Summary
In Calvin v. State, 175 Miss. 699, 168 So. 75, 76 (1936), the appellant and the victim had been in what witnesses described as a "friendly struggle".
Summary of this case from Parker v. StateOpinion
No. 32088.
May 18, 1936.
1. HOMICIDE.
Whether acts of defendant, in killing deceased with knife after they had been engaged in tussle, constituted manslaughter rather than murder, held for jury.
2. HOMICIDE.
To reduce crime to manslaughter, there must not only be passion and anger, but such circumstances as would indicate that normal mind would be roused to extent that reason would be overthrown and judgment destroyed by passion.
3. HOMICIDE.
Evidence sustained conviction of murder for killing deceased with knife after parties had been engaging in tussle with each other.
APPEAL from circuit court of Coahoma county. HON. WM. A. ALCORN, Judge.
W.W. Venable, of Clarksdale, for appellant.
Counsel for appellant was appointed by the court and was of the opinion at the time of the trial, and is of the opinion now, that defendant was guilty of manslaughter and not murder, which view is reflected in the instructions requested.
Defendant states that he thought deceased was going to whip him again and knew that he could do so. He turned and struck, and he says that he did not intend to kill him but intended to make him let him alone. He did not know that he had killed him, and in this is corroborated by the plantation manager.
As I see it, the question is, does the fact of the assault and battery reduce the homicide from murder to manslaughter?
Preliminarily it is to be noticed that all of the facts of the case are substantially developed in the proof and so there is no room for any play of a presumption of malice.
Lamar v. State, 63 Miss. 265; Cotton v. State, 31 Miss. 504.
If a killing is on a sudden quarrel, and this is found to be the case and is caused by the anger of that quarrel, the offense cannot be murder.
Even though one may have a felonious design to kill, if he killed in the heat of passion, it is manslaughter.
Dye v. State, 127 Miss. 492; Dalton v. State, 141 Miss. 841.
The killing of assailant suddenly and solely under anger aroused by a blow is manslaughter.
Buffalow v. State, 219 Ala. 407, 122 So. 633; State v. Sizemore, 52 N.C. 206; McBryde v. State, 156 Ala. 44, 47 So. 302.
Any assault made with violence or circumstances of indignity upon a man's person, as by pulling him by the nose, if it be resented immediately by the aggressor, and it appears that the person acted in the heat of blood upon that provocation, will reduce the killing to manslaughter.
State v. Edwards, 70 Mo. 480; State v. Michael, 74 W. Va. 613, 82 S.E. 611; State v. Merrick, 88 S.E. 501, 171 N.C. 788; State v. Watson, 82 A. 1086; State v. Kennedy, 84 S.E. 515, L.R.A. 1915, 656; State v. Hand, 86 S.E. 1005, 170 N.C. 703; 29 C.J., Homicide, sec. 120. W.D. Conn, Jr., Assistant Attorney-General, for the state.
To sustain appellant's contention here, there must, of necessity, be no conflict in the testimony showing a homicide which would be classified as manslaughter. If there was evidence tending to show that the killing was with malice or not necessarily in the heat of passion, it would not be proper for the court to limit the jury to manslaughter or not guilty. And where the quality of an act is at issue the jury necessarily has a wide range of investigation.
Williams v. State, 127 Miss. 851, 90 So. 705.
When the court was called upon to pass on this instruction peremptorily charging the jury that it could not convict of murder it was brought face to face with the rule that evidence which tends to establish guilt of crime must be considered most favorable to the state and if there is any substantial, reasonable testimony, which, conceding it is true, sustains the position of the state, the requested peremptory instruction should be refused.
Justice v. State, 170 Miss. 96, 154 So. 265; Redwine v. State, 149 Miss. 741, 115 So. 889; Pruitt v. State, 163 Miss. 235, 140 So. 683; Boutwell v. State, 165 Miss. 16, 143 So. 479.
The appellant, Sam Calvin, was indicted in the circuit court of Coahoma county, at its September, 1935, term, for the murder of one Norman Griffin, was convicted and sentenced to serve a life term in the state penitentiary, from which this appeal is prosecuted.
The testimony of the witnesses varies somewhat as to the exact words and acts that took place, but it is substantially in accord as to the main facts of the case, and shows that Sam Calvin and Norman Griffin engaged in a "tussle" or friendly struggle, more in play than anything else; that Norman Griffin threw Sam Calvin to the ground on his face, and he got dirt in his face and mouth; that Calvin jumped up, using profane language, and said he was going home and get his gun and kill all of them, Norman Griffin's brother-in-law, brother, and sister, being present on this occasion; that Calvin proceeded in the direction of his house and Griffin overtook him and stated to Calvin: "What do you want to go home and get a gun and kill all of us for? You know we have just been playing." The testimony also shows that when Griffin ran up to where Calvin was as he proceeded toward his house, he turned and struck Griffin with a knife in the breast, from which wound he shortly died.
Another witness testified that when Griffin ran up to the appellant, he (Griffin) said: "Come on back and don't get no gun as I was just playing with you."
Another witness testified that what Griffin said to Calvin was: "Come on back boy, us is not mad, us is only playing."
The version of the appellant is that he was not feeling well that morning and objected to tussling and playing; that Griffin, who was a more powerful man than the appellant, jumped on him and beat him up; that, when he started to the house to get the gun, Griffin ran after him; that he told Griffin not to come on him; and that he struck Griffin with a knife to keep him from whipping him (appellant) again.
The main contention on appeal is that the evidence is insufficient to sustain the conviction of murder, and that the instruction requested by the appellant limiting the killing, on the facts, to manslaughter was erroneously refused.
It is contended that it is clear that the appellant did the killing in the heat of anger and that the conviction, under the law, could not be sustained for more than manslaughter; that Calvin was forced into a physical contest; and that his passion was aroused by what happened in the contest not of his own choosing.
The law of Mississippi is liberal on what constitutes manslaughter on the facts, and makes considerable allowance for the frailties of human passion; but the facts here involved do not, per se, constitute manslaughter, and there is no contention in the briefs that it was justifiable homicide. Whether the facts developed constitute, in this case, manslaughter is a question for the decision of the jury. There does not appear in the record to be much to justify reducing the crime to manslaugher. The appellant, when he arose from the struggle, declared his purpose to get his gun and kill Griffin and others, using expletives indicating malice, and it was a question for the jury, even if it would have been manslaughter if the killing had occurred instantaneously, or immediately after the struggle, before there was sufficient time for deliberation and reason. There must not only be passion and anger to reduce a crime to manslaugher, but there must be such circumstances as would indicate that a normal mind would be roused to the extent that the reason is overthrown and that passion usurps the mind destroying judgment.
Of course, there are people who refuse to restrain the infirmities of temper, but the law does not excuse their so doing unless the circumstances are adequate to show great provocation. In the case at bar, we do not find, from the evidence, such a state of facts as would warrant us in setting aside the jury's verdict, and the judgment of the court below will, therefore, be affirmed.
Affirmed.