Opinion
No. 27994.
June 3, 1929.
1. HOMICIDE. Instruction precluding conviction of other than manslaughter held properly refused under facts showing murder.
Instruction that jury could not find defendant guilty of murder but if they found him guilty at all it must not be for a higher degree of homicide than manslaughter held properly refused, where eyewitnesses to tragedy testified distinctly and positively to state of facts which made out clear case of murder.
2. CRIMINAL LAW. Defendant not having jury polled could not introduce jurors as witnesses on motion for new trial to impeach their verdict.
Where defendant did not take advantage of right to have jury polled when jury returned verdict finding defendant guilty and certified they were unable to agree as to his punishment and asked mercy of court, defendant could not reach matter by introducing jurors as witnesses on motion for new trial to show that they would not have returned such verdict if they had known punishment it would carry.
3. CRIMINAL LAW. Jurors may not impeach their verdicts.
Jurors may not be heard as witnesses to impeach or qualify their verdicts.
4. CRIMINAL LAW. In verdict finding defendant guilty and stating jury was unable to agree regarding punishment "and ask mercy of court," quoted words must be treated as surplusage.
In murder prosecution, where jury returned verdict, "We, the jury, find defendant G.B., guilty as charged in indictment and certify that we are unable to agree as to his punishment and ask mercy of court," after having been informed that if jury found defendant guilty but were unable to agree on punishment then it would be court's duty to sentence defendant to penitentiary for life, words, "and ask mercy of court," must be treated as surplusage.
5. CRIMINAL LAW. Assignments of error not argued are waived.
Assignments of error not argued are waived.
APPEAL from circuit court of Lawrence county, HON. J.Q. LANGSTON, Judge.
E.B. Patterson and C.E. Gibson, both of Monticello, for appellant.
Where there was conflicting evidence as to who was the aggressor, and where testimony shows that the killing was done in the heat of passion and without malice, it was error to refuse the following instruction:
"The court instructs the jury for the defendant that they shall not find defendant guilty of murder, but if they find the defendant guilty at all it must not be for a higher degree of homicide than manslaughter."
112 So. 685; Pigott v. State, 65 So. 583, 107 Miss. 552.
It was error on the part of the court to refuse the defendant the right to show on motion for a new trial, that the jury intended to bring in a verdict that would have permitted the court to give the defendant a lesser sentence.
J.A. Lauderdale, Assistant Attorney-General, for the state.
A high degree of sudden and resentful feeling will not alone palliate an act of homicide committed under its influence. It is essential that the excited and angry condition of the party committing the act, which would entitle him to the milder consideration of the law, should be superinduced by some insult, provocation, or injury, which would naturally and instantly produce, in the minds of ordinarily constituted men, the highest degree of exasperation.
Preston v. State, 25 Miss. 383.
Where defendant did not poll jury when jury returned verdict he could not thereafter use jurors as witnesses to impeach their own verdict.
Sykes v. State, 92 Miss. 247.
The court has repeatedly held that that part of the verdict of the jury requesting the mercy of the court is surplusage, and it is not necessary that the court pay any attention to such recommendation.
McDonald v. State, 109 So. 29; Penn v. State, 62 Miss. 450; State v. Harris, 10 So. 478.
Errors not assigned and assignments of error not argued are waived.
Pope v. State, 108 Miss. 706; Davis v. State, 67 So. 662; Harris v. State, 142 Miss. 342; Chase v. State, 147 Miss. 694.
The appellant contends that it was error in the trial court to refuse the following instruction requested by appellant: "The court instructs the jury for the defendant that they shall not find defendant guilty of murder, but if they find defendant guilty at all it must not be for a higher degree of homicide than manslaughter." Of the several eyewitnesses to the tragedy more than one testified distinctly and positively to a state of facts which made out a clear case of murder. In the face of this testimony, it would have been highly improper to grant the quoted instruction, which, under its plain terms, would have been a peremptory instruction in so far as concerns the charge of murder. No distinct or separate instruction on manslaughter was requested, and we are therefore not called on to express an opinion whether the case was such as to have justified a separate manslaughter instruction as one of the units among those to be given.
The verdict of the jury was in the following form: "We, the jury, find the defendant, Governor Bridges, guilty as charged in the indictment and certify that we are unable to agree as to his punishment and ask the mercy of the court." The court, at the request of the state, had instructed the jury as to the several verdicts they might render, together with the consequences of each, and furnished to the jury the forms for said several verdicts, the second item of said instruction being as follows: "Second. `We, the jury, find the defendant, Governor Bridges, guilty as charged in the indictment and certify that we are unable to agree as to his punishment,' in which event it will be the duty of the court to sentence the defendant to the state penitentiary for his natural life." Thus, the jury was distinctly informed as to what would be the result of a verdict returned in that language. No request was made to poll the jury, so far as the record shows; but on motion for a new trial, an attempt was made to have four former members of the jury qualify their verdict by their testimony then offered that they did not understand the consequences of the verdict, and would not have voted for that sort of verdict had they known it would carry life imprisonment; that they thought the addition of the words, "and ask the mercy of the court," would enable the court to impose a lesser sentence.
In this state, a party has the right to have the jury polled, and this is a right which, if possible, the court must grant when the request is made before the verdict has been finally delivered, and before the jurors have been discharged from the case and have dispersed. James v. State, 55 Miss. 57, 30 Am. Rep. 496; Archer v. State, 140 Miss. at page 610, 105 So. 747; 16 C.J., pp. 1098, 1099. Among other reasons for the allowance of the right to poll is that if there be any informality or obscurity in the verdict, the same may be then and thereby corrected. And that opportunity being thus provided while the verdict is yet in fieri, it is not permissible for a party to pretermit the poll and after the jury is dispersed then seek to reach the matter by introducing the jurors as witnesses on a motion for a new trial. It is then too late, for the jurors are no longer jurors in the case but are mere witnesses, as to whom the rule is universal that jurors may not be heard as witnesses to impeach or qualify their verdicts. 16 C.J., pp. 1236 et seq.; Temple v. State, 105 Miss. 449, 62 So. 429; Smith v. State, 103 Miss. 356, 60 So. 330; McGuire v. State, 76 Miss. 504, 25 So. 495. In the state of case before us, the words, "and ask the mercy of the court," must be treated as surplusage. Smith v. State, 107 Miss. 574, 65 So. 498, and cases therein cited.
The other assignments of error are not argued, and are therefore waived.
Affirmed.