Walker v. State

• Decision Date: 16 May 1927
• Docket Number: 26379
• Citation: 146 Miss. 510,112 So. 673
• Court: Mississippi Supreme Court
• Parties: WALKER v. STATE. [*]

112 So. 673

146 Miss. 510

WALKER v. STATE. ^[*]

No. 26379

Supreme Court of Mississippi

May 16, 1927

Division B

1 HOMICIDE. Instuction, in prosecution for assault and battery with intent to kill, that malice may be inferred by use of deadly weapon held erroneous.

Instruction in prosecution for assault and battery with intent to kill and murder, to effect that malice may be inferred by use of deadly weapon held erroneous, since in order for use of deadly weapon to carry with it inference of malice its use must be deliberate.

2 HOMICIDE. Malice is essential for assault and battery with intent to kill and requires deliberation.

Malice is an essential element of the crime of assault and battery with intent to kill and murder and cannot exist without deliberation.

3. HOMICIDE. Instruction, in prosecution for assault and battery with intent to kill, on inference of malice from deliberate use of deadly weapon held erroneous.

Where in prosecution for assault and battery with intent to kill and murder, all the facts and circumstances attending shooting by defendant were developed by the evidence, instruction relative to malice, being inferred by deliberate use of deadly weapon, held erroneous, since jury should have determined malice from such circumstances and state was not entitled to have its case strengthened by instruction to such effect.

HON. E. J. SIMMONS, Judge.

APPEAL from circuit court of Pike county HON. E. J. SIMMONS, Judge.

Vincie Walker was convicted for assault and battery with intent to kill and murder, and she appeals. Reversed and remanded.

Reversed and remanded.

James A. Wiltshire, for appellant.

Under the evidence, had the prosecuting witness Hillary Garner died, appellant could have been convicted only of manslaughter even if the state's theory is right; and this being true, when the defendant in the court below asked for an instruction, defining manslaughter on the ground that if defendant shot with intent to commit manslaughter and murder, the court should have granted it. Morman v. State, 24 Miss. 54.

This defendant could no more be convicted of assault and battery with intent to kill where the proof showed, if it showed any, intent only to commit manslaughter, then she could be convicted of assault and battery with intent to kill on evidence and proof of an intent to commit rape or some of the other crimes named with murder and manslaughter in section 771, Hemingway's Code.

It is the intent to kill which raises the crime from a misdemeanor to a felony and the only proof of the intent to kill is such as is presumed from the use of a deadly weapon; all the facts and circumstances and the direct proof showed that there was no intent to kill, and, under this state of the case, the presumption or inference of guilt from the use of a deadly weapon would disappear and yield to the proved facts and circumstances. Gillespie v. State, 96 Miss. 859.

Instead of placing the matter in the jury's hand "free from the rule," we were harnessed up with an instruction granted the state as follows: "The court instructs the jury for the state that malice may be inferred by the use of a deadly weapon."

The defendant testified that she shot in self-defense and positively that she did not intend to kill Hillary Garner, but shot at her legs to stop her from coming on her with the knife. In view of the fact that she did not intend to kill her--and her testimony is corroborated by all the physical facts and circumstances of the shooting--it was error for the trial court to grant the instruction in this state of the case. Especially since it leaves out the word "deliberate" before the word "use." Cumberland v. State, 110 Miss. 521; Hollins v. State, 128 Miss. 119; Haley v. State, 106 Miss. 368; Johnson v. State, 136 Miss. at 780.

Juries are prone to attach but little importance to negro testimony at best. This instruction leaves them where they could easily say, and probably did say, in the jury room: "This woman admits she shot her with a deadly weapon; this instruction tells us that we may infer malice from the use of a deadly weapon; and there is nothing left to do but convict her."

Rufus Creekmore, Special Assistant Attorney-General, for the state.

I. Counsel first insists that the court was in error in refusing the instruction requested by the defendant. Morman v. State, 24 Miss. 54, is not authority for the defendant. That case merely held that under an indictment charging assault and battery with intent to kill and murder, the defendant could not be convicted of an assault and battery with intent to commit manslaughter; these two crimes being separate and distinct felonies, for which separate and distinct punishments were imposed.

The court was correct in refusing this instruction, for the reason that under an indictment charging assault and battery with intent to kill and murder, the jury could, if they saw fit, return a verdict of assault and battery. This instruction does not so tell the jury; on the contrary, it tells them that if the facts as set forth in the instruction were found, then the verdict of the jury should be not guilty.

II. Counsel next insists that the court committed error in granting the state the following instruction: "The court instructs the jury for the state that malice may be inferred by the use of a deadly weapon."

Their objection to this instruction seems to be that it is erroneous because it fails to include the word "deliberate" before the word "use." Their argument is that malice can be inferred only from the deliberate use of a deadly weapon; and where self-defense is implied, it is necessary that this word be in the instruction.

The instruction probably would have been more aptly worded had the word "deliberate" been inserted therein, but in this particular case no reversible error had been committed by the exclusion of its from the instruction. In Lamar v. State, 63 Miss. 265, the court discussed at length the practice of giving this instruction on the presumption of malice. Compare Riley v. State, 109 Miss. 286; Cumberland v. State, 110 Miss. 521.

Argued orally by J. J. Cassidy, for appellant, and Rufus Creekmore, Assistant Attorney-General, for the state.

OPINION

ANDERSON, J.

Appellant was indicted and convicted in the circuit court of Pike county of the crime of assault and battery with intent to kill and murder, and sentenced to pay a fine of five hundred dollars and ninety days' imprisonment. From that judgment, she prosecutes this appeal.

Appellant and Hillary Garner, both negro women, lived in the town of Magnolia. At the time of the alleged crime, appellant was conducting a restaurant and cold drink stand in the negro quarters of the town. On July...