Opinion
No. 38658.
March 16, 1953.
Homicide — manslaughter — issue for jury.
APPEAL from the circuit court of Calhoun County; T.H. McELROY, Judge.
Jesse Yancy, for appellant.
I. The verdict of the jury was contrary to the law and against the great weight of the evidence.
Under this heading the evidence from the viewpoint of the appellant was discussed in detail in the course of which the following authorities were cited: 26 C.J., Sec. 125; Sec. 2218, Code 1942; Dyson v. State, 26 Miss. 362; Evans v. State, 44 Miss. 761; Scott v. State, 203 Miss. 349; Lomax v. State, 39 So.2d 267; Smith v. State, 6 So.2d 134; Dillon v. State, 196 Miss. 625; Bang v. State, 60 Miss. 571; Blalock v. State, 79 Miss. 517; Ingram v. State, 62 Miss. 142; Godwin v. State, 73 Miss. 873.
II. The lower court should have granted the defendant a new trial because of improper and prejudicial questions asked the witnesses by the district attorney relative to the relations of Jessie Smalley and the appellant and the deceased.
During the course of the cross-examination and also the direct examination of the witnesses who testified in this trial the district attorney persisted, over the objection of the defendant, in propounding questions so framed as to impress the jury that the appellant was living in adultery with Jessie Smalley.
While it is true that the court correctly sustained a part of defendant's objections to these questions, however it cannot be doubted that in view of the number of such highly prejudicial questions asked in the presence of the jury, this incompetent and irrelevant matter in all probability affected the verdict of the jury in this case.
Every defendant in a criminal case must be tried alone for the offense for which he is indicted. This rule of law simply means what it says. I would like to point out that in the case at bar the district attorney repeatedly attempted to degrade the character of the appellant as a man living with another woman and that this was what got him in the trouble that he is now in.
Our Court has said in the case of Cleman v. State, 198 Miss. 519, 23 So.2d 404, the following concerning this: "Appellant's counsel vigorously objected to all this collateral and excessive matter, and repeatedly did so without avail. Incompetent evidence pressed this jury as this was, especially if of an inflammatory character, is presumed to have been harmful, and it is only when we can say with confidence that it had, in all probability or likelihood, no such effect that we may decline to reverse on account of it."
The above case was followed in the case of Buchanan v. State, 204 Miss. 304, 37 So.2d 318. There can be little doubt about what effect incompetent and irrelevant matters of this character has on the jury.
J.T. Patterson, Assistant Attorney General, for appellee.
It is first contended that, "The verdict of the jury was contrary to the law and against the great weight of the evidence."
Appellant's defense is under Sec. 2218(f), Code 1942, which provides that the killing of a human being shall be justifiable, "When committed in the lawful defense of one's own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished."
The only question presented by the case at bar is whether the appellant had reasonable ground to apprehend a design on the part of the deceased to take his life or to do him some great personal injury, and whether or not there was imminent danger of such design being accomplished. Under the testimony in the case at bar, such presented a factual issue to be determined by the jury. The evidence supports the verdict of the jury, and when the jury found appellant guilty of manslaughter, instead of murder as charged, they gave him the benefit of all doubt.
The appellant herein did not testify, which, of course, was his privilege; and the witnesses testifying in his behalf at most show that the deceased had struck appellant one time with an ordinary-sized stick; that the appellant then obtained a pistol and ran out into the front yard and that the deceased followed him. At this point the testimony is conflicting, the State's witnesses testifying that the deceased stopped at the front porch and did not move until after he was shot, while the witnesses testifying for the appellant state that the deceased advanced upon the appellant with the stick.
This case comes within the rule announced by this Court in the case of Ransom v. State, 149 Miss. 262, 115 So. 208.
This Court held to the same effect in the cases of Robinson v. State, 49 So.2d 413; Pratt v. State, 212 Miss. 764, 55 So.2d 453; Knight v. State, 60 So.2d 638; and Boatman v. State, 61 So.2d 784.
In the case at bar, it was for the jury to determine whether the appellant was justified in killing the deceased.
The appellant herein may have apprehended danger to his life or great bodily harm, believing grounds of apprehension just and reasonable, and yet he acted at his peril in killing the deceased. The jury was the judge of the reasonableness of his ground for taking the life of the deceased, and the evidence herein clearly supports the finding of the jury that the killing of the deceased was unwarranted.
Appellant contends that the lower court erred in overruling appellant's motion for a new trial, because of improper and prejudicial questions asked the witnesses by the district attorney relative to relations of Jessie May Smalley and appellant and the deceased. The appellant's character was put in issue by appellant. Moreover, it is obvious from this record, although not fully disclosed, that the state of feeling existing between appellant and the deceased did not arise wholly from the fact that the appellant went to the kitchen to get a glass of water. The record shows that the deceased had repeatedly requested appellant to stay away from the house, and that appellant had persistently returned to the house of Jessie May Smalley. Neither the appellant, nor the deceased, were married to, or related to, Jessie May Smalley.
It was be observed that the State requested, and was granted, a manslaughter instruction, which defined manslaughter and authorized the jury to find the appellant guilty of manslaughter, which the jury determined to do.
The appellant was granted every instruction requested by him, fully stating the law favorable to him.
The conflicting evidence presented an issue to be determined by the jury, and the evidence fully supports the verdict of the jury herein.
The appellant, Jimmie Carter, was indicted for murder for the killing of one Robert Clark, tried and convicted of manslaughter, and sentenced to a term of five years in the penitentiary, from which judgment he appeals.
The main assignment of error argued is that the verdict of the jury was contrary to law and against the great weight of the evidence. We have examined the record and without detailing the evidence of the witnesses, we are of the opinion that the evidence on the part of the state was sufficient to support the verdict of manslaughter. The appellant did not testify in his own behalf, but the testimony of other witnesses tended to establish a case of self-defense. There was a conflict in the evidence and this presented a question for the jury to determine. The weight of the evidence and the credibility of the witnesses was for the jury. There being no reversible error in the record, the judgment of the court below is affirmed.
Affirmed.
Roberds, P.J., and Hall, Holmes and Lotterhos, JJ., concur.