Winston v. State

• Decision Date: 02 January 1922
• Docket Number: 21690
• Citation: 127 Miss. 477,90 So. 177
• Court: Mississippi Supreme Court
• Parties: WINSTON v. STATE

90 So. 177

127 Miss. 477

WINSTON v. STATE

No. 21690

Supreme Court of Mississippi

January 2, 1922

October 1921

1. CRIMINAL LAW. Indictment and information. The word "feloniously" carries the idea of unlawful killing objection to indictment's sufficiency must be made by demurrer.

An indictment for murder charging that the defendant "did then and there wilfully, feloniously, and of his malice aforethought kill and murder" the deceased is a good indictment under section 1431, Code of 1906 (section 1187 Hemingway' Code). The word "feloniously carries with it the idea that the killing is unlawful.

2. HOMICIDE. Where deceased struck defendant with a weapon not necessarily dangerous prior to defendant's shooting deceased, verdict for manslaughter held warranted.

Where the defendant and the deceased were engaged in a quarrel, and the deceased struck the defendant in the face with a lamp chimney, whereupon the defendant shot and killed the deceased, the jury were warranted in finding a verdict of guilty of manslaughter, the shooting occurring after the blow, and the lamp chimney not being necessarily a deadly weapon.

3. CRIMINAL LAW. Where state's witness was placed on stand in accused's absence, accused's waiver held authorized by statute.

Where a witness for the state in a homicide case was placed on the stand in the absence of the accused and testified that he knew the defendant and was asked a question intended to elicit flight, but his absence was discovered, and after so discovering such absence the trial judge tendered to the defendant a mistrial unless he should elect to proceed, and the defendant, after a conference with his counsel elected to proceed, and the trial proceeded in accordance with the desire of the defendant, such vaiver is authorized by section 1495, Code of 1906 (section 1253, Hemingway's Code).

HON. W H. POTTER, Judge.

APPEAL from circuit court of Yazoo county, HON. W. H. POTTER, Judge.

Beverly Winston was indicted for murder and convicted of manslaughter and sentenced to a term in the penitentiary, and he appeals. Affirmed.

Affirmed.

Whitehurst & Whitehurst and Wise & Bridgeforth, for appellant.

Omitting the formal part thereof, the indictment reads as follows: "That Beverly Winston in said county, on the 10th day of November A. D. 1919, did then and there wilfully, feloniously, and of his malice aforethought kill and murder Tom Diamond a human being etc.," See 2 Words and Phrases (2 Ed.), 577.

You will note that the crime is not charged as being unlawfully done, therefore, the presumption arises that it must have been lawful. It may seem a little unreasonable that the appellant contends that the word unlawfully, should have been inserted in the indictment, but every homicide is not unlawful, and it is only those that are unlawful that are punished by law. If a man kills another in self defense, then he has a right to kill under our law which does not make that homicide unlawful. It is entirely lawful to kill in some instances and the failure of the indictment to charge it as being unlawfully done is fatal. Jordan v. State, 87 Miss. 170, 39 So. 895; Pitman v. State, 107 Miss. 154, 65 So. 123.

And we might be assailed with the remark that this should have been taken advantage of in the lower court and cannot now be raised for the first time in the supreme court. This also is not the law of our state, sec. 1413, Code 1906, 1163 Hemingway's Code, which provides, that all objections to the form or substance of an indictment, shall be made before verdict, applies only to those cases where the defect is of such a character that the accused may waive it expressly or by silence, therefore, if it is a nullity and describes no offense it is a nullity, and may be objected to at any time; and this error is not one of form, but goes to the very essence of the offense, therefore the indictment is invalid, because in law, it charges no offense against the appellant. Since on account of the absence of this allegation, no crime was charged, an objection thereto can be made for the first time in supreme court, so held by this court speaking through SMITH, C. J. Pitman v. State, 107 Miss. 154, 65 So. 123; also Newcomb v. State, 37 Miss. 383.

The law on this point is well settled, and as this indictment fails to charge that the crime was "unlawfully" done it charges no offense and is bad.

II. The verdict was contrary to the weight of the evidence. Taking the evidence from all angles, it is boiled down to this, from the state's proof, and this section is written upon the state's proof, the appellant did not fire a shot or pull his gun until after he was assaulted and struck in the face with a lamp globe or chimney, which is such a dangerous instrument that it led the appellant to believe that he was about to suffer injury or great bodily harm at the hands of the deceased. It is essential to the crime charged, "with malice aforethought," not only that there should have been a design or intention by Beverly Winston to effect the death of Tom Diamond, but the killing must also have been without any justification. Ellis v. State, 108 Miss. 62, 66 So. 323.

And further it has been held in this state, that a person may even deliberately kill another without guilt if it be in necessary self defense. Johnson v. State, 27 So. 880. All the testimony of the witnesses was to the effect that Beverly Winston fired two shots, one striking Tom Diamond in the breast and the other going wild; and then a doctor was called who did not see the deceased, but answered questions as propounded to him hypothetically by the district attorney. At this stage of the trial, the state rested and the appellant made a motion to the court to exclude the evidence of the state and grant a peremptory instruction for the appellant, which motion was by the court overruled; and therefore, as was shown by the state's proof, that the appellant fired after the attack was made on him by throwing a glass lamp globe in his face he then had the right to shoot and the court committed error in not so instructing the jury. Sides v. State, 96 Miss. 638, 51 So. 465.

The danger to Beverly Winston needed not to have been actual, nor the killing of Tom Diamond unavoidable, to justify the homicide, if he killed at a time he was in danger or reasonably believed himself to be in danger of suffering injury or great bodily harm at the hands of Diamond; then he had the right to kill Diamond. Long v. State, 52 Miss. 23; Bang v. State, 60 Miss, 571; Ingram v. State, 62 Miss. 142; Godwin v. State, 73 Miss. 873; 19 So. 712.

III. The court erred in not ordering a mistrial on account of evidence being taken while defendant was absent from the court.

During the progress of the trial, the accused with the consent of the trial judge, was absent while part of the testimony for the state was taken, and the trial proceeded after an illegal attempt was made to waive his presence; this case falls directly under the courts holding in the Watkins Case, and an unbroken line of decisions prior thereto, even while section 1495, Code of 1906 was in force, and our court well knew of the existence of this statute and did not feel constrained to use it, so that section 26. Constitution 1890, which guarantees the right to appellant to be present at all stages of the case. In such case it is fatal error to proceed with a trial in the absence of the appellant, especially when a material witness was testifying as was the fact in this case. There is a long line of decisions on this score, the later expressions of this court are all in concord. Lee v. State, 101 Miss. 387, 58 So. 7; Doss v. State, 104 Miss. 598, 61 So. 690; Watkins v. State, 110 Miss. 438, 70 So. 457.

The court in the case of Thomas v. State, 117 Miss. 532, does not overrule this line of decisions, but in that case the trial had not begun, the jury was being empaneled, as a case is not on trial until a legal jury has been sworn to try the issue joined. In the long line of decisions the jury was sworn and the absence of the defendant was while a material witness was testifying, while in the Thomas Case, the trial had not yet begun, for a legal jury was not sworn to try the issue. The rule therefore in the Thomas case does not change the law, but becomes reconciled to the general law of the state, after, the jury is sworn, then the trial begins. Sherrod v. State, 93 Miss. 774, 47 So. 554; Watkins v. State, 110 Miss. 438; 70 So. 457.

If this court attempts to hold that the absence of the appellant, with the court's permission, can be waived, then the constitutional guaranty to be confronted by witnesses becomes a nullity.

H. Cassidy Holden, Special Assistant attorney-general, for the state.

It is first contended by the appellant that the indictment was fatally defective in that it failed to charge that the act committed was unlawful. The indictment charges that the defendant "did then and there willfully, feloniously, and of his malice aforethought kill and murder Tom Diamond a human being, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Mississippi." The indictment in the case of Newcomb v. State, 37 Miss. 383, contained the identical language quoted. As in the instant case, the indictment in the Newcomb case was objected to because it failed to charge that the act committed was unlawful. The court, through Justice Handy, in the Newcomb case, refused to reverse because of this defect in the indictment.

This court is thoroughly familiar with section 1187 Hemingway's Code (section 1431, Code of 1906), which reads as follows: "In an indictment for homicide it shall not be necessary to set forth the manner in which or means by which the...