Opinion
No. 36187.
March 24, 1947. Suggestion of Error Overruled April 14, 1947.
1. CRIMINAL LAW.
The jury having the power to inflict the death penalty upon conviction of robbery with a deadly weapon, the Supreme Court could not disturb that action unless the record discloses some error justifying the court in so doing; the court's power being limited to passing upon errors disclosed by such review.
2. CRIMINAL LAW.
In prosecution for robbery with a deadly weapon, error in instructing jury to find that the accused had used a deadly weapon, if it found him guilty at all, was cured by further instruction that even if jury found defendant guilty of robbery, it should not find that the robbery was with a deadly weapon unless the evidence convinced the jury of that fact beyond a reasonable doubt.
ON SUGGESTION OF ERROR. (In Banc. April 14, 1947.) [29 So.2d 921. No. 36187.]1. ROBBERY.
In prosecution for robbery with a deadly weapon, whether defendant's testimony that he exhibited a mere paper cap pistol and not a real pistol was true, was for jury.
2. CRIMINAL LAW.
Where issue in prosecution for robbery with a deadly weapon was whether defendant was armed with a real or toy pistol, in light of instructions as a whole, jury could not be presumed to have rendered a verdict against defendant carrying infliction of death penalty without believing beyond a reasonable doubt that weapon exhibited was a real pistol.
SYDNEY SMITH, C.J., and ROBERDS, J., dissenting.
APPEAL from the circuit court of Pike county. HON. J.F. GUYNES, J.
Percy K. Alford, of McComb, for appellant.
The appellant, with three other parties, all negroes, on January 26, 1946, robbed Frank Mead at the service station where he worked, located in McComb, Mississippi. A pistol, alleged by the State and by the prosecuting witness, Frank Mead, to have been a deadly weapon, but testified by the defendant to have been a cap pistol that had been "fixed up" with wax and shoe polish, was alleged to have been used. The only two witnesses who testified that they had seen the instrument alleged to have been a "deadly weapon, to-wit a pistol," were the prosecuting witness, Frank Mead, and the defendant. A severance was granted and John Augustine, the appellant in this case, was tried, convicted and sentenced to death. During the trial of the case, State's witness F.W. Massa was allowed, over the objection of the appellant, to testify orally to the contents of an alleged written confession, allegedly made to an officer of the Federal Bureau of Investigation, without requiring the State to produce the written confession in order that the whole might be considered. The only witness who testified from actual knowledge as to the character of the instrument alleged to have been used was appellant, and he said they had only a cap pistol. He had actual knowledge as to what it was from having handled it. The only other witness to testify as to the character of the instrument alleged to have been used was the prosecuting witness, Frank Mead, who testified that he got a "good look" at the instrument from several feet away, but never handled or examined it. No actual pistol was introduced in evidence or found on any of the defendants at the time of their arrest, or ever connected with them in this case except by the lone witness, Frank Mead, but a cap pistol was produced by the State at the trial as having been found in the car in which some of the defendants were taken at the time of their arrest, but was not introduced in evidence, but was referred to by the district attorney in his cross-examination of the appellant.
The court erred in permitting oral testimony over the objection of the defendant by the State's witness F.W. Massa to the contents of an alleged written confession, without requiring the State to produce the writing itself, and in refusing to strike out testimony of R.L. Miller on motion of the defendant.
McCann v. State, 13 Smedes M. (21 Miss.) 471; Lewis v. State, 173 Miss. 821, 163 So. 387-8; Davis v. State, 144 Miss. 551, 110 So. 447.
The court erred in submitting this case to a jury under the statute with relation to robbery with firearms, for the reason that the evidence in regard thereto was insufficient to sustain any verdict under this statute.
Fortenberry v. State, 190 Miss. 729, 1 So.2d 586-7; Cittadino v. State, 199 Miss. 235, 24 So.2d 93; Bogan v. State, 176 Miss. 655, 170 So. 282.
The court erred in granting Instructions 1-3 for the State and in so instructing the jury. This is a case where the guilt or innocence of the appellant is not at issue. The only question involved was the degree of punishment which the jury could fix. The appellant himself took the stand and admitted his participation in said robbery, but denied that any pistol was used other than a cap pistol, and the man robbed said the property was taken by the defendants doubling up and overpowering him. In view of this set of facts, the Court erred in granting Instructions 1 and 2 for the State, for the following reasons: "Instruction No. 1. The Court instructs the jury for the State that in the event you find the defendant, John Augustine, alias Skinny Augustine guilty, you may return either one of the following verdicts: 1. `We, the jury, find the defendant John Augustine guilty as charged, and fix his punishment at death in the electric chair.' (In which event it will be the duty of the Court to sentence the defendant to death in the electric chair) or, 2. `We, the jury, find the defendant John Augustine guilty as charged.' (In which event it will be the duty of the court to sentence the defendant to serve a term of years in the State Penitentiary)." Thus we see that the jury was specifically charged by the court not to consider the testimony of the defendant that a cap pistol was used and to presume conclusively at the outset of its deliberations that a deadly weapon was used; in short, the court peremptorily instructed the jury that a deadly weapon was used, and further precluded the jury from considering the testimony of the State's own witness, Frank Mead, that he was robbed by physical force. The jury was further precluded from considering the defendant guilty of robbery without firearms in that no provision was made allowing a verdict other than "guilty as charged" under Ch. 328, Laws of 1932.
It was further error for the court to instruct the jury that they might return one of the above verdicts without requiring the jury to find the defendant John Augustine guilty as charged. The lower court simply told the jury that if appellant was guilty of robbing Frank Mead, regardless of manner or means, he must be punished by life imprisonment or death. Such is not the law of this State.
The court erred in granting Instruction No. 2 in view of the fact that the State was demanding the extreme penalty on direct evidence, and in only requiring the jury to find the defendant "guilty, before you can convict him," and not requiring the jury to find the defendant "guilty as charged" before the jury could return a verdict inflicting the extreme penalty. In view of the fact that the court had under Instruction No. 1 peremptorily instructed the jury that a deadly weapon was used, it seemed that the lower court could not get away from the conclusion that if appellant was guilty of helping rob Frank Mead by whatever means, that is, simply guilty of robbery, he was automatically guilty under Chapter 328, Laws of 1932, and this regardless of any conflicting evidence as to being guilty thereunder.
The court erred in granting Instruction No. 3 for the State, the same being wholly erroneous under the law, irreconcilably conflicting in its terms, and confusing; it attempted to define the crime charged in erroneous terms, charged the jury to go beyond the evidence with reference to the description of a deadly weapon, injected criminal conspiracy between the defendant and one or the other or all of three other persons into the case without charging that the crime charged must have been committed in pursuance of the conspiracy, allowed the jury to find that there was an agreement for joint action among some or all of these alleged parties, whether or not the appellant was a party to the agreement or the offense committed in pursuance thereof, and in not requiring the jury to believe from the evidence beyond a reasonable doubt that there was a joint unlawful intent to commit the alleged crime; it even injected into the case the question of accessory after the fact. This instruction is so confusing that twelve jurors could not possibly read it and agree on its meaning. Instruction No. 3 charges the jury that "if you believe from all the evidence in this case beyond a reasonable doubt that John Augustine, Howard White, Virgil Smith or Alabama Slim acting jointly agreed, etc." Note the disjunctive "or" which in its ordinary meaning, and as understood by the jury, did not require the jury to find that appellant John Augustine agreed with one or more of the other defendants to act jointly; conversely, it only required the jury to believe that any two of the defendants agreed to act jointly. But after this charge injected into the case the question of criminal conspiracy, it does not require the jury to believe from the evidence that this robbery was in pursuance of any conspiracy, if any there be shown.
Instruction No. 3 was further erroneous in that it charges "did then and there wilfully, unlawfully, feloniously and violently take, steal, seize, rob and carry away, this defendant being present and knowingly and wilfully aiding and assisting in so doing, and if you so believe from all the evidence in this case beyond a reasonable doubt then the defendant John Augustine is guilty as charged, and the jury should so find," etc. Hence it required that John Augustine be present only when the property was taken, without requiring the jury to find that appellant, John Augustine, was present and knowingly, wilfully aiding and assisting one or more of the other defendants in the exhibition of a deadly weapon and regardless of his intent, there being no question as to the guilt of the defendant John Augustine of the charge of robbery, but only as to whether or not an actual pistol was used to effect the robbery. This instruction is further erroneous in that it states, "then the defendant John Augustine is guilty as charged and the jury should so find," for the reason that the statement "and the jury should so find" appears to be an instruction by the court to the jury that under the evidence presented in this case they should find the defendant guilty as charged. Instruction No. 3 is further erroneous for it states, "and this is true (that is, defendant must be found guilty) regardless of whether this defendant or Howard White, or Virgil Smith, or Alabama Slim used or exhibited the deadly weapon" (parenthesis ours). This statement when taken in connection with the previous part of the charge is ambiguous and susceptible of many reasonable interpretations, one of which being that it was immaterial whether appellant participated in the use or exhibition of a deadly weapon, or was even present on that occasion and further it appears to be a presumption by the court that the defendants were armed with a deadly weapon. Nowhere in the instruction had the court required the jury to find that all these defendants were acting in concert in exhibiting a deadly weapon and in placing Frank Mead in fear of great bodily harm, nor that appellant was present, or aiding or assisting in either act. This portion of Instruction 3 is flagrantly erroneous in view of Frank Mead's own testimony that he resisted all efforts of the defendants to get his money, his keys, or to get him into the car by pointing the cap pistol at him and that it was only after being physically overpowered that they secured the money, the keys, or put him in the car, in other words, it was not because he feared the cap pistol that he gave up the money, the keys, or got into the car, but only because the defendants overpowered him.
The court erred in denying the motion of the defendant, the appellant herein, to set aside the verdict of the jury and for a new trial.
Conway v. State, 177 Miss. 461, 171 So. 16; Jolly v. State (Miss.), 174 So. 244; Heflin v. State (Miss.), 178 So. 594; Justice et al. v. State, 170 Miss. 96, 154 So. 265.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
Extrajudicial confessions, whether in writing or oral, if freely and voluntarily made, are admissible in evidence.
Tyler v. State, 159 Miss. 223, 131 So. 417.
Oral testimony showing substance of extrajudicial confessions as well as signed written confession is admissable as primary evidence, it not being secondary evidence.
Tyler v. State, supra.
Compare Steele v. State, 76 Miss. 387, 24 So. 910.
Counsel contends that the court erred in submitting this case to a jury under the statute with relation to robbery with firearms, for the reason that the evidence in regard thereto was insufficient to sustain any verdict under this statute. It will be noted from the record and from the statement of facts in this brief that Mr. Mead positively testified that the weapon used in the robbery was a pistol, and that he saw it, and it was not a toy pistol or a cap pistol. Furthermore, in the various confessions summarized in the statement of facts and shown in the record, the defendant, in talking to these officers, stated that he, the defendant, had an automatic pistol, and stated that he held it on Mr. Mead while they were in the car, and Mr. Mead fully supports him in this fact. Consequently, the fact that the pistol was a real pistol is positively testified to by Mr. Mead, and also in the several confessions which the appellant made prior to the trial and after his arrest, all of which confessions were legally admissible, and the jury were specifically instructed at the instance of the defendant that the weapon must be a real pistol and a real deadly weapon before the jury could convict him of the offense charged.
The appellant says the court erred in granting Instructions 1-3 for the State and so instructing the jury in each and every instance. He further states that this is a case where the guilt or innocence of the appellant is not at issue. The only question involved was the degree of punishment which the jury could fix. A reading of the indictment shows that the appellant was specifically charged with the use of a deadly weapon, a pistol, and the offense charged in the indictment was the robbery with a pistol, a deadly weapon. Section 2367 of the Code of 1942. The offense charged is strictly in accordance with the statute, and the proof fully sustains the charge in the indictment, and it is the putting of fear of immediate injury to a person by the exhibition of a deadly weapon which raises the offense of robbery to a capital felony. There was in the evidence a direct issue between the defendant and Mr. Mead and the confession made by the defendant as to whether a deadly weapon was used or not. The defendant in his testimony undertook to contend that the weapon exhibited was not a deadly weapon but was a cap pistol incapable of inflicting injuries, and by his Instruction No. 1 told the jury they must believe from the evidence beyond a reasonable doubt that the pistol was a real deadly weapon.
Wherever the law confides it to the jury and provides the power to inflict the death penalty for violating the law without enumerating the character of circumstances or the character of the facts that should guide the jury, the jury's discretion is uncontrolled as to what the penalty may be.
Russell v. State, 185 Miss. 464, 189 So. 90; Spain v. State, 59 Miss. 19; Code of 1942, Sec. 2217.
The evidence clearly establishes the guilt of the appellant, and the jury acting upon this evidence have stamped their judgment that the evidence warranted the death penalty.
Argued orally by Percy K. Alford, for appellant, and by Geo. H. Ethridge, for appellee.
Augustine was convicted of robbery with a deadly weapon, and by the jury sentenced to death. He appeals.
We have searched the record in vain for some ground on which to reverse the conviction. We use the expression, "searched," because we have felt it our duty to reverse the case if we could find grounds for so doing. Infliction of the death penalty under the facts of this case constitutes, as a matter of fact although not as a question of law, cruel and inhuman treatment. The jury had power to inflict that penalty, and we cannot disturb that action unless the record discloses some other error justifying us in so doing. This is a court of review. Our power is limited in this case to passing upon errors disclosed by such review. We have no power to pardon offenses or commute sentences. The only error in this record sufficiently serious to call for a reversal was the granting of an instruction to the State under which the jury was told to find that the accused had used a deadly weapon, if it found him guilty at all. Ordinarily that would be ground for reversal in this case. However, this was neutralized and cured by instructions properly granted the defendant, informing the jury that even if it did find defendant guilty of robbery, it should not find that the robbery was with a deadly weapon unless the evidence convinced the jury of that fact beyond a reasonable doubt. It is with great reluctance, therefore, that we are compelled to affirm the conviction and sentence.
Affirmed, and Thursday, May 15, 1947, set for the date of execution.
ON SUGGESTION OF ERROR.
Since the defendant, as a witness in his own behalf, freely admitted that he committed the crime of robbery on the occasion in question by putting his victim, Frank Mead, in grave fear of some immediate injury to his person, and that he took the sum of $78 in money, a billfold and a flashlight from him, the only remaining issue to be submitted to the jury was whether or not the weapon exhibited by him on that occasion was a deadly weapon, to wit, a real pistol, or was merely a paper-cap pistol as testified to by the defendant.
And it is true that the instructions for the State did not submit to the jury his defense that he was merely guilty of robbery without the use of a deadly weapon, but the defendant himself obtained an instruction to the effect that the burden of proof was upon the State to prove that the crime was committed by the exhibition of a deadly weapon, and that the use of such weapon "is a necessary and essential part of the crime alleged against this defendant and that unless the State has offered evidence which absolutely convinces you and each of you, beyond a reasonable doubt, that a real pistol which was in truth and in fact a deadly weapon was exhibited and used on the occasion set out in the indictment herein, then under the law you can not under your oaths sentence him to death on the charge herein."
It was for the consideration of the jury as to whether or not the testimony of the defendant was reasonable and believable when he said that he committed the robbery by the exhibition of a mere paper-cap pistol. Ordinarily, when a man goes to the place of business of another to rob the owner of his money by putting him in fear, he is prepared to kill if he deems it necessary in order to carry out his unlawful purpose, and the exhibition of a toy or paper-cap pistol is not in keeping with common knowledge and human experience. It is not, therefore, to be presumed that the jury when considering as a whole the State's instructions and that of the defendant hereinbefore quoted from, would have rendered a verdict against him which carried the infliction of the death penalty unless the jury had believed beyond a reasonable doubt that the weapon exhibited was a real pistol.
We are, therefore, of the opinion that the suggestion of error insofar as the instructions are concerned should be overruled, and no other error is assigned that would justify a reversal of the case.
Suggestion of error overruled.
DISSENTING OPINION.
This suggestion of error should be sustained. The appellant was indicted for robbery committed by the exhibition of a deadly weapon, to wit, a pistol. He testified as a witness in his own behalf, freely acknowledged the robbery and his participation therein, but said that the supposed pistol exhibited by him was only an imitation and not a real pistol, describing it and in what the imitation consisted. The question then for the determination of the jury was not whether the defendant was guilty of the crime of robbery, for that he admitted, but whether he was guilty of robbery committed by the exhibition of a deadly weapon, or to state if differently, the only question for the jury's determination was whether a deadly weapon had been exhibited by the appellant. The State's instruction complained of, and referred to in our former opinion, reads as follows: "The Court instructs the jury for the state that in the event you find the defendant John Augustine alias Skinny Augustine guilty you may return either one of the following verdicts:
"1 — `We, the jury, find the defendant John Augustine guilty as charged, and fix his punishment at death in the electric chair.' (In which event it will be the duty of the Court to sentence the defendant to death in the electric chair) or,
"2 — `We, the jury, find the defendant John Augustine guilty as charged.' (In which event it will be the duty of the Court to sentence the defendant to serve a term of years in the State Penitentiary)."
On the evidence, which was solely for its determination, the jury could have returned a verdict of guilty of robbery without the use of a deadly weapon, but they were cut off from doing this by this instruction, under which if they found the defendant guilty at all they must return a verdict of guilty as charged, that is, of robbery by the exhibition of a deadly weapon. The two instructions for the appellant said to cure this error do not, in my judgment, do so. Neither of them are aimed at the returning by the jury of a verdict of guilty without the use of a deadly weapon, but simply charge the jury that they cannot sentence the defendant to death unless they believe that the weapon exhibited was "a real pistol which was in truth and in fact a deadly weapon." As hereinbefore said, the instruction for the State deprived the jury of the right to find the appellant guilty of robbery but without the use of a deadly weapon, and neither of the two instructions for the defendant cure that error.
The original opinion, affirming this case, was written by me under direction and as representing the views of the court. I yielded my individual views. Now that the questions are again presented by sugguestion of error intellectual integrity compels me to say I think the suggestion of error should be sustained, and I join in the dissenting opinion of Chief Justice Smith.