Opinion
No. 33821.
December 11, 1939. Suggestion of Error Overruled January 8, 1940.
1. HOMICIDE.
Where evidence warranted conclusion either that shot was fired by accused deliberately in effort to kill victim, so as to render accused guilty of murder, or that it was fired accidentally while accused was engaged in commission of an unlawful act, so as to render accused guilty of manslaughter, conviction of murder would not be disturbed notwithstanding that issue of manslaughter alone allegedly should have been submitted to the jury.
2. CRIMINAL LAW.
Where accused was sentenced to life imprisonment for murder, giving of instruction which allegedly invited the death sentence was not reversible error.
3. CRIMINAL LAW.
Refusal to incorporate in instruction the statement that jury was not impaneled for the purpose of convicting accused was not error.
4. CRIMINAL LAW.
A jury is impaneled in a criminal case as much for purpose of convicting an accused if evidence convinces jurors of guilt beyond reasonable doubt as for purpose of acquitting accused if evidence fails to convince them, so that it is not improper to refuse an instruction on either phase of that question.
APPEAL from the circuit court of Jackson county; HON. L.C. CORBAN, Judge.
Otto Karl Wiesenburg, of Pascagoula, for appellant.
The conviction of murder in this case is against the overwhelming weight of the evidence, the state having failed to prove the premeditation or malice, and the evidence, at the most, tending to make out a case of manslaughter, if that.
Green v. State, 28 Miss. 687, 1 Mor. St. Cas. 788; Hawthorne v. State, 58 Miss. 778; Godwin v. State, 73 Miss. 873, 19 So. 712; Raines v. State, 81 Miss. 489, 33 So. 19; Riley v. State, 109 Miss. 286, 68 So. 250; Cumberland v. State, 110 Miss. 521, 70 So. 695; Patty v. State, 126 Miss. 94, 88 So. 498; Walker v. State, 146 Miss. 510, 112 So. 673; Bennett v. State, 152 Miss. 728, 120 So. 837; Smith v. State, 161 Miss. 430, 137 So. 96; Winchester v. State, 163 Miss. 462, 142 So. 454; Busby v. State, 177 Miss. 68, 170 So. 140; Long v. State, 163 Miss. 535, 141 So. 591; Wesley v. State, 153 Miss. 357, 120 So. 918.
The court erred in granting the state the two instructions requested. These instructions invited the jury to return a hanging verdict, failed to correctly charge the jury as to their power to fix the punishment at life imprisonment, and have no basis in the evidence.
Mathison v. State, 87 Miss. 739, 40 So. 801; Spain v. State, 59 Miss. 19; Sec. 1293, Code of 1930; Lemon v. State, 166 Miss. 548, 146 So. 637.
The court erred in refusing to grant the defendant the one juror instruction requested by him, as follows: "The court instructs the jury for the defendant, that you are not empaneled for the purpose of convicting the defendant, and you are not authorized to convict him until the state has shown beyond every reasonable doubt and to a moral certainty the guilt of the defendant, and that it is the duty of each and every juror to decide the issue in this case for himself, and if after hearing the instructions of the court, and the testimony of the witnesses, and after free consultation with fellow jurors, any juror has a reasonable doubt as to whether the defendant is guilty of the charge or not, it is his duty, under his oath, to stand by this conviction favorable to a verdict of not guilty, even though it may result in a mistrial of this case, and the jury not agree."
Mitchell v. State, 176 Miss. 873, 170 So. 534; Millette v. State, 167 Miss. 172, 148 So. 788; Speaks v. State, 161 Miss. 334, 136 So. 921; Thomas v. State, 103 Miss. 800, 60 So. 781; Bell v. State, 89 Miss. 810, 42 So. 542; Ammons v. State, 89 Miss. 369, 42 So. 165; Lawson v. State, 87 Miss. 562, 40 So. 325.
The court erred in refusing to grant the following instruction for the defendant: "The court instructs the jury for the defendant that if there be any fact or circumstance in this case susceptible of two interpretations, one favorable and the other unfavorable to the accused and when the jury has considered such fact or circumstance with all the other evidence, there is a reasonable doubt as to the correct interpretation, they must resolve such doubt in favor of the accused, and place upon such fact or circumstance the interpretation favorable to the accused."
Wharton's Criminal Evidence, (11 Ed.), Sec. 71, page 83. W.D. Conn, Jr., Assistant Attorney-General, for the State.
The murder theory was properly presented to the jury. It was for the jury to determine whether this felonious killing was murder or manslaughter.
Woods v. State, 64 Miss. 761, 2 So. 247; Jones v. State, 169 Miss. 292, 152 So. 879; Eaton v. State, 163 Miss. 130, 140 So. 729; Motley v. State, 172 Miss. 148, 159 So. 553; Busby v. State, 177 Miss. 68, 170 So. 140.
There was no error in the state's instructions. If appellant's contention that the state invited a hanging verdict is sound, it is obvious that defendant was not prejudiced thereby since the jury did not return such verdict.
Defendant's instructions were properly refused.
Mitchell v. State, 176 Miss. 873, 170 So. 534; Dunbar v. State, 159 Miss. 603, 132 So. 748; Williams v. State, 163 Miss. 475, 142 So. 471.
From a conviction of the crime of murder, and a sentence of life imprisonment in the state penitentiary, this appeal is prosecuted mainly for the purpose of having the Court determine whether error was committed in the trial court in submitting to the jury the question of the appellant's guilt of murder, instead of limiting the issue to manslaughter, as being the highest degree of the offense of which he could be convicted under the evidence. Other alleged errors are assigned, and will be herein considered.
On behalf of the state the proof disclosed that the appellant committed what appeared to be an unprovoked assault on the deceased by catching him in the shirt collar with one hand while he pulled a pistol from his pocket with the other. That thereupon a by-stander caught appellant's arm in an effort to keep him from shooting the deceased, and succeeded for a time in causing the pistol to be pointed down toward the floor. Finally, the appellant was able to free his arm from the hold which the by-stander had, and upon doing so the pistol was immediately fired.
We are of the opinion that under all of the facts and circumstances the jury was either warranted in reasonably concluding that the shot was fired by the appellant deliberately, in an effort to kill the deceased, so as to render him guilty of murder; or, on the other hand, that it was fired accidentally while the appellant was engaged in the commission of an unlawful act, and under such circumstances as to render him guilty of manslaughter. The jury adopted the former theory, and we do not feel justified in disturbing the verdict in that behalf.
It is also contended that one of the instructions given on behalf of the state invited a death sentence. However, it did not result in causing the jury to render such a verdict, and in our opinion the instruction is not susceptible of that interpretation. Nor do we think that there was any error in the granting or refusal of other instructions, such as would be prejudicial to the rights of the accused. One of the refused instructions requested by the appellant sought to instruct the jury that it "was not empaneled for the purpose of convicting the defendant . . ." Abstractly speaking, that observation is correct, but the court was not in error in refusing to embody the statement in an instruction, since it is equally true that a jury is empaneled in a criminal case as much for the purpose of convicting a defendant if the evidence convinces the jurors of his guilt beyond a reasonable doubt, as for the purpose of acquitting him if the evidence fails to convince them beyond every reasonable doubt of his guilt. Therefore, it is not improper to refuse an instruction on either phase of that question. If the defendant obtains an instruction that the jury is not empaneled for the purpose of convicting, and the state should obtain one to the effect that the jury is not empaneled for the purpose of acquitting, then the jurors might well inquire as to the purpose of their being empaneled at all.
The issue of murder or manslaughter, as well as that of innocence, was fairly presented to the jury by the instructions, and we find no ground for a reversal of the case on the evidence.
Affirmed.