Woodward v. State

• Decision Date: 17 October 1932
• Docket Number: 30090
• Citation: 143 So. 859,166 Miss. 596
• Court: Mississippi Supreme Court
• Parties: WOODWARD v. STATE

143 So. 859

166 Miss. 596

WOODWARD v. STATE

No. 30090

Supreme Court of Mississippi

October 17, 1932

APPEAL from circuit court of Humphreys county.

(In Banc.)

1. HOMICIDE. In prosecution for murder committed during robbery of store, instruction regarding conspiracy to commit felony if erroneous as authorizing conviction of murder of absent cocon-spirator when conspiracy was merely to commit larceny held Instruction in substance that where two or more persons conspire to commit felony and afterwards while acting in pursuance of conspiracy and engaged in commission of felony, one or more of such persons commit murder, then all conspirators are guilty of murder, was harmless because evidence warranted Jury's finding that coconspirators had agreed to larceny of small store building knowing that proprietor was present, and that it was possible that proprietor would hear noise and try to intercept persons present in commission of felony.

2 HOMICIDE.

Coconspirators are equally guilty of murder directly resulting from discovery and resistance to crime being committed as originally planned, although murder, as part of it, had not actually been agreed upon, and had not been considered.

HON. S F. DAVIS, Judge.

HON.S. F. DAVIS, Judge.

Robert Woodward was convicted of murder, and he appeals. Affirmed.

Affirmed.

H. F. Jones, of Belzoni, for appellant.

In all cases of a felony an indictment is jurisdictional, and without an indictment no one may be prosecuted under section 27 of the Constitution for a felony.

State v. Sansome, 133 Miss. 428, 97 So. 753; Pruitt v. State, 139 So. 861.

Criminal conspiracy between the defendant, Robert Woodward, and Will Dixon was not proven by any testimony, not even by that of Will Dixon. He, on the contrary, specifically denies any conspiracy, for any purpose.

Conspiracies may, indeed, be proven by circumstances, but what circumstance is there in this case proving a conspiracy to either commit a homicide, or to commit any other offense. There is only one circumstance remotely connecting this defendant with the killing, and that is the possession of a small portion of the money.

In commenting upon the seventh assignment of error, attorney for the State states: "Appellant charges that this indictment was drawn under section 985-c, Code of 1930." Not so, it is stated that instruction embodying the principle that where two or more conspire together to commit a felony, and afterwards in pursuance of the commission of such felony, one of them commits a murder, all of the conspirators are equally guilty. It was stated in the brief for appellant that this instruction, not the indictment, was based or attempted to be based upon section 985-c, Code of 1930.

In asking of this instruction was evidently an afterthought of attorney for the state, in view of the unstable character of the testimony of Will Dixon. The principle is based on nothing disclosed by the evidence in this case, either direct or circumstantial.

In the face of all of these circumstances and proven facts, it was necessary to invoke a theory, discrediting the testimony of Will Dixon, and acknowledging that Dixon struck the mortal blows, yet, under a previous conspiracy, fixing reflected guilt upon the defendant, even though he did not do the actual murder, and thus the instruction "that where two or more persons conspire to commit a felony and afterwards while acting together in pursuance of such conspiracy, and while engaged in the commission of such felony, one or more such persons commits a murder, then all of such conspirators are guilty of murder, regardless of which one actually struck the blow which produced death." The theory embraced in this instruction is that Will Dixon actually killed Rustici, by clear inference, and that defendant was present, pursuant to a previous conspiracy, or understanding between Dixon and the defendant. There is not a syllable in this record of direct testimony disclosing a conspiracy. Attorney for the state says, "conspiracy may be shown by circumstances." Where is the circumstance, proven in this record, showing a conspiracy, to kill, to rob, to burglarize, to rape, to commit a felony, if you please?

I cannot think that the case is one where the evidence is so conclusive as that material error can be disregarded as in the Wexler case and the Comings case referred to by appellee in brief.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

This court has held that the presumption of malice that arises from the deliberate use of a deadly weapon is improper in a case where all the circumstances surrounding the killing were shown by eye-witnesses, but I submit that this is one of those cases where the presumption of malice may be indulged in, and that this assault upon Rustici was murderous and done with the deliberate design to effect his death.

Winchester case, 142 So. 454.

A conspiracy may be shown both by direct and circumstantial evidence.

Eaton case, 140 So. 729.

If the evidence of the state is to be believed, and the jury has said by their verdict that they do...