Opinion
November 8, 1948.
1. Homicide — trial — immaterial error.
Where from all the evidence the guilt of the accused is so manifest that no reasonable jury could have reached any other verdict than a conviction, mere procedural errors will not reverse.
2. Criminal law — unwritten law no legal defense.
Where all the evidence, including the properly admitted confession, discloses that the homicide was deliberate, was not in self-defense, nor in the heat of passion, nor on sudden provocation, the fact that it was prompted by the so-called unwritten code does not present a defense to be entertained by the courts.
Headnotes as approved by Alexander, J.
APPEAL from the circuit court of Franklin County; HUGH V. WALL, Special J.
L.L. Forman, for appellant.
There is an abundance of evidence from the State's witnesses in this case that Ames, the deceased, had not only crept into the home and into the family life of this appellant, but had forcibly, with threats of violence and with deadly weapons, driven this defendant out of his home and out of his wife's bed, and was continuing to do so. It is shown conclusively by the evidence that this appellant didn't even dare to remonstrate with his wife about this illicit relation, that he didn't even dare to move his wife and personal belongings away from this illicit relation, that if he even undertook to make objections to this situation he was cursed, threatened, abused, assaulted and beaten and run away from his home at the muzzle of a rifle and under the threats that if he returned he would be killed on sight. It is further shown by the evidence that when he had fled from his home and been in hiding for two days and nights and when he tried to go back to his home he was advised that if he allowed himself to be seen about his own home or in the town of Roxie by the deceased he would be shot and killed immediately. So, in an effort to steal his way back into his own home for his clothes and his Army discharge, things that were necessary when he applied for employment anywhere, he found the deceased watching for him, waylaying him with a deadly weapon at hand, and having been advised just a few hours before that if deceased laid eyes on him he would shoot him on sight, the only thing for him to do was to take advantage of the opportunity that momentarily presented itself and fire the first shot. Appellant well knew that if he were seen by the deceased it would be only a question of a few seconds when he would be shot and killed by the deceased and the only thing therefore left for him to do was to take advantage of those three or four seconds that he had to his credit and fire the first shot. Now, we grant that at the moment the deceased was shot he was not making an overt act toward shooting the appellant, but the only reason why he was not engaged in an overt act at the time was that he was within a few seconds of seeing appellant and had he seen appellant coming toward his own home after his clothing and his discharge, deceased, judging by his conduct in the past and his threats just an hour or so before the homicide occurred, would have immediately raised his gun and fired at appellant.
George H. Ethridge, Assistant Attorney General, for appellee.
Something is said in the appellant's brief about the unwritten law and if the appellant was a white man no indictment would even have been found in the case. The term "unwritten law" in its legal signification indicates the common law of England as modified by our own institutions. It was never a justification for the killing of another for violating the marital rights of another, but to avail of the reduction of the sentence to manslaughter. It would require showing that at the time of the killing the parties were inflagrante delicto and the killing was caused by the overthrow of reason by anger and passion due to that fact. It never did excuse a killing even under such circumstances. What in popular parlence has come to be called the "unwritten law" is not a law at all, but was a mere refusal of grand and petit juries to indict or convict in such cases where the marital rights of a man were being invaded by another. It was really no law, but contrary to the law, both by statute and by the common law. The jury had all the facts before them in this case and could rightfully conclude that the killing was the result of long hatred and ill will and that it was malicious as well as unlawful. The jury gave the appellant the utmost benefit of the law as it is allowed in such cases and no reversal can be had on the ground that the defendant was deprived of any right in this particular matter.
Appellant appeals from a verdict and judgment of conviction for murder in which a sentence of life imprisonment was imposed. The assignments of error include (1) that the verdict is against the law and the evidence; (2) that certain evidence was improperly introduced upon behalf of the State; and (3) the granting and refusing of certain instructions.
We dispose of the first contention at once. The confession of the defendant, which we hold can be properly admitted, the facts of which were corroborated by several witnesses, discloses a case of deliberate murder. Under point two, the objection is directed chiefly to the conduct of the special trial judge, who, on several occasions, interpolated questions during the examination of the State's witnesses. Had these interpositions been made on behalf of the defendant, or to clarify uncertainties in defense testimony, it would have lessened the risk of impropriety.
The purpose of the learned special judge is undoubtedly above censure. That his course was intended to be helpful, however, is not as controlling as the fact that it was probably helpful only to the State. Cf. Breland v. State, 180 Miss. 830, 178 So. 817, and authorities therein cited.
We do not set out the several excerpts from the Court's personal examinations since they are not such as would be reproduced in another case. (Hn 1) Suffice it that, while we are moved to a disapproval of this practice, we find the guilt of the defendant so evident that no reasonable jury could have reached any other verdict.
It is true that (Hn 2) the defendant obeyed an impulse oftimes acknowledged by the informal verdict of a community as conforming to an unwritten code, given sanction not by law but by the primal forces of outraged honor, wherein the futility of peaceable abatement leads to the destruction of the guilty actor and stimulates irresistable emotions of revenge. Such consideration, made the subject of argument by counsel in the briefs here, and doubtless before the trial judge, are materials for an appeal not to the courts but to the forum of popular sympathy where affectations of gallantry and outraged dignity are often vouchsafed a hearing. As stated, the homicide was not committed in the heat of passion, nor in self-defense, nor upon sudden provocation. It was murder or nothing. That it was the product of multiplied instances of grievous personal wrongs whose accumulated weight tipped the scales of defendant's indecision toward a settled purpose to kill his oppressor serves to emphasize the element of deliberation. Having sought to take the law into his own hands, the law must in turn take the defendant into its own.
We find no error in the instructions for the State. In all of them, the jury is authorized to accept an alternate verdict of manslaughter. We find no reversible error in the refusal of instructions requested for the defendant.
Affirmed.