling of the court in the above-styled causes applied only where the defense interposed by the defendant is self-defense. However, he is mistaken in this contention. In Stevenson v. State, supra, the defendant claimed that he accidentally killed the deceased. The testimony for the state made a case of murder. The court held that a manslaughter instruction was not prejudicial to the rights of the appellant, even though the jury returned a verdict of guilty of manslaughter.

OPINION

COOK, J.

The appellant, Jim Taylor, was indicted and tried for murder, and was convicted of manslaughter, and sentenced to serve a term of five years in the penitentiary, and from this conviction and sentence he prosecuted this appeal.

The deceased was shot at a negro picnic at Boone Lake near Brandon, in Rankin county. Two eyewitnesses testified that the appellant shot the deceased, and the testimony for the state, if believed, makes a case of deliberate and unprovoked murder. The defense offered was an alibi; several witnesses testifying that the appellant was not at the picnic at the time of the shooting.

At the request of the state, the court granted an instruction defining manslaughter, and authorizing the jury to return a verdict of manslaughter. The granting of this instruction is the basis of the only assignment of error that is argued by counsel, and in support of this assignment he relies upon the case of Virgil v. State, 63 Miss. 317.

In the case of Calicoat v. State, 131 Miss. 169, 95 So. 318, this court held that, where a person is slain by the defendant, and the slaying is admitted, but the defense is self-defense, then, on an indictment for murder, and a conviction of manslaughter, where the testimony would sustain a verdict of guilty of murder, and where there are no elements of manslaughter involved, the granting of a manslaughter instruction is harmless error, of which the defendant cannot complain, and in so holding overruled the case of Rester v. State, 110 Miss. 689, 70 So. 881, and other cases in line with the doctrine of the Rester case.

The Calicoat case, however, did not overrule the Virgil case, as it was expressly stated therein that:

"This opinion is in no wise conflicting with the opinion of the court in the case of Virgil v. State, 63 Miss. 317. In the Virgil case the indictment was for the murder of an infant by burning a house (arson). The sole issue in that case was the identity of the guilty party. The Virgil case in no wise attempted to modify or overrule the Rolls case, 52 Miss. 391, which is in accord with this opinion."

In the Virgil case the defendant was indicted for the murder of an infant who was burned to death in a house which was consumed by fire, and the question controverted in the evidence adduced at the trial was whether the accused fired the house, the burning of which caused the death of the infant, and the court there held that:

"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 not be any difference of opinion as to the grade of the offense of the perpetrator. It was an atrocious murder, and, while a verdict of guilty of manslaughter given by a jury, without instruction in such case,...