Summary
In Triplett v. State, 159 Miss. 365 at 371-372, 132 So. 448 at 450 (1931), "[t]here was an objection to the admission in evidence of a jumper worn by the deceased at the time of the killing which had supposedly been washed and blood stains removed, * * *."
Summary of this case from Ivey v. StateOpinion
No. 29206.
February 9, 1931.
1. HOMICIDE. Where proof sufficiently showed killing was wrougful, defendant after conviction for manslaughter could not complain that he should have been found guilty of murder.
Where, in a homicide trial, the proof is sufficient to show that the killing was unlawful and wrongful and the jury finds the defendant guilty of manslaughter, the defendant cannot complain that he should have been guilty of murder; in such case the verdict is favorable to the defendant as to the grade of the wrongful killing. Calicoat v. State, 131 Miss. 169, 95 So. 318, cited.
2. CRIMINAL LAW. Homicide. Jury in murder prosecution has right to believe portions of testimony of each of witnesses, rejecting other portions; evidence which tended to establish murder or self-defense warranted conviction for manslaughter, where jury by accepting portions of testimony of each witness might have so found.
Where the testimony for the state in a criminal prosecution tends to establish murder, and that of the defendant tends to establish self-defense, but the several witnesses testifying contradict each other or give divergent views of what took place, a jury has a right to believe a portion of one witness' testimony and reject another portion, and this is true of all witnesses, and where by so doing a possible finding of manslaughter is justified it cannot be said that the evidence does not support a conviction of manslaughter.
3. CRIMINAL LAW. It was presumed on appeal that verdict was correctly recited in judgment or was corrected before jury dispersed.
Where the verdict of the jury, as written on the paper returned to the court, reads, "We the jury find the defendant guilty of maslaughter," but the judgment of the court recites the verdict as, "We the jury find the defendant guilty of manslaughter," the judgment of the court is controlling. It will be presumed on the appeal that the verdict was correctly recited in the judgment, or was corrected at the bar before the jury dispersed, where there is nothing in the record to show the contrary.
4. CRIMINAL LAW. In murder prosecution, admission of jumper worn by deceased, which was in same condition as when taken from his body, except for washing, held not error; permitting jury in murder prosecution to take garments introduced in evidence into consultation room held not error.
The admission in evidence of a jumper, worn by the deceased at the time of the killing, in the trial for murder, which the proof showed was in the same condition as when it was taken from the body except that it had been washed and the blood stains removed, is not error; nor is it error to permit the jury to take garments introduced in evidence into their consultation room for use and examination during their deliberation.
APPEAL from circuit court of Winston county. HON. JNO. F. ALLEN, Judge.
Rodgers Prisock and R.C. Jones, all of Louisville, for appellant.
The verdict of the jury returned in this case finds the defendant guilty of no crime known to law.
The verdict of the jury in this case is in the following words, "we the jury find the defendant guilty of maslaughter." Maslaughter is a compound word, both of which have well defined and established meaning. The rule of idem sonans has no application, nor can it have in this case. There is no incorrect grammar, both words are spelled correctly, ma-slaughter. The rule of idem sonans is only in case of bad spelling.
Wooldridge v. State, 13 Tex. App. 443[ 13 Tex.Crim. 443], 44 Am. Rep. 708.
The verdict of the jury is contrary to the evidence and the law.
The verdict of the jury is contrary to law and void, because the jury returned a verdict contrary to the instructions given to the jury by the court, and relied on by the state and defendant as the law and all the law applicable in the case at bar.
A verdict rendered in a plain disregard of the instructions of the court should be set aside without an examination of the instructions to determine whether they are correct or not.
McAllister v. Rocky Fork Coal Company, 78 P. 595; Haslam v. Barge, 69 Nebr. 644, 96 N.W. 245; Jackson v. State, 118 Ga. 780, 45 S.E. 604; Driskill v. State, 7 Ind. 338; Mahoney v. Dankwart, 108 Iowa, 321, 79 N.W. 134; Boswell v. Draper, 149 Iowa 725; State v. Wong Si Sam, 63 Or. 266, 127 P. 683; Holton v. State, 137 Ga. 86, 72 S.E. 949.
Appellant objected to the introduction of the coat, because the witness testified to the fact that it had been washed and everyone knows that when a jumper is washed it draws up several inches. If the jumper had been the one that the negro was shot in, the place it entered the body through the jumper could not be evidenced, because they failed to bring in the shirt that the dead negro, wore, and it would have been closer to the body than the jumper, and would have been tucked in his trousers and not flying about, in other words, the jumper was not the proper evidence because it was calculated to mislead the jury unless the underwear, and shirt would have been introduced.
Wm. A. Shipman, Assistant Attorney-General, for the state.
Manifestly the jury, after deliberation and consideration of the evidence and the instructions of the court intended to and in truth did find the appellant guilty of manslaughter. This was the crime of which they found the appellant guilty and whether the form in which the word appears in the record is the result of a clerical error on the part of the transcriber or an original mistake in spelling is immaterial.
Cro. Jac. 607; 10 Co. 133a; 2 Rolle, Abr. 147; 1 Chitty Cr. L., 3 Bou. L. Dic., p. 3110.
Errors which cannot mislead and are manifestly clerical afford no ground for an arrest of judgment.
Com. v. McMahon, 133 Mass. 394; State v. Dodson, 16 S.C. 453.
A verdict finding the defendant guilty of "mansluder" was held good as a conviction of manslaughter.
State v. Smith, 33 La. Ann. 33.
A verdict fixing the punishment at two years in the state "penitenilery" was held valid.
Hoy v. State, 11 Tex. App. 32[ 11 Tex.Crim. 32].
Whatever conveys the idea to the common understanding will suffice and all fair intendment will be made to support it.
2 Bish. New Cr. Proc. (2 Ed.), section 1005a; State v. Ryan, 13 Minn. 370; Singleton et al. v. Sodusky, 7 J.J. Mar. Ky. 341; Kellum v. State, 64 Miss. 226; Rolls v. State, 56 Miss. 391.
The jury might well have returned a verdict for murder. They, however, saw fit to convict the appellant of the lesser crime, manslaughter, which does credit to their sensibilities whatever may be thought of their ability of ratiocination. That the appellant escaped conviction of the crime of which, according to the testimony on behalf of the state, he is obviously guilty should be cause for mighty self-felicitation.
This court will not interfere with the jury's finding.
Steward v. State, 154 Miss. 858, 123 So. 891; Matthews v. State, 148 Miss. 696; Wells v. State, 112 Miss. 76; Jackson v. State, 105 Miss. 782; Brown v. State, 103 Miss. 639.
Louis Triplett, the appellant, was indicted for murder in the circuit court of Winston county, and upon trial was convicted of manslaughter and sentenced to twenty years in the state penitentiary; from which conviction he appeals here.
It will not be necessary to set forth the substance of the testimony for the state and for the defendant. Suffice it to say that the tendency of the state's evidence was to make the case one of murder, while the tendency of the defendant's evidence was to make the case one of self-defense. Nevertheless there were numerous witnesses introduced whose testimony is contained in the record, and there is considerable variance in the testimony of the different witnesses, and there was, no doubt, an imperfect seeing and understanding by the witnesses. The state did not ask a manslaughter instruction and neither did the defendant. The only mention of manslaughter in the instructions of the court is in one obtained for the defendant which does not define it but merely says: "The court instructs the jury for the defendant that neither murder nor manslaughter is predicatible of the mere fact that a deadly weapon was used where all the facts of the homicide are before the jury in the testimony of a large number of witnesses."
It is argued that inasmuch as the court did not define "maslaughter" and inasmuch as the instruction on the form of the verdict limited the jury to the three forms of verdict provided for convictions of murder in case the jury found him guilty, that a conviction of manslaughter should not be allowed to stand. In discussing this question counsel recognize the decision of the court in Calicoat v. State, 131 Miss. 169, 95 So. 318, wherein this court held that a person convicted of manslaughter instead of murder could not complain if the evidence showed that the killing was unlawful and wrongful, although the evidence might show it constituted murder instead of manslaughter. The court in that decision reviewed the prior decisions, some of which had held in accordance with the holding in the Calicoat case and some of which had held the contrary view. It seems that the decision of Calicoat v. State, and others since that decision, make it clear that the court will adhere to the decision there announced. The verdict of the jury in such case establishes that the killing was wrongful and unlawful. The fact that the evidence makes murder rather than manslaughter is a matter of which the defendant cannot complain, as the verdict of manslaughter is favorable to him. Having found that the killing was unlawful and wrongful, he is given a more merciful verdict than he was entitled to. It is true that there was a dissent in one of the cases decided at the time the Calicoat case was decided, in which two of the judges expressed the view on that particular case that the cause should be sent back for retrial. A dissent is an expression of the minority of the court, while the majority opinion speaks the voice of the state. Consequently the dissenting opinion is a mere argument and not the announcement of the law.
However, apart from the decisions referred to, we think on the facts in this case the jury could have found a verdict of manslaughter if they believed certain parts of the testimony and disbelieved other parts of the testimony about which the evidence was conflicting. It often happens that eyewitnesses to a transaction, although all of them may be honest, do not see the transaction precisely alike. Their recollections may differ, and the recollection of one may be better than the recollection of another, or the capacity of one to observe and understand may be superior to that of another. It often happens in cases, and especially those involving the issues of liberty and life, that the testimony that comes from witnesses is a strange conglomeration of truth and error, of fact and fiction, and bias, prejudice, affection, favor or ill-will, or dislike. Different testimony containing the truth of gold and mixed with the dross of error and falsehood is carried into the crucible of the common sense minds of twelve men selected for their intelligence, sound judgment, and fair character, and these minds constituting the crucible of reason often separate the refined gold from the dross. The jury are peculiarly able and in a position to understand the habits and thought of their neighbors and fellow citizens and are admirably equipped to judge as to what is truth and what is fiction or falsehood; they can understand both from observing the witness and his demeanor and fairness or bias and prejudice and his general standing and character, and this will show what credit to give to the testimony and what part to believe and what part to reject. We therefore are of the opinion that the evidence was sufficient to support the verdict.
It is next argued that the verdict of the jury does not find the defendant guilty of any offense known to the law. The verdict of the jury, copied in the record by the clerk separate and apart from the judgment of conviction, reads as follows: "We the jury find the defendant, Louis Triplett, guilty of maslaughter." However, when we turn to the judgment of the court we there find that the jury rendered the following verdict: "We the jury find the defendant, Louis Triplett, guilty of manslaughter." The judgment of the court is controlling, even if there is any merit in the contention, as argued, that the word "maslaughter" is not the equivalent of manslaughter, and that it is composed of two distinct words of well-known meaning. Both the counsel for the appellant and the attorney-general refer to many cases with reference to irregular spelling and recitals in verdicts. We do not deem it necessary, however, in this case to discuss that question. It must be presumed that the court correctly recited the verdict, and if the verdict was ambiguous or doubtful, that the court cleared it up before the verdict was finally received. There is nothing in the record to indicate that this was not done, and we must presume that it was done.
There was an objection to the admission in evidence of a jumper worn by the deceased at the time of the killing which had supposedly been washed and blood stains removed, and a complaint of error in permitting this to be carried into the jury room when the jury retired for deliberation. We have examined this assignment and think it is without merit. The evidence showed that the jumper outside of being washed was in the same condition, but even if it had been erroneously admitted, there is nothing to show, in the light of the evidence in the record, that it had any misleading influences upon the jury. The judgment of the court below must therefore be affirmed.
Affirmed.